Tribunal decisions

The decision

IAC-AH-CJ-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/03982/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 24th November, 2016
On 9th December 2016

Before

Upper Tribunal Judge Chalkley

Between

Marian Mieczyslaw Pazderski
(ANONYMITY DIRECTION not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: No appearance
For the Respondent: Mr S Staunton

DETERMINATION AND REASONS

1. The appellant is a citizen of Poland born on 1st January, 1963.

2. On 20th November, 2015 the respondent refused to grant the appellant admission to the United Kingdom under European Community Law. In doing so she said:-

"You have sought admission to the United Kingdom under EC law in accordance with Regulation 11 of the Immigration (European Economic Area) Regulations 2006 on the ground that you are a Polish national. However, on 20th November 2015 you attempted to facilitate the illegal entry into the United Kingdom of fourteen Syrian nationals. I have considered the circumstances of your case and I am satisfied that you would pose a threat to the requirements of public policy if you were allowed admission to the United Kingdom. I have therefore decided that your refusal of admission is justified on the grounds of public policy."

3. The appellant appealed and his appeal was heard by First-tier Tribunal Judge Sangha on 25th May, 2016. The judge did not accept that the appellant's vehicle had been secured as it should have been and checked regularly as the appellant claims, because if it had been it would not have been possible for fourteen illegal entrants to gain access to the vehicle.

4. The judge found that the decision of the respondent was justified on grounds of public policy.

5. Dissatisfied with the decision, the appellant's employers submitted grounds of appeal. First-tier Tribunal Judge Grant believed that it was properly arguable that the judge may have erred in law in giving inadequate reasons for his finding that the appellant was a threat to public policy in the absence of any evidence from the respondent that the appellant conspired to breach immigration laws of the United Kingdom by knowingly attempting to smuggle fourteen Syrians into the United Kingdom.

6. There was no appearance by or on behalf of the appellant and at 11.20am I proceeded to hear the appeal in the absence of the appellant.

7. I read allowed the grounds of application for permission to appeal. In response, Mr Staunton told me that the judge had clearly considered Regulation 21 of the 2006 Immigration (European Economic Area) Regulations in paragraph 10 of the determination and the grounds amount to a disagreement with that decision. The judge has found that the vehicle was not secured or checked as it had been because if it were then it would not have been possible for illegal entrants to have gained access to the vehicle.

8. He told me that the grounds of public policy were the prevention of crime.

9. Regulation 11(1) of the 2006 Regulations requires that an EEA national must be admitted to the United Kingdom if he produces on arrival a valid national identity card or passport issued by an EEA State. Such a person is not entitled to be admitted to the United Kingdom by virtue of Regulation 11 if his exclusion is justified on the grounds of public policy, public security or public health in accordance with Regulation 21. Regulation 21(5) is set out in the judge's determination and makes it clear that the decision must comply with the principle of proportionality, must be exclusively based on the personal conduct of the person concerned and the personal conduct of the person concerned must represent a genuine present and sufficiently serious threat affecting one of the fundamental interests of society. Matters isolated from the particulars of case which relate to considerations of general prevention do not justify the decision and a person's previous convictions do not in themselves justify the decision. In this appeal it is not being suggested that the appellant has any criminal convictions. The appellant has submitted a written statement in which he explained that he stopped for nine hours in Germany on the A7 motorway close to Kassel. He checked the trailer and back door before leaving and saw no signs of any damage in the tarp (presumably meaning the tarpaulin) or signs of a break in. He took another pause of some 45 minutes just before the German/Netherlands border close to the city of Venlo at around 11am. His next stop lasted eleven hours and took place on the border between Belgium and France. Before every departure he checked and found the trailer to be secure. He did not notice any irregularities.

10. On arrival in Calais after passport control he got in line to enter the ferry. While waiting the vehicle attracted the entry of UK border services and during an inspection clandestine "refugees" were found in the vehicle.

11. Also submitted to the judge were copies of instructions to drivers.

12. Where an appellant fails to undertake adequate checks to his vehicle he facilitates the illegal entry into the United Kingdom of foreign nationals if he fails to carry out adequate checks to his vehicle even though he is unaware that they may have boarded it.

13. It is clear from paragraph 11 of the judge's determination that merely because fourteen Syrian nationals were found in the appellant's vehicle, he does not accept that the vehicle was as secured as it should have been and checked regularly as the appellant claims.

14. The exclusion of an EEA national on the grounds of public policy should not occur unless the person's presence or conduct constitutes a genuine and sufficiently serious threat to public policy. The decision to exclude must be strictly justified and proportionate to the objective pursued.

15. The respondent has failed to produce any clear and explicit evidence that the appellant was reckless or was complicit in transporting illegal entrants. I believe that the judge was wrong in law to find as he did without clear and explicit evidence that the appellant was in some way reckless or complicit. It is clear that the evidence before the judge was that the vehicle had been checked by the appellant when he stopped periodically and it has been asserted on his behalf that he carries out the safeguards required by his employers. Those safeguards appear to have been produced solely with the intention of preventing clandestine entrants to Great Britain. There is clear evidence that the appellant underwent company training to identify and prevent threats resulting from the transportation of clandestine entrants to the United Kingdom on 5th January, 2015.

16. For all these reasons I find that the making of the decision by the judge did involve an error in law.

17. There was no evidence before the judge to contradict the evidence submitted on behalf of the appellant that he had properly checked his vehicle at various stages and there was no clear and explicit evidence before the judge that the appellant was in any way reckless or complicit in the transportation of these Syrian illegal entrants.

18. I substitute my decision for that of the judge. The appellant's appeal is allowed.

19. No anonymity direction is made.

Upper Tribunal Judge Chalkley

TO THE RESPONDENT
FEE AWARD

I have allowed the appellant's appeal and therefore make a fee award in his favour.

Upper Tribunal Judge Chalkley