Tribunal decisions

The decision

IAC-AH-AL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/01991/2012

THE IMMIGRATION ACTS

Heard at Bradford
Determination Promulgated
On 19 September 2013
On 4 December 2013

Before

UPPER TRIBUNAL JUDGE CLIVE LANE

Between

Ahmed Yousef Warsame
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Karnik, instructed by Fadiga & Co
For the Respondent: Mrs Brewer, a Senior Home Office Presenting Officer

REVIEW OF DECISION
(PARAGRAPH 45, THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008)
1. The appellant, Ahmed Yousef Warsame, was born on 9 August 1988 and is a male citizen of the Netherlands. Following a hearing on 28 March 2012, the First-tier Tribunal had allowed an appeal by the appellant against the decision to make a deportation order in accordance with Regulation 21 of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) dated 19 January 2012. Following the grant of permission to appeal to the Upper Tribunal (1 May 2012), that Tribunal (Upper Tribunal Judges Martin and Coker) found that the First-tier Tribunal had erred in law such that its determination fell to be set aside. The Upper Tribunal had remade the decision and dismissed the appeal in a determination promulgated on 29 August 2012.
2. The appellant applied to the Court of Appeal. On 8 November 2012, Upper Tribunal Judge Coker issued a “review and directions”. That title is possibly not accurate given that the document which was issued to the parties indicated that Judge Coker “proposed to review the decision [of the Upper Tribunal] in accordance with Rule 45(a) of the Tribunal Procedure (Upper Tribunal) Rules 2012. Judge Coker wrote at [4], “although this [the review] can be done without a notice I will allow six days from the notification of this proposed review for the parties to make any response, ... which the appeal should be listed for a rehearing in the Upper Tribunal upon the issues identified.” At [3] Judge Coker wrote:
“The appellant sought review of the decision of the Upper Tribunal under Rule 45 of the Procedure Rules on the basis that in the light of MG (EU deportation – Article 28(3) – imprisonment) Portugal [2012] UKUT 268 (IAC) doubt now existed that serious rather than imperative grounds should be the basis upon which the appeal was determined. MG involved a reference to the CJEU to consider the issue of residence. Referral to the CJEU is not a sustainable ground for review; the Upper Tribunal remains bound by extant jurisprudence. However it has come to my attention that on 14 September 2012, the Court of Appeal in FV (Italy) [2012] EWCA Civ 1199 considered in detail the calculations of periods of permanent residence such that the agreement between the parties that this appeal should have been considered on the basis of serious rather than imperative grounds may have been in error. This may have had a material outcome to the appeal had it been considered.”
3. I am aware that Judge Coker unfortunately suffered an accident after the date of the issue of the “review and directions”. On 26 February 2013, she issued internal listing instructions to the Upper Tribunal administration to the effect that the appeal should be listed as soon as possible before a judge of the Upper Tribunal. The matter came on for hearing before me at Bradford on 19 September 2013 when Mr Karnik (instructed by Fadiga & Co) appeared for the appellant and Mrs Brewer, a Senior Home Office Presenting Officer, appeared for the respondent.
4. In his response to the Rule 45 direction, Mr Karnik quoted the decision of the Court of Appeal in FV at [123 – 124]:
“123. In Jarusevicius the relevant question (for the purposes of the present case) was whether time spent in remand on custody could count towards the period of 5 years so as to enable Mr Jarusevicius to establish that he had a PRR in the UK. The UT (Blake J, President and Upper Tribunal Judge Goldstein), analysed all the cases I have referred to and the CJEU’s decision in Dias (analysed above by Pill LJ). The UT concluded that it was bound by this court’s decision in Cesar C to hold that periods spent in detention do not count towards the accrual of the five year continuous “legal” residence to establish a PRR: [57]. It distinguished Tsakouridis, which it noted, correctly, was dealing with the issue of what could lead to the loss of rights that had been gained. The UT stated (at [59 (iii)] that Tsakouridis “suggested that…the continuity of residence for the purpose of Regulation 21(4)(a) (ten years residence) is not broken by a period of imprisonment”. The UT commented (at [60]) that the AIT’s decision in LG & CC that “…prison also broke the continuity of residence [for the 10 year period] may have to be re-examined….”. That is precisely the exercise for us.
124. What conclusions can be drawn from all these cases? First, both HR and Cesar C state that the quality of residence must be the same for both the 5 year continuous period (to obtain PRR) and the 10 year period (to obtain the “enhanced protection”): it has to be “legal residence” ie. residence for the purpose of the Directive. Secondly, neither of the decisions of this court in HR and Cesar C deal directly with the present problem of whether a period of imprisonment during the 10 years immediately prior to the decision to deport means that the EEA national must lose the “enhanced protection” given by Regulation 21(4)(a) in circumstances where that person has established his PRR and has not lost it. (It will be recalled that in HR it was conceded that the appellant could not establish that he had ever obtained his right to PRR by five years continuous residence, because to do so he would have had to count his time in prison). Thirdly, although the AIT in LG & CC held that time in prison in LG’s case could not count towards the ten year period, that decision was based principally on an extrapolation of the reasoning in HR, itself based on a concession, and was made before the CJEU gave its ruling in Tsakouridis. Fourthly, the latter ruling indicates that a period in prison during the 10 years immediately prior to the decision to deport does not automatically mean that the EEA national must lose his “enhanced protection”. All factors have to be taken into account and the touchstone is whether there has been a transfer to another state of the centre of the personal, family or occupational interests of the person concerned and/or the integrating links previously forged with the Member State have been broken.”
5. Mr Karnik submitted that the First-tier Tribunal had accepted the appellant had been arrested in July 2008 for the offence which had triggered the deportation proceedings. By that date, he had resided outside prison lawfully for a period of ten years. By the time he was detained in 2007 he had acquired a permanent right of residence and the brief period of detention in 2007 had not interrupted that right whilst his links within the United Kingdom had not been severed. As a consequence, the appellant should have been considered under Regulation 21(4) of the 2006 Regulations.
6. Mrs Brewer accepted Mr Karnik’s submission and told me that the respondent now agreed, in the light of FV, that “imperative” rather than “serious” grounds should have been applied in the appellant’s case. However, she went on to say that the appellant had failed to show that he had been exercising Treaty Rights during his period of residence in the United Kingdom. She relied on [10] of the refusal letter of 20 January 2012:
“In light of the information available, it is considered that you have not acquired the right of permanent residence in the United Kingdom. An EEA national or a family member of an EEA national who has not acquired permanent residence in the UK may be deported on the grounds of public policy or public security.”
7. Mr Karnik submitted that that reference in the refusal letter was to the length of the appellant’s residence and not to his exercise of Treaty Rights. I agree with Mr Karnik. The refusal letter is organised by reference to a series of headings. Paragraph 7-10 appeared under the heading “Residence”. Paragraph 7-9 (that is, immediately preceding paragraph 10) relate entirely to the period of the appellant’s claimed residence in the United Kingdom from 1997/1998. No reference whatever is made in those paragraphs to the exercise of Treaty Rights either by the appellant or his family members. In addition, I note the grounds of appeal to the Upper Tribunal by the respondent make no reference to Treaty Rights.
8. The Court of Appeal considered “imperative grounds of public security” in FV:
“6. A series of points arise as to the status of the respondent in the United Kingdom and as to the extent to which the power of the Secretary of State to deport him is limited by the requirements of Directive 2004/38/EC of 29 April 2004 (“the Directive”) and Regulations made under it, the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). The purposes of the Directive are set out in recitals which include:
“17. Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.
. . .
22. The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security or public health. In order to ensure a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their family members may be denied leave to enter or may be expelled, this Directive should replace Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals, which are justified on grounds of public policy, public security or public health.
23. Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.
24. Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. . . ”
The subsequent jurisprudence of the CJEU appears to me to adhere closely to the principles stated in those paragraphs.”
9. I have also considered the judgment of the Court of Appeal in LG [2008] EWCA Civ 190 at [14]:
“14. As appears from the emphasised words above in regulation 21(1)-(4), the 2006 Regulations have introduced a new hierarchy of levels of protection, based on criteria of increasing stringency:
i) A general criterion that removal may be justified “on the grounds of public policy, public security or public health”;
ii) A more specific criterion, applicable to those with permanent rights of residence, that they may not be removed “except on serious grounds of public policy or public security”;
iii) The most stringent criterion, applicable to a person “who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision”, who may not be removed except on “imperative grounds of public security”.
The regulations provide no further guidance on the meaning of these expressions.”
10. The Court of Appeal in FV continued at [87]:
“87. It is common ground that the words “imperative grounds of public security” in regulation 21(4) must be considered in the context of, and along with, the ten year issue already considered. Since the two Tribunal decisions, the meaning of the expression has been subject to much consideration. At paragraph 26, I have cited the view of Carnwath LJ that, on the facts in LG, deportation could not be justified on imperative grounds of public security. A similar conclusion was reached by the Tribunal on the facts in J (paragraph 70 above). As has been mentioned earlier in this judgment, the question was also considered in Tsakouridis and PI.”
11. The court concluded at [95] et seq:
“95. In my judgment, the 2007 Tribunal plainly erred in law in its approach to the expression “imperative grounds of public security”. Their conclusion at paragraph 44, cited at paragraph 19 above, cannot be justified and the 2008 Tribunal was correct to find an error of law.”
12. Aikens LJ went on to say at [134]:
“134. On the basis of my analysis above, I must therefore respectfully agree with Pill LJ that the 2007 Tribunal plainly erred in law in its approach to “imperative grounds of public security” and the 2008 Tribunal was correct so to conclude. The question for this court on this issue is whether the 2008 Tribunal itself then erred in law in arriving at its decision that the circumstances of FV did not come within the phrase “imperative grounds of public security” in Regulation 21(4)(a) so that the SSHD was not entitled to deport him. Obviously, the 2008 Tribunal did not have the CJEU decisions of Tsakouridis and PI before it, but, in my view, it does not follow that the Tribunal therefore made a material error in law. The 2008 Tribunal quoted a passage from [32 (5)] of the judgment of Carnwath LJ in the Court of Appeal (first appeal) in LG [2008] EWCA Civ 190, in which he considered, (whilst emphasising that he was not reaching any conclusions) the tests of “serious grounds” and “imperative grounds” of “public security”. In the context of various provisions in the extant version of the Home Office’s “Operational Enforcement Manual”, which contained guidance on the provisions, Carnwath LJ pointed out that neither version of the Manual put before the court had, in his view, given adequate weight to the distinction between “level two” (ie. “serious grounds”) and “level three” (ie. “imperative grounds”). In his view there was a “qualitative difference” between the two. He continued:
“…in other words, level three requires, not simply a serious matter of public policy, but an actual risk to public security, so compelling that it justifies the exceptional course of removing someone who (in the language of the Preamble to the Directive) has become “integrated” by “many years” residence in the host state”.”
13. In this determination at [15], the Upper Tribunal wrote:
“Mr Warsame says he is a changed person. ... letters from his family and family friends who state he has changed and recognises the error of his ways. Whilst we take these into account we are not satisfied that they can displace the disturbing conclusions of the NOMS report as to the likelihood of reoffending. They are letters written in good faith but his family have been unable in the past to exercise any seeming control of his behaviour, including breaches of previous court orders; we do not consider they are able to accurately reflect or recognise what changes have in fact taken place. In reaching our conclusion we have taken into account of his breaches of community orders and that this current period of imprisonment is not his first experience of detention. His criminal convictions have escalated in severity and violence to this current most serious conviction. We conclude that Mr Warsame is very likely to commit further offences on his release and, given the escalation in violence in his crimes, that almost anyone he comes into contact with in the general public has reason to feel violence from him and the NOMS assessment of a 35% possibility of violent reoffending in the twelve months after his release, we find he is a present and sufficiently serious threat affecting a fundamental interest of society, namely the protection of the public from violent crime.”
14. Mr Warsame had been convicted most recently in October 2009 of false imprisonment, possession of a firearm with intent to cause fear of violence and two counts of assault occasioning actual bodily harm. He had received a prison sentence totalling seven years. The Tribunal noted that the appellant did not speak Dutch and that his family were living in the United Kingdom.
15. I have had regard to the jurisprudence which I have quoted extensively above and for the need to consider the degree of integration which the appellant has within the United Kingdom; any negative consequences expulsion may have for him; the public interest concerned with his removal. I have no reason to disagree with Judge Coker’s assessment that “almost anyone [the appellant] comes into contact with in the general public has reason to fear violence from him”. However, given that the appellant is entitled to the “higher” level of protection under the 2006 Regulations I am aware that “considerations of general prevention” (see Tsakourdis [2010] EUECJ C-145/09) are not enough to satisfy the relevant test whilst it is difficult in the present instance to see that the appellant poses “a genuine and present threat to the fundamental interests” of the United Kingdom. I have concluded that, because he is entitled to the “higher” level of protection, that the decision to deport him is unlawful.
16. It follows that I should conclude the review begun by Judge Coker by reversing the decision of 29 August 2012. The First-tier Tribunal had allowed the appeal of the appellant on the basis of the lesser protection provided by Regulation 21(3) of the 2006 Regulations. Had they determined the appeal according to Regulation 21(4) it follows that they would have reached the same outcome, irrespective of whether they have taken greater account of the public interest concerned with the appellant’s deportation or a less sanguine view of the appellant’s risk of reoffending. The errors of law in the First-tier Tribunal determination identified by Judges Coker and Martin should not, in the light of the fact that the appellant is entitled to the higher level of protection, have led them to set aside the determination. I therefore review the determination of the Upper Tribunal by dismissing the appeal against the First-tier Tribunal determination.

DECISION
17. The appeal against the First-tier Tribunal determination is dismissed.

Signed Date

Upper Tribunal Judge Clive Lane