Tribunal decisions

The decision

IAC-AH-SAR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/06886/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 23 May 2016
On 3 August, 2016
Delivered orally

Before

UPPER TRIBUNAL JUDGE GOLDSTEIN
UPPER TRIBUNAL JUDGE McWILLIAM

Between

MR ANDREI BUZA
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms B Smith, Counsel instructed by Messrs Fisher Meredith Solicitors
For the Respondent: Mr P Duffy, a Home Office Presenting Officer

DECISION AND REASONS
1. This is an appeal by the Appellant, a citizen of Romania born on 2 October 1990, against the decision of First-tier Tribunal Judge Chana who, sitting at Hendon Magistrates' Court on 10 June 2015, dismissed the appeal of the Appellant against the decision of the Respondent dated 6 February 2015 to make a deportation order under Regulation 21 of the Immigration (European Economic Area) Regulations 2006 and to refuse his human rights claim. We have noted with some concern that there has been an undeniable and regrettable six month delay between the hearing of this appeal and promulgation. We note however this is not a case where the Judge's conclusion was based essentially on matters of credibility and no doubt this will explain why the grounds of challenge have raised no issue as to the reliability of the Judge's decision because of the effluxion of time. It is however a matter of which we take note.
2. The brief immigration history of the Appellant is that he lived in Moldova for the first seven years of his life and moved to Romania before coming to the UK to join his mother in September 2004 when aged 13 and where he has remained ever since. On 3 October 2013 the Appellant was convicted and sentenced for blackmail at Blackfriars Crown Court for which he was sentenced to a term of five years' imprisonment. His subsequent appeal against conviction was refused. He had no previous criminal convictions in the United Kingdom. The appeal before us is concerned only with the question of whether the First-tier Tribunal Judge made an error of law of a nature such as to require her decision to be set aside. It is only if that question returns a positive answer that it is open to the Tribunal to disturb the decision of the First-tier Tribunal Judge.
3. At the outset of the hearing before us Mr Duffy for the Respondent most helpfully, and if we may say so realistically, accepted that clearly what the Judge had to say at paragraph 80 of her decision was "a conflation of the Immigration Rules with the Regulations" that are of course completely different and in such circumstances he conceded that for that reason alone the decision of the First-tier Tribunal Judge amounted to a material error of law. In such circumstances we did not seek to trouble Ms Smith to address us although we would compliment her on the clarity of her renewed grounds before this Tribunal upon which permission was granted. We have had no difficulty upon our own consideration of the First-tier Tribunal Judge's decision to come to precisely the same conclusions.
4. It would be as well therefore if we were to set out below what the Judge indeed had to say at paragraph 80 of her decision as follows:
"I have taken into account the public interest which is not easily displaced. I find that the public interest will be compromised because the appellant does constitute a present threat to the requirements of public policy and public security".
5. That conclusion has to be seen in the context of the preceding paragraph 79 in which the Judge had this to say:
"79. I find that in this case there are exceptional circumstances where serious grounds of public policy and security trump the appellant's circumstances even though he has resided in this country since the age of 13 and has acquired the right of permanent residence. The appellant by his own conduct has proved that he is a potential danger to women and public policy and the fundamental interests of society dictates that anyone who has committed such a serious crime against a woman makes this an entirely proportionate decision to deport him from the United Kingdom".
6. Indeed it is apparent to us that in granting permission to appeal Upper Tribunal Judge Clive Lane was understandably persuaded to grant permission on the basis that it was arguable that the Judge erred in law by holding that the law "dictates that it will be proportionate to deport any individual who has committed 'such a serious crime against a woman'".
7. At paragraph 41 of her decision the First-tier Tribunal Judge set out in detail the requirements of paragraph 21 of the EEA 2006 Regulations and these of course included the principles enshrined in Regulation 21(5) and (6) that must be applied. It would be as well for us to refer for the purposes of our decision in the present appeal by reference to 21(5) where whether the decision is taken on the grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this Regulation be taken in accordance with the following principles:
"(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; and ...
(e) a person's previous criminal convictions do not in themselves justify the decision".
8. With that in mind we refer to what the Judge had to say at paragraph 79 (above). We have had no difficulty therefore in concluding on this basis alone, that the First-tier Tribunal Judge materially erred on a point of law as in effect the Judge was saying that anyone who committed this offence must be removed and that conviction in itself was a sufficient justification for that removal. Such a conclusion is wholly contrary to the provisions of Regulation 21(5) (c) and (e) - above.
9. Whilst the person's previous conviction is not irrelevant because the fact of it demonstrates a risk of the commission of an offence, the Judge erred because her decision was that the conviction itself justified the decision. Bearing in mind the Appellant was a person convicted of a serious offence the issue for the Judge was not whether on that account he should be deported but whether in the light of that conviction and in the context of the evidence as a whole, it could properly be said that he was a person who represented a sufficient risk to public security.
10. Under Regulation 21 a person's criminal conviction cannot itself justify a decision to remove him. The decision must be based exclusively on the personal conduct of the person concerned. The fact that a person's previous criminal conviction does not in itself justify the decision does not mean that the fact of the previous conviction is irrelevant. This is not a situation analogous to Section 32 of the 2002 Act whereby the fact of the conviction can permit justification for the removal. The question is whether in all the circumstances of the case, including the fact that the person has committed an offence, such a person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Only then does it become relevant to consider whether the decision is proportionate taking into account all the considerations identified in Regulation 21(5) and (6) see MC (Essa principles recast) Portugal [2015] UKUT 00520 (IAC).
11. The parties asked that the appropriate course was to remit this case to be heard afresh with no findings preserved to the First-tier Tribunal before a First-tier Tribunal Judge other than First-tier Tribunal Judge Chana. Indeed Ms Smith rightly pointed out that the error that has been identified has permeated the whole decision and that on that basis alone there should be a fresh hearing.
12. Having considered as to how the decision should be re-made, and after discussion with the parties, we find that we are in agreement with their proposal. It was further agreed that having regard to the error of law found, the length of the hearing (estimated at three hours), the fact that there were at least three witnesses, that there were highly compelling reasons falling within 7.2(b) of the Senior President's Practice Statement as to why the decision should not be re-made by the Upper Tribunal. It was clearly in the interests of justice that the appeal be heard afresh in the First-tier Tribunal. We are further mindful that there are human rights issues arguably relevant to this appeal and the fact that the hearing before the First-tier Tribunal Judge took place almost one year ago only serves to further demonstrate the need for this appeal to be heard afresh.
13. For the reasons we have above given and by agreement with the parties, we conclude therefore that the appeal should be remitted to a First-tier Tribunal Judge other than First-tier Tribunal Judge Chana to determine the appeal afresh with none of her findings preserved to Taylor House Hearing Centre on the first available date. We are informed that for that purpose no interpreter will be required.
Notice of Decision
The making of the decision of the First-tier Tribunal involved an error on a point of law such that the decision has accordingly been set aside.
No anonymity direction is made.

Signed Date 3 June 2016

Upper Tribunal Judge Goldstein