Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/43968/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 15 September 2016
On 20 September 2016

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

HK
(ANONYMITY DIRECTION MADE)
Respondent

Representation:
For the Appellant: Mr S Walker, Senior Home Office Presenting Officer
For the Respondent: Ms B Asanovic, counsel instructed by Patricks Solicitors

DECISION AND DIRECTIONS
1. This is an appeal against a decision of First-tier Tribunal Judge Adio, promulgated on 21 March 2016, in which he allowed the respondent's appeal against a decision to deport him in accordance with Regulation 19(3)(b).
Background
2. The respondent is a national of the Netherlands who entered the United Kingdom during 1999 at the age of 13. Thereafter he acquired 16 convictions for 40 offences. The most recent conviction, on 8 August 2014, was for three counts of handling stolen goods (vehicles) and offending while a community order was in force. On 5 November 2014, the Secretary of State decided to deport the respondent from the United Kingdom. The respondent was removed from the United Kingdom during December 2014 because the Secretary of State certified his case under regulation 24 AA of the Immigration (European Economic Area) Regulations 2006.
3. The appellant's appeal against that decision was allowed by a panel of the First-Tier Tribunal in a determination promulgated on 25 March 2015. That decision was set aside by Upper Tribunal Judge Eshun on 12 January 2016 and remitted to the First-tier Tribunal for the decision to be remade. The appeal came before Judge Adio on 3 March 2016.
The hearing before Judge Adio
4. Only the respondent's partner, LS, gave evidence before the judge. Judge Adio concluded that LS was a truthful witness and consequently accepted her evidence that the respondent had a genuine and subsisting relationship with his three children and that he had lived with LS from 2006 onwards. The judge also found that the respondent was exercising treaty rights in the United Kingdom from June 2000 onwards, however owing to his periods of imprisonment, concluded that he was not entitled to the benefit of enhanced protection based on 10 years' residence. The judge considered that the respondent was entitled to permanent residence and thus the Secretary of State needed to show that there were serious grounds of public policy or public security justifying the respondent's expulsion and had not done so. The judge made an alternative finding, that the deportation of the respondent was disproportionate. He concluded by saying, "I therefore find that the appeal succeeds on the basis of the lowest or base line level of protection."
Error of law
5. The grounds seeking permission argued, firstly, that the judge failed to consider Regulations 4(d)(ii) and (iii) in finding that the respondent was exercising treaty rights as a student between December 1999 and June 2004. Secondly, it was contended that the judge failed to consider Regulation 6 in finding that the respondent was a job seeker between August 2004 and June 2005. Mention was made of the fact that the respondent was sentenced to a 6-month detention and training order during the 5-year period concerned. Consequently, it was said that the judge erred in concluding that the correct threshold was that of serious grounds. Lastly, it was said that the judge failed to give adequate reasons for finding that the respondent was integrated into the United Kingdom, which also contradicted other findings on the same issue. In addition, the judge failed to give adequate reasons for finding that the respondent spoke little or no Dutch or to take into account that the respondent spent his formative years in Holland, including a considerable proportion of his education.
6. First-tier Tribunal Judge Fisher granted permission to appeal on 9 August 2016; commenting that it was arguable that there was nothing in the decision to show that the requirements of Regulation 4(d) were met or that Regulation 6 was considered. Permission was not expressly refused on any ground.
7. There was no response to the notice of appeal under Rule 24 of the Tribunal Procedure (Upper Tribunal) Rules 2008.
The hearing
8. Ms Asanovic handed up a skeleton argument at the beginning of the hearing, which Mr Walker had not previously seen. He was given time to consider it. In essence, it was argued on the respondent's behalf that he did not have to meet the requirements of the 2006 Regulations because the relevant 5-year period preceded the coming into force of the said Regulations. Alternatively, Ms Asanovic argued that it was immaterial whether the judge erred in finding that the respondent had achieved permanent residence because he made "unassailable" alternative findings that the respondent's deportation was disproportionate with respect to the lowest level of protection.
9. Notwithstanding Ms Asanovic's arguments, Mr Walker continued to rely on the grounds of appeal. He argued that the judge misdirected himself with regard to the respondent having a permanent right of residence. The respondent was sentenced to detention at the time he would have achieved 5 years' residence. Accordingly, the judge's findings at [48-51] of the decision were flawed in that "serious grounds" was the incorrect threshold. With regard to the second ground, regarding the respondent's social and cultural integration, the judge failed to take into account that the respondent was a recidivist who had offended throughout his time in the United Kingdom.
10. Ms Asanovic argued that the issue of the period of detention interrupting the 5-year period was not in the Secretary of States grounds. She further argued that the reasons for refusal letter indicated that it was accepted that the respondent had been resident in the United Kingdom in June 2000. It was abusive for the issue of comprehensive sickness insurance to be raised now. On the last point, Ms Asanovic referred to a policy dated 20 June 2011 in which the Secretary of State sought evidence of comprehensive sickness insurance from those seeking residence cards. With regard to the respondent's claim to be a jobseeker, Ms Asanovic stated that this was an autonomous concept in EU law and the current Regulations post-dated the time the respondent was a jobseeker and did not therefore apply. She was unable to tell me whether the respondent was able to satisfy the requirements of the earlier Regulations but argued that both the 2000 and 2006 Regulations were "irrelevant." Her main submission was that the judge made a sustainable alternative finding at [60] of the decision and reasons.
11. In reply, Mr Walker drew my attention to inconsistencies in the judge's findings as to the dates the respondent was said to be in education and detention. Ms Asanovic interjected and referred me to [42] of the decision in this regard. In relation to materiality, Mr Walker asked me to note that while the judge had recorded the respondent's criminal history, he did not weigh that in the proportionality exercise.
12. At the end of the hearing, I reserved my decision on error of law.
Decision on Error of Law
13. The period of residence relied upon by the respondent is between December 1999 and December 2004. At the relevant time, either the Immigration (European Economic Area) Order 1994(5) or the Immigration (European Economic Area) Regulations 2000 were in force. The following provisions, from Schedule 4 to the 2006 Regulations is relevant in relation to transitional provisions regarding periods of residence prior to the 2006 Regulations coming into force.
Periods of residence prior to the entry into force of these Regulations
6.- (1) Any period during which a person ("P") who is an EEA national, carried out an activity or was resident in the United Kingdom in accordance with the condition in subparagraph (2) or (3) is to be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these Regulations for the purpose of calculating periods of activity and residence there under.
(2) P carried out an activity, or was resident, in the United Kingdom in accordance with this sub-paragraph where such activity or residence was at that time in accordance with-
(a) the 2000 Regulations;
(b) the Immigration (European Economic Area) Order 1994("the 1994 Order"); or
(c) where such activity or residence preceded the entry into force of the 1994 Order, any of the following Directives which was at the relevant time in force in respect of the United Kingdom-
(i) Council Directive 64/221/EEC
(ii) Council Directive 68/360/EEC
(iii) Council Directive 72/194/EEC
(iv) Council Directive 73/148/EEC
(v) Council Directive 75/34/EEC
(vi) Council Directive 75/35/EEC
(vii) Council Directive 90/364/EEC
(viii) Council Directive 90/365/EEC; and
(ix) Council Directive 93/96/EEC
(3) P carried out an activity or was resident in the United Kingdom in accordance with this sub-paragraph where P-
(a) had leave to enter or remain in the United Kingdom; and
(b) would have been carrying out that activity or residing in the United Kingdom in accordance with these Regulations had the relevant state been an EEA State at that time and had these Regulations at that time been in force.
(4) Any period during which P carried out an activity or was resident in the United Kingdom in accordance with sub-paragraph (2) or (3) will not be regarded as a period during which P carried out that activity or was resident in the United Kingdom in accordance with these Regulations where it was followed by a period -
(a) which exceeded two consecutive years and for the duration of which P was absent from the United Kingdom; or
(b) which exceeded two consecutive years and for the duration of which P's residence in the United Kingdom-
(i) was not in accordance with sub-paragraph (2) or (3); or
(ii) was not otherwise in accordance with these Regulations.
(5) The relevant state for the purpose of sub-paragraph (3) is the state of which P is, and was at the relevant time, a national.
14. I have also been guided by the decision of this Tribunal in Vassallo (Qualifying residence; pre-UK accession) [2014] UKUT 00313 (IAC) where the following was found;
(i) A person may acquire qualifying residence for the purposes of exercising Treaty rights in respect of periods of residence arising before the UK became part of the European Community on 1 January 1973;
(ii) Similarly, a person may acquire qualifying residence in respect of periods of residence arising before the implementation of the Immigration (European Economic Area) Regulations 2000;
(iii) However, in each case the residence in question must be in accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC (the Citizens Directive) or in accordance with Schedule 4, paragraph 6 of the Immigration (European Economic Area) Regulations 2006.
15. The judge made no reference to the provisions of either the 1994 Order, the 2000 Regulations or the 2006 Regulations in concluding that the respondent was exercising treaty rights for a continuous five-year period. Ms Asamovic asserted that the provisions of the Regulations were irrelevant and in any event there were no requirements for comprehensive sickness insurance, not being a burden on the receiving state or needing to prove jobseeker status at the time in question.
16. At [48] the judge found that the respondent was in education between December 1999 and June 2004 and there is some documentary evidence from the education authority which partially supports this finding. Yet, at [42] the judge notes that the respondent was serving his first custodial sentence from 16 April 2004. That was a six-month sentence, of which he would have served half. Accordingly, the respondent was not exercising treaty rights between mid-April and mid-July 2004. The judge proceeds to find that the respondent was looking for a job between August 2004 and May 2005, however he refers to no evidence in reaching this conclusion. The phrase "looking for a job" replicates what is stated in the respondent's chronology, or as he terms it, "schedule of activities in the UK."
17. The earliest piece of documentary evidence relating to the respondent being a jobseeker is dated 25 January 2006 and appears at [10] of the respondent's supplementary bundle of evidence which was before the judge. That item falls well outside the 5-year period of residence relied upon by the respondent. Accordingly, the judge misdirected himself in finding, on the scant evidence provided, that the respondent was able to demonstrate that the requirements for permanent residence under the 2006 Regulations were met and more importantly, he paid no regard as to whether the requirements of the 1994 Order or the 2000 Regulations were met. I should add that Ms Asanovic made no reference to either the 1994 Order or 2000 Regulations and thus did not establish that the respondent was exercising Treaty rights under either at any time prior to the 2006 Regulations coming into force.
18. It was argued on the respondent's behalf that any error by the judge was immaterial because the judge made a finding that the respondent's deportation was a disproportionate outcome even on the lowest level of protection for EEA nationals. Indeed, at [60] the judge finds "the Secretary of State has not shown that there are serious grounds of public policy to remove the (respondent) from the UK." He proceeds to find that the decision in question is disproportionate and ends the same paragraph by stating; "I therefore find that the appeal succeeds on the basis of the lowest or base line level of protection." There is no indication within the decision and reasons to indicate that the last sentence is an alternative finding. Even if it was, the judge has addressed proportionality between [58] and [60] of the decision with no reference to the respondent's extensive offending. The attention of the judge was focused solely on the respondent's family life with his partner and children. While it is the case that the judge listed the respondent's catalogue of convictions at [4]-[5] of the decision, this was in the context of a summary of the reasons for refusal letter and did not form part of his proportionality balancing exercise.
19. The grounds also raise the judge's inconsistent findings as to integration. In assessing whether the respondent's offending interfered with his integration in the United Kingdom with regard to whether he could benefit from the highest level of protection [46], the judge found that it did; yet in his proportionality assessment [59], the judge found the respondent to be integrated, albeit with no reference to his offending. There is also the matter of the absence of adequate reasons for the judge finding that the respondent, who was born in the Netherlands, was educated there and lived there until the age of 13, spoke very little or no Dutch.
20. In view of the foregoing, I find that the judge materially erred in his conclusion that the respondent acquired permanent residence; in failing to take the respondent's criminal record into consideration in his proportionality assessment and in providing inadequate reasons.
21. The decision of the judge is set aside except in relation to his positive findings as to the respondent's family life with his children and matters related to those children.
22. It would be unfair to proceed to remake the decision without the parties having an opportunity to submit further evidence and submissions and accordingly directions are set out below.
23. No anonymity direction was made by the First-tier Tribunal. In view of the fact that this claim involves minors, I consider it appropriate to continue the said direction in the following terms:
"Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the original appellant. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings. "

Conclusions
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision to be re-made to the extent set out [21] above.
Directions
The appeal is to be listed for a hearing at Hatton Cross before any judge except Judge Adio and Judge Miles
Time estimate is 3 hours
The parties are to provide skeleton arguments and any supporting material which addresses the respondent's compliance or otherwise with the 1994 Order, 2000 Regulations and 2006 Regulations, no later than 10 working days before the hearing of this matter

Signed Date: 16 September 2016

Upper Tribunal Judge Kamara