Tribunal decisions

The decision

IAC-FH-CK-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/45687/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27 October 2016
On 13 December 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

KB
(ANONYMITY DIRECTION MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms P Solanki, Counsel, instructed by Lawrence Lupin Solicitors
For the Respondent: Mr T Melvin, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant is a citizen of Portugal, born on 9 January 1979. On 11 November 2014 a decision was made to make a deportation order against him pursuant to the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"). That decision was made as a result of the appellant's convictions on 12 November 2009 for offences of false imprisonment, rape of a male, wounding with intent and robbery. On 12 January 2010 he was made subject to a hospital order under sections 37 and 41 of the Mental Health Act 1983 (as amended).
2. His appeal against the respondent's decision came before First-tier Tribunal Judge Miller ("the FtJ") on 8 March 2016, following which he dismissed the appeal under the EEA Regulations and on human rights grounds. Permission to appeal having been granted, the appeal came before me.
The Grounds of Appeal and Submissions
3. Ground 1 contends that the FtJ erred in applying s.117 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") when considering the appeal under the EEA Regulations. Reference is made in the grounds to the decision in Badewa (ss 117A-D and EEA Regulations) [2015] UKUT 00329 (IAC). It is argued that the FtJ's decision under the EEA Regulations was affected by his consideration of s.117.
4. Ground 2 contends that there was inadequate consideration by the FtJ of the medical evidence which it is argued is relevant to the issues of integration and risk of reoffending. Furthermore, the FtJ had failed to provide any analysis of a senior social worker's report and a nursing report.
5. Ground 3 alleges a failure on the part of the FtJ to give adequate consideration to background evidence in relation to the availability of treatment in Portugal.
6. In submissions, Ms Solanki relied on the grounds. It was accepted that s.117 was applicable, but only in relation to Article 8 of the ECHR.
7. It was submitted that the FtJ had concentrated solely on the appellant's behaviour up to October 2013 but there was evidence which postdated that period which the FtJ had failed to take into account. It was argued that there was an absence of consideration of the senior social worker's report and the nursing report which, to paraphrase the submissions, showed positive engagement on the part of the appellant with his treatment. These were key to the issues of rehabilitation and the level of threat that the appellant could be said to pose.
8. It was submitted that the FtJ needed to consider the prospects of rehabilitation. In the UK there is an established course of rehabilitation that the appellant is undertaking. There was nothing in the background evidence showing that a similar level of treatment or rehabilitation would be available in Portugal. I was referred to aspects of the background evidence that was put before the FtJ.
9. Mr Melvin submitted that it was only necessary for the FtJ to consider the availability of treatment but not the specific treatment that the appellant is benefiting from now. The evidence was that treatment is available in Portugal. Notwithstanding that the information before the FtJ was to the effect that there could be more mental health provision, it is not the case that there is no treatment available. The FtJ was not required to quote large sections of the background evidence. It was a matter for him what he made of that evidence.
10. It was submitted that the FtJ had made a finding on the issue of rehabilitation and integration. He had explained why he concluded that the appellant still represented a risk. He had made clear findings.
11. The reference by the FtJ to s.117 of the 2002 Act at [39] of his decision is not material given the findings of fact made under the EEA Regulations. Given his conclusions in relation to the EEA Regulations, there is no material error of law in his consideration of Article 8. Read holistically, there are clear findings on all aspects of the appeal.
My Conclusions
12. I am not satisfied that there is any error of law in the terms expressed in Ground 1, which could be summarised as the contention that the FtJ conflated the considerations under the EEA Regulations with those under s.117 of the 2002 Act.
13. I readily accept the proposition, as explained in Badewa, that the correct approach is first to decide if the person satisfies the requirements of the EEA Regulations, and in which consideration ss.117A-D have no application. The paragraph of the FtJ's decision about which complaint is made in this respect is [39]. The opening sentence of that paragraph states as follows:
"Against the findings referred to above, I turn to the considerations which I must take into account under Regulation 21(6)".
14. Reg 21(6) provides as follows:
"Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin".
15. It can be seen from reg 21(6) that there are a number of considerations which the FtJ was required to examine. Immediately after the first sentence of [39] he referred to the appellant's age, where he had lived, his qualifications, the fact that he speaks English, and his state of health. He referred to his family in Portugal, his financial prospects, the support he might expect from family in Portugal, and his prospects of employment. He found that there was little evidence of social and cultural integration, referring to his offending from soon after coming to the UK, and having been in prison or hospital for most of his time since his arrest in 2009.
16. He then went on to state as follows:
"This is clearly relevant when considering Section 117 of the Nationality, Immigration and Asylum Act 2002".
17. The FtJ then repeated that although it was said that the appellant had not spent long in Portugal, he nevertheless had close family members there, and indeed close family members in Angola, where he grew up and where he also has children. He stated that there would be no reason why, if he did not wish to remain in Portugal, he could not return to Angola. He then, in the same paragraph, turned consideration to reg 21(5) and the principle of proportionality, undertaking a consideration of the issues to be decided under reg 21(5).
18. At [40] he stated as follows:
"In the light of all that I have said, I find that the respondent's decision is in accordance with the Regulations, and that the appeal must accordingly fail".
He then turned his consideration expressly to Article 8.
19. I cannot see that in the FtJ's analysis of the ground of appeal under the EEA Regulations there was any impermissible consideration of s.117 of the 2002 Act. All that the FtJ was saying at [39] was that social and cultural integration was a relevant factor under s.117, which it is. That, it seems to me, was merely a passing reference to an issue that would require later consideration. It is clear that [39] was firmly focused on the relevant provisions of the EEA Regulations.
20. I am similarly not satisfied that there is any error of law in the FtJ's consideration of the medical evidence. In the grounds at [13] it is said that Dr Rudzinski "confirmed much more than the IJ refers to and considers". There is a summary of Dr Rudzinski's conclusions expressed in her two reports. The summary in the grounds refers, amongst other things, to the appellant in the UK having "family support" and the risks that would accrue without the continued support that he is receiving.
21. However, in the first place, the FtJ expressly referred to the report dated 29 August 2014, at [34], quoting from it. The FtJ also quoted in detail from the report dated 28 August 2014. Those are not the only references to the medical evidence from Dr Rudzinski. The FtJ was plainly aware of everything that Dr Rudzinski had to say about the appellant's present circumstances and the prognosis.
22. It is inaccurate to suggest that the FtJ only focused on the period between August 2009 and 2013, which incidentally the FtJ noted showed that there were no fewer than 46 incidents of verbal and physical aggression between August 2009 and October 2013. He referred to a more recent report from Dr Joseph Mondeh, dated 15 April 2015, quoting from it to the effect that the appellant had made great strides in his treatment, management and his rehabilitation. The FtJ also added, at [34], that he was sure that the appellant would not have been allowed to attend the hearing before him, unaccompanied, had those in charge of his treatment been concerned regarding his stability. The FtJ, in my judgement, was fully aware of, and took into account, the whole span of the medical evidence, not limiting his consideration to what could be said to be adverse factors in relation to his behaviour.
23. As regards the reports from the senior social worker, Michelle Rogers, and the nursing report dated 4 September 2014, from Charles Neil, it is true that there is no reference to these reports in the FtJ's decision. It is argued on behalf of the appellant that in relation to the report from Michelle Rogers, a senior social worker, dated 26 August 2014 and her letter dated 20 April 2015, they indicate that the appellant had made progress in hospital and displayed a willingness to work with staff and access all therapeutic opportunities offered. In her letter there is reference to the appellant having attended placements at a residential home, six hours twice weekly with a view to being placed there soon. The nursing report refers to the appellant having had several periods of unescorted leave from March 2013 and that there had been no incidents of being absent without leave or absconding. The report also refers to there not having been any anti-social verbal aggression, that the appellant has shown good self-care skills and complied with medication and that drug screenings had been negative. There was also no evidence of alcohol abuse according to the report. All of the issues in those reports are said to be relevant to rehabilitation, as well as to the appellant's health, and progress.
24. So far as the social circumstances report is concerned, this was a report prepared for the Hospital Managers, for a forthcoming hearing. It is not a report prepared for the hearing before the FtT. That does not undermine the contents of the report but it is nevertheless important to put the report's remit into context. Although the social worker's report states that the appellant continues to display a willingness to work with staff "and access all the therapeutic opportunities" that are offered to him, that statement must be qualified with reference to what it said at Section 4 of the report to the effect that "To date he remains unwilling to discuss with his Social Worker the issues surrounding his index offences". It is reasonable to assume that therapeutic opportunities would include work around his criminal offending. Similarly, at page 6 of the report under the heading "Conclusion" it again refers to the appellant not fully acknowledging responsibility for the offences.
25. As already indicated, the FtJ did accept that there was evidence that the appellant had made progress in his treatment, management and rehabilitation, at [34]. I cannot see that the material relied on in the social worker's report adds anything of substance to the evidence to which the FtJ referred.
26. So far as the nursing report is concerned, the FtJ acknowledged that the appellant had been allowed to attend the hearing before him unaccompanied, which would not have been permitted had those in charge of his treatment been concerned about his mental stability. Again, I cannot see that the information in the nursing report adds much to the information that was before the FtJ.
27. It was not necessary for the FtJ to refer specifically to every aspect of the evidence put before him. It is plainly not the case that the FtJ only looked at the appellant's circumstances from a one-sided perspective. It was acknowledged that the appellant had made significant progress. I am not satisfied that there is any error of law in the FtJ's failure to refer to the social circumstances and nursing reports. If it was an error of law it is not one that was material to the outcome.
28. As regards the FtJ's consideration of background evidence in relation to the availability of treatment and rehabilitation in Portugal, the reports referred to in the appellant's grounds were evidently taken into account by the FtJ at [36]. He refers to one of the reports being 10 years old at the date of the hearing and both reports being general in their approach, and admitting to the limited value of the research informing the reports.
29. Although it could be said that there was some inconsistency in the FtJ's criticism of Dr Mondeh's report for its brevity and lack of in-depth analysis and yet his reliance on it in terms of treatment in Portugal, I am not satisfied that there is any error of law in the FtJ's assessment of the availability of treatment in Portugal. Those conclusions are, in part, informed by the FtJ's assessment that he did not think that the degree of care that he would require is such that there was likely to be much difference between Portugal and the UK, given that the appellant is living in supported accommodation and was allowed to attend the hearing on his own.
30. In addition, the FtJ referred to the risk of the appellant returning to taking cannabis or drinking alcohol as being dependent to some extent on the level of support that he has in the UK or in Portugal. He pointed out at [37] that such support in the UK would appear to be minimal, if non-existent. He referred to the fact that no-one came to the hearing to give him support, as might be expected. Although there was a letter from his father, it was a one-page document clearly prepared by someone else on his behalf, and was in any event inaccurate in that it stated that the appellant has no close family, just cousins, in Portugal. The appellant was unable to say whether his father still lives with his partner or not, and indicated that they did not currently have a close relationship at all. The appellant had told the FtJ that he had some half-siblings in the UK. They, however, did not attend the hearing or provide statements. His brother in the UK does not even know where he lives, the FtJ noted. He concluded therefore that the appellant has no significant family help upon which he could rely in the UK.
31. That, however, was in contrast to the position in Portugal, as the FtJ set out at [38]. He referred to his having three children aged 13, 14 and 15, as well as a half-cousin there. It is apparent that he was close to his children in Portugal, talking to them two to three times a week. There was no evidence that the children's mother was ill-disposed towards him. Whereas he did not believe that the appellant would derive any help from his family in the UK, he considered it more likely that he would receive such help in Portugal. The FtJ was entitled to take into account the availability of family support in terms of its effect on his rehabilitation, and indeed the relevance of family support is evident from the reports of Dr Rudzinski.
32. It is clear from the FtJ's analysis from [36] onwards that he was well aware of the importance of the issue of rehabilitation. I am satisfied that his conclusions in relation to the risk of further offending in the context of rehabilitation were conclusions that were open to him.
33. In summary, I am not satisfied that the grounds establish any error of law on the part of the FtJ in any respect.

Decision
34. The decision of the First-tier Tribunal did not involve the making of an error on a point of law. Its decision to dismiss the appeal on all grounds therefore stands.

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Upper Tribunal Judge Kopieczek 13/12/16