Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/47159/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 27th January 2016
On 7th April 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE D N HARRIS

Between

mr Taofik Babatunde Amao
(ANONYMITY DIRECTION not made)

Appellant

And

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Rai of Counsel
For the Respondent: Mr S Walker, Home Office Presenting Officer

DECISION AND REASONS
1. The Appellant is a citizen of Nigeria born on 23rd December 1962. The Secretary of State's records show that the Appellant was given leave to enter the UK as a visitor for six months on 9th October 2000. It is apparently unclear as to whether the Appellant left the UK after the six month period, however on 26th July 2005 he applied for leave under the 2006 EEA Regulations as the dependant of his spouse Lucilia Morais Pereira Rubio a Portuguese national and on 13th October 2005 he was granted indefinite leave to remain in the UK. The Secretary of State accepts that the Appellant is a family member of an EEA national and as such qualifies for consideration under the 2006 Regulations. The Appellant first came to the adverse attention in 2012. He was involved in a commission of breach of UK immigration law by a non-EU person. On 12th September 2013 he was convicted of conspiracy to commit an act to facilitate the commission of breach of UK immigration law by a non-EU person and was sentenced on 10th October 2013 to 30 months' imprisonment.
2. On 7th November 2013 the Appellant was notified that because of his criminal conviction behaviour in the UK the Secretary of State had decided to make a deportation order against him on the grounds of public policy in accordance with Regulation 19(3)(b) and Regulation 21 of the Immigration (European Economic Area) Regulations 2006. In response to that decision the Appellant completed the notice of liability for deportation questionnaire stating that he was a Nigerian national born in Ibadan. However he failed to provide the exact date of his entry to the UK but stated that he did have a UK born child residing with her mother in the UK.
3. On 18th November 2014 the Secretary of State issued a notice of deportation decision. That decision noted that the Secretary of State concluded that there was a real risk that the Appellant may reoffend in the future and that given the threat of serious harm that the Appellant posed to the public it was considered that his personal circumstances did not preclude his deportation being pursued.
4. The Appellant appealed and the appeal came before Judge of the First-tier Tribunal R Callender Smith sitting at Taylor House on 17th July 2015. In a decision and reasons promulgated on 7th August 2015 the Appellant's appeal was dismissed under the Regulations, the Immigration Rules and Article 8 of the European Convention on Human Rights.
5. The Appellant lodged Grounds of Appeal to the Upper Tribunal on 18th August 2015. The grounds, which are extensive, set out predominantly two contentions that the First-tier Tribunal had materially erred in law. Firstly they contended that the judge had erred by failing to place appropriate weight on the evidence when finding that the Appellant remained a serious risk of reoffending and further had failed to properly determine whether the Appellant was in fact "a genuine threat" in accordance with paragraph 21(5) of the Regulations. Secondly it was contended that the judge had erred as a matter of law by failing to apply the proper legal test to the Appellant. It was contended that the appropriate test should be "imperative grounds of public security" and not confined to "serious grounds of public policy or public security.".
6. On 4th December 2015 First-tier Tribunal Judge Pooler granted permission to appeal. Judge Pooler considered that it was arguable that the judge had failed to take account of all relevant matters in assessing the risk posed by the Appellant at the date of hearing. He also found that it was arguable that the Appellant had failed to make a finding as to whether the Appellant had been resident in the UK for ten years prior to his imprisonment and was entitled to be considered against the test of "imperative grounds." Finally he considered it was arguable that the judge had failed to consider the proportionality of removal either under the 2006 Regulations or in respect of Article 8.
7. On 16th December 2015 the Secretary of State responded to the Grounds of Appeal under Rule 24. That response contended that that the judge had properly directed himself. It further contended in the light of the ruling in Secretary of State v MG the judge of the First-tier Tribunal was correct to consider the Appellant on a "serious grounds" basis and that the Secretary of State considered that the judge had given careful consideration to the risk of the Appellant re-offending and its impact and he was entitled to reach the conclusions he did and the grounds were consequently nothing more than a disagreement.
8. It is on that basis that the appeal comes before me to consider whether there is a material error of law in the decision of the First-tier Tribunal Judge. The Appellant appears by his instructed Counsel Mr Rai. Mr Rai is extremely familiar with this matter. He appeared before the First-tier Tribunal, he is the author of the Grounds of Appeal to the Upper Tribunal and he has provided me with a skeleton argument. The Secretary of State appears by her Home Office Presenting Officer Mr Walker.
Submissions/Discussions
9. Mr Walker starts by pointing out that it is necessary to start with the Appellant's vagueness as to when he arrived in the UK. He acknowledges that under the Regulations the Appellant had a right to reside within the UK with his spouse and that considering bearing the Appellant's date of marriage and entry to the UK it was the Secretary of State's contention that even at the date of conviction in October 2013 it would only be possible to deport the Appellant on "imperative grounds". Mr Rai contends that the judge has not looked at that.
10. Taking the issues in the Grounds of Appeal in chronological order it is the contention of Mr Walker on behalf of the Secretary of State that this ground is merely a disagreement when read against the sentencing remarks of the judge. In response Mr Rai contends that when addressing Regulation 21(4) of the 2006 Regulations the judge has not had regard to all the relevant factors just the culpability as to whether the Appellant is likely to reoffend. He acknowledges the comments made by the First-tier Tribunal Judge at paragraphs 40 and 52 and points out they only take into account one factor of many and indeed in his direction to himself the judge has suggested that the judge has not properly dealt with the law and that that is material. He further points out that the Appellant has family, has been through rehabilitation and that the judge has had no note to the OASYS Report and that this is highly relevant. The Secretary of State has submitted that there has been no rehabilitation which would affect the judge's analysis. He points out that the judge has only looked at one determinative risk and that the judge has placed decisive weight on the Appellant minimising his culpability in the initial offence and places significant weight on what he considers to be a one-sided view of Vasconcelos (risk - rehabilitation) [2013] UKUT 000378 (IAC) and therefore that the judge has materially erred in law in the analysis required by Regulation 21 in particular (3) and (4).
11. In submission Mr Rai sets out to analyse paragraphs 35 and 40 to 52 of the First-tier Tribunal Judge's determination where he states that the judge has made the following findings:
(a) he has distinguished Vasconcelos from the Appellant's facts on only the one point that Vasconcelos had been in the UK for less then five years;
(b) he finds significant features "cast a shadow" over the Appellant not committing further offences in the future which go to the heart of the serious nature of the offence; and
(c) the Appellant did not plead guilty to the offence;
(d) he contends the First-tier Tribunal Judge did not accept the true criminality of what the Appellant had done; and
(e) then finds that he is not satisfied that if placed in a similar situation the Appellant would clearly and instantly recognise that he should walk away from whatever the opportunity is and not take part of it;
(f) the Appellant still seeks to minimise his past in what is an extremely serious crime;
(g) and then the First-tier Tribunal Judge relied heavily at paragraphs 37 and 38 of Vasconcelos.
12. He consequently contends that the judge has erred:
(a) By Regulation 21(5) the conduct must represent "a genuine, present and sufficient serious threat." He states the analysis and findings of the judge do not suggest such a threat and that the findings of the First-tier Tribunal Judge "cast a shadow" and that reasons given are based on historic events all because the Appellant does not allegedly accept the true criminality and that does not of itself show that the Appellant poses the requisite risk as required by Regulation 21(5). He further contends that the judge was wrong on reliance on Vasconcelos for the proposition that not accepting his criminality represents a genuine and sufficient serious risk and points out that there were aggravating features in Vasconcelos. Further he points out that Vasconcelos can be easily distinguished on its facts and that the judge has failed to give weight to other factors in his analysis such as acceptance that the Appellant had been exercising treaty rights for at least ten years; that he has family life with his daughter with whom he continues to have a subsisting relationship and that he has developed a private life in the UK since 2000 including relationships with his sister and brother. He submits that the judge should have had regard to the Appellant's rehabilitation but he has failed to do so and has therefore materially erred in law.
(b) Secondly Mr Rai contends that the decision does not comply with the principles of proportionality and Article 8 and that the judge has failed to make findings as to whether the Appellant has been resident in the UK for ten years prior to imprisonment and the Appellant is entitled to be considered against the test of imperative grounds. He submits that the Appellant has been exercising treaty rights since 2000, being granted permanent resident in 2005 and that consequently he has been in the UK exercising such right for fourteen years. He contends that the time spent in prison should be included when calculating the relevant period for consideration (Essa [2013] UKUT 00316). He contends that a distinction between the family member of an EEA national and an EEA national is contrary to the Directive 2004/38/EC and that no distinction should be made between an EEA national and the family member of an EEA national for the purpose of expulsion. He consequently contends there is a material error of law.
The Law
13. Areas of legislative interpretation, failure to follow binding authority or to distinguish it with adequate reasons, ignoring material considerations by taking into account immaterial considerations, reaching irrational conclusions on fact or evaluation or to give legally inadequate reasons for the decision and procedural unfairness, constitute errors of law.
14. It is not an arguable error of law for an Immigration Judge to give too little weight or too much weight to a factor, unless irrationality is alleged. Nor is it an error of law for an Immigration Judge to fail to deal with every factual issue of argument. Disagreement with an Immigration Judge's factual conclusion, his appraisal of the evidence or assessment of credibility, or his evaluation of risk does not give rise to an error of law. Unless an Immigration Judge's assessment of proportionality is arguable as being completely wrong, there is no error of law, nor is it an error of law for an Immigration Judge not to have regard to evidence of events arising after his decision or for him to have taken no account of evidence which was not before him. Rationality is a very high threshold and a conclusion is not irrational just because some alternative explanation has been rejected or can be said to be possible. Nor is it necessary to consider every possible alternative inference consistent with truthfulness because an Immigration Judge concludes that the story is untrue. If a point of evidence of significance has been ignored or misunderstood, that is a failure to take into account a material consideration.
Relevant Regulations under the Immigration (EEA) Regulations 2006
15. "21. (1) In this regulation a 'relevant decision' means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who-
(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989(1).
(5) Where a relevant decision is taken on 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-
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(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;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision.
(6) 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."
Findings
16. I start by reminding myself that I have only heard submissions as to whether there is a material error of law in the decision of the First-tier Tribunal Judge. I am not rehearing the matter. The thrust of the Appellant's appeal is that the First-tier Tribunal Judge has failed to place appropriate weight on the evidence when finding the Appellant remained a serious risk of reoffending and has failed to determine whether the Appellant is in fact a genuine threat as is required within paragraph 21(5) of the Regulations. I note that the evidence relied upon by the Appellant before the First-tier Tribunal included the OASYS Report with regard to the Appellant being at a low risk, the decision letter of the Respondent analysing the risks of reoffending, his Islamic studies and functional skills and working part-time, his financial gain and his emotional wellbeing and then acceptance by the Secretary of State that the Appellant takes full responsibility for his crime.
17. However I note that the First-tier Tribunal Judge relies upon the Appellant not accepting his part in generating the offence itself and that nowhere prior to this does the First-tier Tribunal Judge explain what he means by this where the Appellant after completing the victim awareness course claims not to accept his part in generating the offence. Of course the First-tier Tribunal Judge heard the decision and is entitled to make findings of fact but I agree with the detailed submissions made by Mr Rai the judge has given undue weight to the culpability of the offence and the weight given therein in Vasconcelos and has materially heard the matter of law with regard to the genuine risk that the Appellant has of reoffending when giving consideration to that risk.
18. I acknowledge that it is the view of the Secretary of State that the submission made on this point merely goes to disagreement but if due consideration is given to the factors within Vasconcelos and the failure to consider the OASYS Report I consider it justifies a finding that there is a material error of law. Secondly and perhaps on stronger grounds than the first finding it is accepted that the Appellant has a permanent right of residence and Regulation 21(3) makes it clear that a relevant decision may not be taken against a person with such rights except on grounds of public policy or public security. However in relation to an EEA national a relevant decision cannot be made except on imperative grounds if the EEA national has been residing for a continuous period of at least ten years prior to that decision.
19. I accept the submissions made by Mr Rai on this point and that the judge materially erred in making the distinction between an EEA national and a family member of an EEA national particularly for the purpose of deportation and that in itself constitutes a material error of law.
20. Finally the judge has failed to address the Article 8 contentions, particularly the claim that the Appellant has an entrenched life in the UK and has worked for thirteen continuous years and that he has family life and a daughter. His only analysis regarding these issues is to be found at paragraphs 53 to 56 and the judge has failed to give due consideration to the balancing or proportionality aspect of those factors. In such circumstances I agree that there is a material error of law therein.
21. In such circumstances the correct approach is to set aside the decision of the First-tier Tribunal Judge and remit the matter back before the First-tier Tribunal for rehearing.
Supplementary Issue
22. Mr Walker acknowledges that in the event this matter is remitted then it would be appropriate for the Secretary of State to look at the evidence as to whether it is appropriate that it would lead to the removal of the Appellant as a family member of an EEA national and for a new Notice of Refusal reason to be produced.
Decision and Directions
(1) The decision of the First-tier Tribunal discloses material errors of law and is set aside with none of the findings of fact to stand.
(2) That the appeal be remitted to the First-tier Tribunal to be reheard on the first available date 56 days hence at Taylor House with an ELH of three hours. It is recorded that the appeal is to be before any First-tier Tribunal Judge other than Immigration Judge R Callender Smith.
(3) That the Secretary of State give notice to the Appellant's representatives and the Tribunal within 28 days of receipt of the error of law notice as to whether the original Notice of Refusal is to be withdrawn. It is recorded and accepted that if it is to withdrawn then the issue will be reconsidered by the Secretary of State and either a new Notice of Refusal issued or the Notice of Refusal withdrawn in its entirety. It is further noted that in the event that such circumstances apply and a new Notice of Refusal is issued then the correct approach is to rehear the matter afresh as an appeal against that Notice of Refusal. In such circumstances it is still inappropriate for any appeal to be reheard by Immigration Judge Callender Smith.
(4) In the event that the remit to the First-tier Tribunal is to proceed then leave is granted to both parties to file and serve an up-to-date bundle of documents at least seven days prior to the restored hearing.
(5) No interpreter is required.

No anonymity direction is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris

TO THE RESPONDENT
FEE AWARD

No application is made for a fee award and none is made.

Signed Date

Deputy Upper Tribunal Judge D N Harris