Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA510222014

THE IMMIGRATION ACTS

Heard at Belfast
Decision & Reasons Promulgated
On 3rd May 2016
On 20th June 2016

Before

UPPER TRIBUNAL JUDGE KOPIECZEK

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

MR HELIO FILIPE LIMA GONCALVES
Respondent

Representation:

For the Appellant: Mr P Duffy, Home Office Presenting Officer
For the Respondent: Mr S McTaggart, Counsel

DECISION AND REASONS

1. The appellant in these proceedings is the Secretary of State. However, I continue to refer to the parties as they were before the First-tier Tribunal.
2. The appellant is a citizen of Portugal, born on 6 June 1979. He claims to have entered the UK on 26 August 2000. He has been convicted of a number of criminal offences. His latest convictions were on 11 September 2014 for offences of supplying class A drugs and being concerned in the supply of class A drugs. For those offences he received a year's imprisonment, concurrent, and a period of licence of one year, again in respect of all offences.
3. On 19 December 2014 the respondent made a decision to deport the appellant pursuant to the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations").
4. The appellant appealed against that decision and his appeal came before First-tier Tribunal Judge S. Gillespie on 13 August 2015. Judge Gillespie ("the FtJ") allowed the appeal under the EEA Regulations (although dismissed the appeal under Article 8 of the ECHR).
The Grounds of Appeal and Submissions
5. The respondent's grounds may be summarised as follows. It is argued that the FtJ mischaracterised the Presenting Officer's submissions in terms of the level of protection from deportation under the EEA Regulations that the appellant was entitled to. It is said that the FtJ was invited to conclude that the appellant was only entitled to the lowest level of protection, contrary to what the FtJ had recorded. This, it is asserted, had led the judge into error in his findings.
6. In addition, it is said that the FtJ was wrong to accede to a submission on behalf of the appellant to the effect that under the EEA Regulations he only needed to show ten years' residence, without needing to prove exercise of Treaty rights, in order to achieve the highest level of protection of 'imperative grounds of public security'. Reference is made to the decisions in Onuekwere [2014] EUECJ C-378/12, and MG [2014] EUECJ C-400/12. The ten year period of residence must, in principle, be continuous and calculated backwards from the relevant decision of the respondent. On that calculation the appellant had not accrued ten years' residence.
7. Lastly, it is argued that in the light of the appellant's offending, and the view of the Northern Ireland Probation Service that he presented a medium risk of further offending, the FtJ had erred in failing to consider whether his offences, his imprisonment and his integration had broken his links to the UK.
8. In submissions Mr Duffy relied on the grounds of appeal. He relied on the decision in Onuekwere in support of the proposition that in order to acquire relevant ten years' residence and the highest level of protection, the appellant would need to have acquired permanent residence first. In any event, the key point is that the ten years' residence is to be counted back from the date of the decision.
9. Mr McTaggart submitted that even if the FtJ had "mischaracterised" the Presenting Officer's submissions as suggested in the grounds, that is irrelevant if the appellant is indeed entitled to the highest level of protection. Neither Onuekwere nor MG support the contention advanced on behalf of the respondent to the effect that the appellant needed to establish permanent residence first before he could acquire the relevant ten years' residence. Reg 21(4) does not say that the ten years' residence needed to be in accordance with the EEA Regulations. That is in contrast to a person with a permanent right of residence acquired after five years.
10. It is apparent from [21] and [22] of the FtJ's decision that he was aware of the need to count backwards from the date of the decision. Realistically, in all cases of deportation under the EEA Regulations, it is always going to follow a period of imprisonment so the ten years' protection is "capable" of applying. With reference to [37] and [38] of MG, it is clear that the period of imprisonment is "in principle" "capable" of interrupting the continuity of the period of residence and of affecting the decision regarding enhanced protection. The ten years' residence needed to be taken into account overall.
11. So far as risk of re-offending is concerned and whether the appellant represented a genuine, present and sufficiently serious threat, the FtJ had set out at [9] the appellant's convictions, his work history and the licence period.
12. In reply, Mr Duffy relied on earlier submissions, adding that the FtJ did not deal with what integrating links the appellant has with the UK. Ten years' residence "alone" is not sufficient, and there was no analysis of this by the FtJ.
13. Integration could be shown by the exercise of Treaty rights. Here there has been a lack of integration evident from the appellant's offending. It was not enough for the FtJ at [22] to conclude that the appellant had shown residence for ten years only, when "in principle" imprisonment breaks the continuity of residence.
My conclusions
14. One of the respondent's grounds is to the effect that the FtJ "mischaracterised" or misunderstood the respondent's submissions before him in terms of the level of protection against deportation under the EEA Regulations that the appellant was entitled to. The FtJ recorded at [15] that the submission was that the appellant's removal was justified on serious grounds of public policy.
15. Aside from the extract from the Presenting Officer's record of the notes of the hearing, as reproduced in the respondent's grounds, and there being no contrary information provided on behalf of the appellant, it seems to me that what the FtJ recorded at [15] as being the respondent's contention as to the level of protection available is otherwise inconsistent with the factual propositions actually advanced at [15]. It is recorded that the Presenting Officer submitted that the appellant had not proved continuous residence, and that any such residence had to be in compliance with the EEA Regulations. It was also advanced that the appellant had not applied for a permanent residence card and that there were gaps in his employment record. Reference was also made to his status as a worker only being retained where involuntary employment did not exceed six months. It seems to me that those assertions clearly indicate that the respondent's position at the hearing was that the appellant was only entitled to the lowest level of protection, as recorded in the extract of the minute of the hearing reproduced in the grounds. Such a contention would also reflect the respondent's position in the decision letter.
16. In the light of the decisions in Onuekwere and MG, it is clear that a period of imprisonment is "in principle" capable both of interrupting the continuity of the period of residence and of affecting the consideration of the grant of the enhanced protection ("imperative grounds") where a person has resided in the EEA state for the ten years prior to imprisonment. Whether integrating links have been broken is nevertheless still a fact to be determined.
17. Although it is submitted on behalf of the appellant before me that the FtJ recognised that a period of residence should be counted backwards from the date of the decision, that is not in my judgement evident from his decision at [21] and [22].
18. The FtJ was not referred to the decisions in MG or Onuekwere. He did not therefore appreciate that a period of imprisonment is in principle capable of interrupting the continuity of the period of residence, and he did not assess the appellant's "integrating links" with that in mind.
19. The FtJ's decision is based on the conclusion that the appellant had resided in the UK for a period of ten years prior to the date of the decision, without more.
20. I accept Mr McTaggart's submission that the ten years' period does not have to be residence exercising Treaty rights, unlike the situation where a person claims a permanent right of residence. The CJEU if not expressly, then by implication, indicated that such is the case. Mr McTaggart's submission is also consistent with the Citizens' Directive (2004/38/EC).
21. I do not agree with the submission made on behalf of the respondent before me to the effect that in order to acquire the highest level of protection (imperative grounds) one needs first to have acquired a permanent right of residence. No authority is cited for that proposition and it is an argument which it seems to me is inconsistent with the authorities.
22. Nevertheless, I am satisfied that the FtJ erred in law in his assessment of the level of the protection against deportation afforded to the appellant, as being imperative grounds. That assessment fails to take into account the question of the breaking of the continuity of residence by the appellant's imprisonment and the period of calculation being to count backwards from the date of the deportation decision. Whether or not the FtJ "mischaracterised" the submissions on behalf of the respondent before him is not in the circumstances the relevant issue.
23. Furthermore, I am also satisfied that the FtJ erred in law in his assessment of the question of whether the appellant represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (reg 21(5)(c)). The FtJ dealt with this matter rather cursorily at [26]. He stated that given that the appellant was assessed by the Probation Board of Northern Ireland ("PBNI") as presenting a medium likelihood of further offending and was not assessed as meeting the criteria for significant risk of serious harm, his exclusion was not justified on imperative grounds of public security.
24. In my judgement this is an inadequate assessment of the question of 'genuine, present and sufficiently serious threat affecting one of the fundamental interests of society'. It is an assessment that does not engage with the respondent's case on the issue as set out in the decision letter in several paragraphs. The decision letter refers in detail to the harm done by the trade in illicit drugs which the respondent said "has a severe and negative impact on society". Indeed, that very point was made in Tsakouridis [2010] Case C-145/09 which the FtJ referred to at [20].
25. Although Mr McTaggart sought to defend the FtJ's decision on this issue in terms of the FtJ's reference at [9] to the appellant's criminal offending, his reference to the appellant's work history and his release on licence, I do not accept that this remotely represents an informed assessment by the FtJ of this important issue. The FtJ's recitation of the appellant's offending and employment history does not engage with that issue. Regardless of the PBNI's assessment that the appellant "is not assessed as meeting the criteria for Significant Risk of Serious Harm" the FtJ's assessment is flawed. The PBNI's conclusion in this respect is plainly not an assessment made in the context of deportation and the factors that need to be taken into account in terms of the undoubted harm that supplying drugs does to society.
26. In summary therefore, I am satisfied that the FtJ erred in law such as to require his decision to be set aside. As to the re-making of the decision, I have taken into account the submissions made on behalf of the parties in terms of whether the decision should be re-made in the Upper Tribunal or remitted to the First-tier Tribunal. Having regard to the Senior President's Practice Statement at paragraph 7.2 I consider that the appropriate course is for the matter to be remitted to the First-tier Tribunal for rehearing, based on a correct appreciation of the legal framework and with a detailed assessment of the extent to which the appellant can be said to have integrated into UK society and whether those integrating links can be said to have been broken.
27. The FtJ made certain findings of fact but those findings of fact are limited. Accordingly, except insofar as agreed between the parties, no findings of fact are to be preserved.
Decision
The decision of the First-tier Tribunal involved the making of an error on a point of law. Its decision is set aside and the appeal is remitted to the First-tier Tribunal for a hearing de novo before a judge other than First-tier Tribunal Judge S. Gillespie.

Upper Tribunal Judge Kopieczek 20/06/16