Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/10095/2008

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 2 July 2013
On 9 July 2013

…………………………………

Before

THE PRESIDENT, THE RIGHT HON MR JUSTICE BLAKE

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

SANDOR KALMAN NYARI

Respondent

Representation:

For the Appellant: Mr P Deller, Home Office Presenting Officer
For the Respondent: Ms C Warren, Counsel instructed by Paragon Law

DETERMINATION AND REASONS

1. This is an appeal with a substantial history. We will refer to the present respondent as the claimant because he was the appellant in the proceedings below.

2. The appellant is a national of Hungary who has been present in the United Kingdom since October 1986 when he arrived here with an entry clearance as a spouse. He is married to a British citizen and he has three children born to him who we shall refer to by initials, D now aged 26, S now aged 24 and A now aged 15½. There is some indication in the material before us that the appellant was working until about 2001 though details of that are somewhat sparse.

3. The present appeal is an appeal against a decision made in May 2008 that he be deported on the grounds that his presence was a threat to public policy within the meaning of the Immigration (EEA) Regulations 2006, Regulation 21. That decision was re-made on 4 October 2011 pursuant to directions given earlier that year by a panel. The basis for the decision was two convictions of the claimant, first in August 2002 he was convicted of conspiracy to contravene Section 170 of the Customs and Excise Management Act of 1979 in relation to the importation of goods, namely tobacco. He was sentenced to three years’ imprisonment in August 2003 and released some fourteen months later on 6 October 2003. At that stage Hungary had not joined the European Union. It did so on 1 May 2004 and the question of whether the appellant could rely upon rights preceding Hungary’s membership of the European Union remained a difficult question for some time.

4. The appellant was subsequently arrested on 26 January 2006 for another conspiracy to cheat the public revenue. The dates of that conspiracy go back to 1 September 2005. The appellant was the first named on the indictment and was considered to be the organiser of that conspiracy which again related to importation of tobacco without excise duty being paid. He was eventually sentenced for that on 4 September 2007 when he was given, on a plea of guilty, a sentence of four years’ imprisonment, the judge explaining that if he had contested guilt on that occasion he would have adopted a seven year starting point having regard to his role in the enterprise and his previous conviction that was a very serious aggravating factor.

5. It is to be noted however that between 3 April 2006 and 5 April 2007 the appellant left the United Kingdom when he breached his bail conditions and travelled to Hungary with his wife and youngest child A where he remained for a year before returning pursuant to extradition request on 5 April 2007. During that time, as it happens, the EEA Regulations came into force and for the first time those Regulations applied the considerations of the Citizens Directive of 2004 and distinguished between various levels of protection of EU nationals depending upon whether they had achieved permanent residence or residence of ten years that required their deportation to be on imperative grounds of the public interest.

6. The appeal was first heard on 29 September 2008 at the Stafford Combined Court when a panel of the then Asylum and Immigration Tribunal concluded that the appellant was entitled to rely upon imperative grounds and that bad as his conduct had been it did not meet the threshold to justify his deportation on those grounds and accordingly the appeal was allowed applying the EEA Regulations. Reconsideration was ordered and on 15 October 2010 the Court of Appeal, by consent, set aside that decision and remitted it to the First-tier Tribunal as the AIT had now become for a de novo hearing. It is worth recording that one of the reasons why the court took that decision by consent was that it concluded, applying the previous case law of the AIT, that residence that had occurred before the claimant had become an EU national because Hungary had not yet joined the EU could not be taken into account for the purpose of considering the ten year period of residence for which imperative grounds was appropriate. It is sufficient to note that that proposition is now quite clearly no longer a sound one in the light in particular of the decision of the Court of Justice in the case of Ziolkowski [2011] EUECJ Case No.C-424/10 of 21 December 2011.

7. It is further relevant to note in the chronology of events that between the favourable decision of the AIT and the setting aside of that decision by the Court of Appeal the claimant had to return to prison for a third time, on this occasion to serve a three year sentence imposed in August 2010 for failing to pay the sum ordered by way of asset computation in the sum of something approaching £900,000.

8. He then came before the panel of the First-tier Tribunal on 6 October 2011 when a fresh decision had been taken some two days earlier before …management directions issued earlier that year and the panel allowed his appeal on 28 October 2011. The Secretary of State appealed and permission to appeal was granted by Judge Blandy of the First-tier Tribunal on 10 November 2011. Judge Blandy’s grant of appeal makes it clear that what he considered was an arguable error by the panel was a failure to balance the interests of the child A against the public interest in the case. It does appear that there were two versions of the grounds of appeal that had been submitted to this Tribunal by the Secretary of State. That is unfortunate. Only one version seems to have reached the claimant but having considered the fuller version when a different point is taken as to whether the panel has considered the case in accordance with the Regulations, we concluded that there was nothing in that ground that would have justified permission to appeal in any event so the issues before us are whether the panel has made an error of law in consideration of the factors which caused it to allow this appeal and if so whether we should re-make the decision. We would only do so if we concluded that any error was material and there was a realistic prospect of a different outcome emerging from a third de novo hearing in the light of the up-to-date facts of the case.

9. Essentially the panel had before it a volume of material from the wife, her brother and the children, in particular a witness statement from the child A who was 14 years 11 months at the date of the hearing. He explains how much he missed contact with his father, he was at school and doing well at school, he had clearly had had difficulties with the number of times that his father had been in prison in recent years and was hoping to enjoy a period of stable family life. The panel said in terms that they accepted the witnesses before them as credible and did not have any reason to doubt the evidence of the wife and children and the brother-in-law. We rather assume that they may not have intended to encapsulate the appellant within that generous finding because his witness statements ranged over a range of topics, some of which may well have been capable of dispute. Nevertheless the panel recognised that this was a case to which the Regulations applied, spelt out Regulation 21.5 and its five different components and in our judgment proceeded to assess the evidence in the case in accordance with that Regulation.

10. At paragraph 17 of its decision the panel noted that the last OASys Report suggested that the appellant was at low risk of offending but the Offender Manager Report clearly noted and attached weight to the fact that he was an adult who had committed offences for financial gain on two occasions and many of the factors which might have operated to deter him from offending had operated previously. The panel concluded that the appellant’s presence was a risk to the wider community at paragraph 18 and noticing the sentencing remarks of the judge in that respect. Thereafter at paragraphs 20 through to the end of its decision they are examining the factors relevant to proportionality, including the length of residence, the family circumstances and the impact upon the family of the appellant’s removal. Not specifically spelt out in Regulation 21 but an important part of both public law, human rights law and through those two tracks community law but equally independent upon community law is the principle of the best interests of the child spelt out in Article 3 of the United Nations Convention on the Right of the Child but more particularly examined in the well-known case of ZH (Tanzania) [2011] UKSC 4. They noted that as regards the wife’s position alone she had been willing to relocate to her husband in Hungary when he had absconded bail and was unlawfully at large and although she said that she would now be unwilling to relocate they noted at [37] that that did not necessarily mean it would be unreasonable to expect her to do so. They did however realise that the wife was providing a home to the second child S, aged 24, who now had a child of her own and who was having family difficulties.

11. However, it is clear from the structure of the decision that the factor that they gave weight to was the best interests of the child A, nearly 14 at the time of the decision before them, who was doing well at school, was British, was integrated into British society, who had admittedly spent a year of his life out of the United Kingdom in Hungary but did not speak Hungarian or otherwise know the language and whose best interests, they assessed, would be served by a continuity of residence in the United Kingdom. They said at the start of paragraph 38 the overriding factor however as we have already indicated is in our estimation the best interests of A. That is the factor to which they attach the greatest weight.

12. Before us Mr Deller has confined his attack to that paragraph, we think sensibly, and points out that it could mean that the panel had given decisive weight as a matter of law to those interests which would be an error of law since the best interests of a child are a primary but not the paramount consideration and they can be outweighed by other factors including the serious nature of the errant father’s conduct. However, the panel had properly encapsulated the learning in ZH (Tanzania) and Omotunde. Omotunde was a criminal deport case which might therefore have grappled with these problems in the more relevant context of criminal action by the father and did not make the error in the earlier paragraphs of assigning paramount importance to the interests of the child. In those circumstances we think although the reasoning is a little compressed in the critical paragraph [38] and might have been with advantage unpacked little more in explaining why the father’s removal was considered to be so detrimental to the child’s interests that it played the critical role in the balance that it did, we think beneficially construed that is what the panel were in fact saying in that decision. If so, they had not misdirected themselves in law in reaching that decision and this Tribunal should not interfere with the result at which they had arrived whether or not that is the decision which we would have reached if we had been deciding this case for ourselves as a first instance panel.

13. We understand the Secretary of State’s concerns in an appeal of this sort as we agree with the panel and the Secretary of State that the father’s conduct was serious, persistent, for financial gain as an adult and organised others in doing. Those are very weighty matters in the public interest. As against that he has been resident for a great many years, something in the order of 27 years, albeit with a year out, and his close family are all based here. In the circumstances we do not have to speculate what the assessment under EU law would have been if a fresh decision were to be made in his case. We are conscious that nearly two years have passed since the panel last looked at it. EU law would require the Secretary of State to make a further evaluation of his case in the next month or so to comply with the two year period of review and, in the light of developing jurisprudence, it might well have been considered that now imperative grounds did apply to him which is of course what the panel in 2008 decided. That however is not matters that weigh with us in our decision. We conclude overall that any defect in the reasoning in [38] that there may exist was not substantial or material and the panel were entitled to reach overall the conclusions to which it did.

14. For those reasons we dismiss the Secretary of State’s appeal and the decision of the panel will remain.

Signed

Date 2013

Chamber President of the Upper Tribunal