Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/07943/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 11 April 2017
On 26 April 2017

Before

UPPER TRIBUNAL JUDGE WARR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

IULIAN GABRIEL DRAGAN
(ANONYMITY DIRECTION not made)

Respondent

Representation:

For the Appellant: Mr I Jarvis
For the Respondent: The sponsor (Florenta Mitu)

DECISION AND REASONS

1. This is the appeal of the Secretary of State but I will refer to the original appellant, a citizen of Romania born on 6 October 1976 as the appellant herein.
2. The Secretary of State appeals the determination of a First-tier Judge allowing the appellant’s appeal following a hearing on 5 October 2016.

3. The appellant had sought admission to the UK under EC law in accordance with Regulation 11 of the EEA Regulations 2006. The application was refused because the Secretary of State was satisfied

“That your exclusion is justified on serious grounds of public policy, because in 2008 you were sentenced to three years’ imprisonment for a serious offence of armed robbery in the Netherlands. You were refused admission to the United Kingdom on 3 September 2012 on serious grounds of public policy, and you have admitted to me that you entered the United Kingdom in October 2012 using the common travel area via Belfast, knowing you had been refused previously. You have no substantial ties to the United Kingdom. I also note that your appeal against the original refusal of admission in 2012 was dismissed in 2013.”

4. The appellant was represented before the First-tier Judge by his partner, the sponsor who appeared before me. She told the First-tier Judge that the relationship between her and the appellant had begun in November 2008. They had first lived together in the UK between August 2010 until April 2011 when the police had come and arrested the appellant. He had been sent to Holland and he had completed his sentence and was released on 10 August 2012. He had gone to Romania for three weeks and had then returned to the UK when he was refused entry. He was in Bucharest looking after his child. He had one child from his first marriage who was 19 and a second child from his second marriage who was 11. His child had started secondary school in Bucharest in September. She had accepted that the appellant had re-entered the UK through Belfast in 2012 after he had been refused entry and that he had attempted to enter again after being refused following the unsuccessful appeal in March 2013. The appellant had never been issued with a residence permit and he was helping in his parent’s shop and looking for work. He wanted to come to the UK to join the sponsor who was working part-time and studying part-time.

5. The Secretary of State was represented by Mr Khalfey and the judge recorded the submissions made before him as follows:

“4. In his submissions Mr Khlafey [sic] said that the decision of 4th October 2013 was the starting point for this decision. There has been a finding that he was only entering the UK as a visitor and could not meet the requirements of EU law. The grounds of appeal now were similar to those considered in that decision. The presenting officer reiterated the basis of the decision that his presence in the UK was not conducive to the public good but acknowledged that the previous decision in 2013 had reached a different conclusion on that issue and that he had no basis on which to invite the Tribunal to go behind the public interest findings. It was not clear whether the immigration officer had been aware of the detail of the previous appeal or only its outcome. The Tribunal would have to consider the reason why he now sought entry.

5. In response Ms Mitu said that they did not take legal advice after the appeal was dismissed in 2013. She said: ‘we understand that he did a bad crime in 2004 but everyone needs a second chance to be a good person. He did a crime in Holland and I think he wants a second chance. I could not finish my course. I returned this year to finish it. I am working nights and studying. His plan is to work together with me, to put his son into school and to have our life together here. He will help me to finish the college and before when he was here he worked with me in warehouses.’”

The First-tier Judge considered that the previous decision that had been reached was the starting point and set out the following extract from the decision of First-tier Judge Simpson following a hearing on 25 July 2013:

“Article 3(2) of the Council Directive (EEC) 64/221 provides that previous criminal convictions shall not in themselves constitute grounds for the taking of measures on the grounds of public policy or public security. Consequently the fact that this appellant has a conviction for robbery is not by itself sufficient to show that he is a genuine present and sufficiently serious threat to the United Kingdom.

In Bonsignore [1975] ECR 297 the ECJ held that public policy measures should only be applied if there is a likelihood that the offender will commit further offences or in some other way infringe public security or policy...Nazli v Stadt Nürnberg [2000] ECR 1-957 [held that] the personal conduct of the person involved and in particular the indications of future risk of threats to public policy must be assessed. Criminal convictions, even for the most heinous crimes will never be enough by themselves.

The appellant has a conviction for robbery and has served a two –year period of imprisonment. However that is the only conviction referred to and there is no indication in the papers before me that he has ever committed any other offence. The reference to the appellant’s questioning on an earlier visit to the UK on suspicion of theft is a red herring given that he was released having found to be uninvolved. In particular there does not seem to have been any enquiry as to whether the appellant currently constituted a present or future threat. On that basis it seems to me that if the appellant had been seeking admission to the UK with the intention of exercising his treaty rights his exclusion for the reasons given by the respondent could not have been justified.”

The First-tier Judge emphasised the conclusions of Judge Simpson which were -

“In summary if the appellant had been seeking to enter the UK to exercise treaty rights as an EU national his exclusion on the basis of his single criminal conviction for robbery could not have been justified as there was nothing to suggest from his personal conduct that he would commit further offences or in some other way infringe public security or policy.”

6. The determination of the First-tier Judge concludes as follows:

“8. The appeal was nevertheless dismissed because the judge considered that Mr Dragan was seeking to enter as a visitor and ‘cannot rely on EC Directives relating to freedom of movement of workers to challenge his exclusion.’ The judge found he did not have a right of appeal against the decision. Ms Mitu confirmed in her evidence that they had never sought legal advice after receiving the decision. Although the entry clearance officer’s refusal refers to the 2013 appeal outcome, it is not clear from it whether the reasons for the decision were known or only the fact that the appeal did not succeed.

9. These findings are significant because they address the principal issue in this appeal. Quite properly the presenting officer did not seek to go behind those findings because there is nothing in the conduct of Mr Dragan since they were made in October 2013 which might justify revisiting the conclusion set out at paragraph 7 above. Since then Mr Dragan attempted to re-enter the UK and was refused entry and appealed against that decision.

10. For the reasons already decided in the decision dated 4th October 2013, his exclusion from the UK cannot be justified on serious grounds of public policy. It is apparent from the evidence of employment at pages 8 – 12 of the bundle that Mr Dragan has worked as a warehouse operative in the UK in the past. In those circumstances I accept the oral evidence of Ms Mitu at the hearing that Mr Dragan intends to work in the future. He therefore seeks entry in exercise of his treaty rights and the decision to refuse him is not in accordance with the Immigration (EEA) Regulations 2006.”

7. The judge accordingly allowed the appeal.

8. The Secretary of State applied for permission to appeal and submitted that the judge had erred by relying entirely on the earlier decision of the Tribunal. Neither decision dealt with the pertinent issue. The earlier decision had focussed “on the arguably erroneous assertion” that the appellant was entering as a visitor and thus could not seek admission on that basis. Similarly the judge in the instant appeal had attempted to distinguish the appeal from the decision of Judge Simpson by saying that the appellant was entering to gain employment and therefore in exercise of his treaty rights. EU nationals sought admission under Regulation 11 with an initial right to reside pursuant to Regulation 13 subsequent to which, in order to enjoy an extended right of residence, they must comply with Regulation 6. Both decisions failed to address the relevant points of the respondent’s decision. The first decision had made no enquiry about whether the appellant constituted a present or future threat and had not been in a position to consider that after the decision the appellant had admitted to abusing the common travel area. The appellant was seemingly evading a criminal sentence in the Netherlands. These factors demonstrated the appellant showed little or no inclination to adhere to the rule of law in each member state.

9. The First-tier Judge had considered that the appellant’s exclusion could not be justified on serious grounds of public policy but there was no evidence to show that the appellant had been exercising treaty rights for five years. From the facts as set out in the determination at paragraph 2 he had UK residence for less than a year.

10. Permission to appeal was granted on 23 February 2017. The designated judge noted that in order to support the view that the higher level of protection applied the judge had referred to the evidence of the appellant’s employment and stated

“This evidence consisted of four pay slips and an offer letter dated 2014. There is only one document, a pay slip dated 15 October 2010, which is earlier than 2013. It is difficult to see from that one document the judge was able to draw a conclusion that the appellant had been continuously employed exercising treaty rights for a period of at least five years. Apart from anything else, the appellant had been in prison in the Netherlands for two years since the date of that pay slip. The confusion may have arisen because of the use of the word “serious” in the respondent’s decision under appeal but that cannot amount to a concession that the serious grounds of public policy tests applied.

The judge also relied on the 2013 appeal when it was said that the appellant’s exclusion on the basis of a single criminal conviction for robbery could not be justified because the appellant was not a ‘genuine present and sufficiently serious threat to the United Kingdom.’ That was probably the wrong test (see Regulation 21(5)(c) and the reliance upon it by the judge in the decision under appeal was arguably wrong in law. All grounds may be argued.”

11. Mr Jarvis relied on the grounds and referred to the extract from the earlier decision. He submitted that the appellant had been sentenced to a three year period of imprisonment rather than two years although he accepted that this might refer to the period served rather than the total period of imprisonment. However the main point was that in 2013 Judge Simpson had concluded he had no jurisdiction to hear the appeal and so his comments were made obiter. Neither side had appealed the decision and of course the Presenting Officer would have had no interest in pursuing the appeal since it had been dismissed for want of jurisdiction. The judge had erred in relying on obiter comments and had failed to appreciate that the evidence before him differed from that previously considered by Judge Simpson. The case was not simply based on criminal convictions. The appellant’s conduct was a relevant matter. He had attempted to re-enter the United Kingdom through the common travel area shortly after the refusal of admission. This was a point mentioned in the decision refusing admission. The appellant had not acquired a permanent right of residence and accordingly the judge had erred in dealing with the case on the basis of serious grounds.

12. The sponsor referred to the pay slips and said that the appellant had done various jobs. She was the only person earning money in 2013. The judge had been correct to allow the appeal. She had looked after the appellant and his son. His offence was long ago and was a big mistake. He was a changed person. He deserved a second chance. The earlier hearing in 2013 had been on the papers and she did not know much about the law. It was true that the appellant had entered the UK through Belfast. They had been separated for seventeen months and wanted to be together.

13. In reply it was accepted that the decision the subject of challenge had erred in referring to the “serious grounds” test and there was a difficulty because of the apparent concession referred to in paragraph 4 of the judge’s decision. However those findings had been made obiter and were in no way binding and had been overtaken by subsequent events including the appellant’s re-entry through Belfast.

14. At the conclusion of the submissions I reserved my decision. I remind myself I can only interfere with the decision if it was materially flawed in law.

15. There are numerous problems with the way in which this case has been dealt with. Firstly the judge was not assisted by the decision in this case which wrongly referred to the appellant’s exclusion being justified “on serious grounds of public policy”. There was no evidence that the appellant had acquired a permanent right of residence. The First-tier Judge had erred in considering the case on this basis. As Mr Jarvis submitted there were further problems in that the judge had placed reliance on the previous decision and had not appreciated that matters had moved on. The status of that previous decision was doubtful and the Secretary of State had had no interest in challenging the findings made in it the appeal being dismissed.

16. This does appear to be a case where the appropriate disposal is by way of application of the decision chaired by the President dealing with error of law grounds-Greenwood (No.2) (para 398 considered) [2015] UKUT 00629 (IAC). As is stated in paragraph (iv) of the italic words while remittal is no longer available as one of the disposal powers a fourth possible outcome is noted in paragraph 21 where the Secretary of State’s decision was unlawful. The Tribunal decided in paragraph 23 that the fourth option continued to apply despite the legislative changes. In this case the error affected the decision of the First-tier Judge as was noted when permission to appeal was granted. The First-tier Judge also erred in law in his approach to the earlier decision and the failure to take into account subsequent developments.

17. I am satisfied the decision of the First-tier Judge was materially flawed in law. In the particular circumstances of this case the appropriate outcome, given that the error of law originated with the Secretary of State, is for the Secretary of State to revisit matters on a proper basis. Accordingly the appeal is allowed. The appellant awaits a lawful determination of the application.

18. The First-tier Judge made no anonymity direction and I make none.

TO THE RESPONDENT
FEE AWARD

As I have allowed the appeal to the extent indicated above and because a fee has been paid or is payable, I have considered making a fee award and have decided to make no fee award. The First-tier Judge made a fee award because “The appeal has been allowed on the basis of circumstances which were determined by the Tribunal in 2013 and which, if they had been identified at the time of Mr Dragan’s refusal of entry would not have resulted in that decision.” The basis of making this fee award was entirely mistaken for the reasons given above. It is set aside. It is not appropriate to make a fee award in all the circumstances given that the appeal has not led to a final disposition of the matter which remains before the Secretary of State.

Signed Date 25 April 2017

G. Warr, Judge of the Upper Tribunal