UI-2023-004580

• Status of case: Unreported
• Hearing date: 24 Jan 2025
• Promulgation date: 28 Feb 2025
• Publication date: 17 Mar 2025
• Last updated on: 17 Mar 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-004580

First-tier Tribunal No: EA/51464/2022
EA/01648/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 28 February 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON
UPPER TRIBUNAL JUDGE MANDALIA

Between

ASS
(ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: In person
For the Respondent: Ms S Rushforth, Senior Home Office Presenting Officer

Heard at Cardiff IAC on 24th January 2025

DECISION

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the Appellant, likely to lead members of the public to identify the Appellant. Failure to comply with this order could amount to a contempt of court.

1. The appellant, a Romanian national born on 15th January 1988, appeals under the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations 2016) (as saved) against the respondent’s decision dated 5 October 2022 to deport him.

2. In the Secretary of State’s decision and reasons for deportation, on grounds of public policy in accordance with regulation 23(6)(b) and regulation 27 of the EEA Regulations 2016, and refusal of the appellant’s human rights claim the following points were raised:

(i) On the appellant’s own case he has lived in the UK for 4 years since April 2017 prior to the index offence and he has not therefore acquired a permanent right to reside in the UK. The respondent therefore considered whether the appellant’s deportation is justified on grounds of public policy or public security
(ii) On 17th April 2020 the appellant was convicted at the County of Wiltshire Magistrates Court of breach of non-molestation order and sentenced to pay £200.00 fine, £85.00 costs, and £32.00 victim surcharge.
(iii) The appellant was convicted on 27th April 2021 at Swindon Crown Court of assault occasioning actual bodily harm and engaging in controlling/coercive behaviour in an intimate/family relationship and he was sentenced to 2 years in prison.
(iv) The index offence disclosed a pattern of behaviour against his now ex-partner {R} over a period of time, and the index offence was committed in the presence of his daughter [M](5 weeks old at the time)
(v) The appellant had demonstrated that he was capable of causing psychological and physical harm to others whilst under the influence of alcohol (he had been drinking alcohol in a neighbour’s flat)
(vi) The appellant’s other conviction aside from the index offence was imposed following multiple breaches of lawful restrictions
(vii) The appellant was assessed to be a subject to the medium level of the Multi-Agency Public Protection Arrangements (MAPPA level 2), the purpose of which is to protect the public. The fact that it was appropriate for the appellant to be monitored under risk management strategies was an indication that he was considered to pose a continuing risk to the public with a requirement to report regularly to the police and abide by certain other restrictions
(viii) The nature of his offence was not the only contributing factor to his rating. The rating was also influenced by factors such as his underlying beliefs. His alcohol consumption was a common denominator.
(ix) The OASys assessment found the appellant posed a high risk of harm to the public, potential future partners and in particular towards his ex-partner. Further he was assessed to pose a medium risk of harm to his daughter. The assaults against the ex-partner were committed in the presence of the child.
(x) The appellant is subject to a restraining order until 14th October 2026.
(xi) The OASys report identified ‘sustained, regular abusive behaviour’.

3. The appellant’s appeal was heard in the First-tier Tribunal (FtT) in 2023 and allowed on 28th September 2023. The Secretary of State appealed that FtT decision and an error of law was found in the FtT determination by Upper Tribunal Judge Rimington and that determination set aside. The Upper Tribunal concluded the FtT judge failed to acknowledge that the OASys report was the last, relatively recent, but comprehensive assessment of the risk of re-offending, the possible impact of that offending, and that the behaviour was of a sustained pattern. In summary, the FtT judge had given inadequate reasons for rejecting the OASys report.

4. The resumed hearing in November 2024 was adjourned owing to the absence of the appellant’s partner and witness Ms L. She had submitted a written letter but had not been able to secure time from work to attend the hearing. In the interests of fairness and justice UTJ Rimington adjourned the hearing which was reset for 24th January 2025.

The rehearing before us

5. We have been provided with a copy of the consolidated bundle that was prepared for the purposes of the ‘error of law’ hearing. That bundle includes the evidence that was replied upon by the parties at the hearing of the appeal before the FtT. In preparation for the hearing of the appeal before us, the appellant has provided us with a number of additional documents that include:

i) A ‘response and update’ provided by the appellant that sets out the evidence he relies upon.
ii) A letter from Ms L, the appellant’s partner
iii) Payslips concerning the appellant’s employment
iv) P60 for the year ending 5 April 2024
v) Copy email from the Interim Associate Dean concerning the appellant’s attendance on a course – Module 1
vi) Email confirmation that the appellant has registered on a ‘Business and Tourism Management Degree level Course with a Foundation year, as a student of Canterbury Christ Church University through a Partner Organisation.
vii) Proof of the appellant’s current address in the form of a letter from the Child Maintenance Service
viii) Email from Sara Mason, Probation Officer, dated 1 August 2024.

6. The appellant and his partner both attended the resumed hearing and gave oral evidence. Both confirmed that they could understand the proceedings and did not require an interpreter.

7. The appellant confirmed under cross examination that he was released from prison in April 2022, remained on a restraining order (made in April 2021 and expiring on 14th October 2026) and had lived with his new partner Ms L since late 2023. At first, he denied that he had been served with a stage 2 deportation order but then accepted that this document had been included in the appeal documents and indeed was the subject of the appeal. He confirmed that he had never taken the prospect of his deportation into consideration and told us that he had full confidence that the court would exercise clemency.

8. The appellant described that following an application to the Family Court, he is permitted indirect contact with his daughter (born in August 2019) twice yearly, on her birthday and at Christmas and the Order provides that the indirect contact is facilitated through a contact centre. He did not know the address at which his ex-partner and daughter live. He observed that the contact was not face to face and despite the fact that he paid child support the contact was not working as it should. He told us that he had been permitted to send letters/gifts twice yearly but he had not done so because he had not received a school report nor medical reports, nor pictures of his daughter. His intention was to return to the Family Court and he thought the possibility of contact would be improved once he married his partner and his immigration status was resolved. He had lost confidence in indirect contact. The appellant told us that the mother had been stressed by going to the Family Court and he had been told by a social worker that if the mother had to attend the contact centre this would stress the mother and thus the child.

9. The appellant gave evidence that he did not believe in indirect contact and was told that having a child in the house (Ms L’s child) would help his situation with contact when he next goes back to the Family Court. He acknowledged that as matters stand, there was no extant application to the Family Court for any variation of the order(s) previously made. He had no ongoing problem with the law and has a good employment history and was studying. He did not agree that a child should be raised through letters and bank accounts. To date he had not resumed an application to the Family Court and notwithstanding the order made by the Family Court, he had not taken up the opportunity of indirect contact with his daughter. The appellant said that the order made by the Family Court was not in mandatory terms requiring that he send letters and gifts to his daughter but permitted him to do so, if he wanted to. He explained under cross examination that indirect contact was not a phenomenon of Romanian culture and secondly his ex-partner was not co-operating and he was not getting what he wanted.

10. The appellant also gave evidence that the last time he drank alcohol was a week ago and he was trying to limit his alcohol intake to weekly. He was not a big fan of drinking as it was easy to overdo it. He was of the opinion that the information given to the assessor for the purposes of the OASys report was blighted by a misunderstanding of what he was trying to say. He said he has a tendency to use mandatory language and that was interpreted to give the impression of a sense of entitlement, when he was trying to say something different. He has a mother and sister at home in Romania and he respects women. He constantly buys his partner flowers. At present he is subject to immigration bail conditions and is required to wear a GPS tag.

11. The appellant gave oral evidence that he had worked in Romania for 7 years as a specialist in process management for a private pension fund and that he has worked in the UK. He could find work anywhere, including America if needed, but he is in the UK and wants to work here. At present he is a caretaker entrusted with supervising flats.

12. Ms L gave oral evidence and she confirmed that she and the appellant had initially worked together, struck up a friendship which progressed to a more intimate relationship in May/June 2023. They did discuss the possibility of his deportation when they commenced the relationship. She told us she could not leave England because of her sister who has disabilities. She said that if the appellant had to go, after what he had done that was penance, and there was nothing she could do about it. She agreed she could visit him. She stated that he was abstaining from alcohol consumption. When it was put to her that the appellant had said in his evidence that he had drunk alcohol only the week before, her response was that he may have drunk alcohol when out with his friends, but that was not her problem and it was not illegal. However, he was not allowed to drink in her house. She knew he did with friends and that was not her problem and not illegal. She denied there was or had been any violence towards her. They may have had harsh words and disagreements but nothing where she was worried for her safety. When asked about misogynistic attitudes, she replied that she did not know what they would be. She did not recognise the person being described ‘on paper’. She said she knew Romanian men sometimes have cultural views about the role of women and that some of the appellant’s friends tell him he is ‘being a pussy’ for doing women’s work.

Submissions

13. Ms Rushforth submitted that the appellant enjoyed the lowest level of protection under the EEA Regulations 2016. He had committed a very serious offence, breached a non-molestation injunction and was the subject of a restraining order. The OASys report identified that alcohol was a risk factor, and he had entrenched attitudes towards women owing to his background. He had been physically and psychologically abusive towards his ex-partner. Ms Rushforth identified sections of the OASys report which she considered indicative of ongoing risk. The document from the Probation Service in August 2024 had downgraded the risk to a ’medium risk’ but the appellant remained a high risk to future partners. He had not complied with the order for indirect contact made by the Family Court merely because this type of contact is not common in Romania.

14. Ms Rushforth submitted it had been shown that the appellant remained a present, genuine and sufficiently serious threat. The OASys report at page 176 of the bundle demonstrated that the appellant poses a medium risk of reoffending. That his current partner had stated he was not abusive towards her does not negate a lifetime of cultural influence and a continuing threat. The appellant maintained that he no longer entertained these views and that his English had been misunderstood but the evidence in relation to his contact with his daughter demonstrated he had not changed. The decision to deport him was proportionate. He has no contact with his daughter in the UK and has not taken up opportunities offered to pursue indirect contact. He had no health issues, could work and has family in Romania.

15. The appellant submitted that his views as to the role of women had been misunderstood. English was not his first language. He expressed his remorse for his previous conduct and he submitted that he had learned a lot from the rehabilitation course which had been paid for by the state. He had the support of his friends in the UK and the state had paid for his rehabilitation. He was told by assessors and the probation service that he was a ‘role model service user’ and they were surprised he had employment and accommodation on release from prison. He submitted everyone had a right to have a personal relationship and family, and he has found a family. He had previously been thought to have been rehabilitated by another judge and when he ended the BBR course, he was told not to rush into another relationship. He did not have a partner at the time of the course, but did now. The police have not been called to his house and he worked as a caretaker. There had been no problems with the law subsequent to his release.

Conclusions

16. Regulation 23(6)(b) provides that an EEA national who has entered the United Kingdom may be removed if the respondent has decided that the person’s removal is justified on grounds of public policy. Such a deportation is required to be in accordance with regulations 23 and 27 of the 2016 regulations and the material parts are as follows:

“Exclusion and removal from the United Kingdom
23…

(6) Subject to paragraphs (7) and (8), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if—
(a)that person does not have or ceases to have a right to reside under these Regulations;
(b)the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 27; or…

Decisions taken on grounds of public policy, public security and public health
27.—

(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 right of permanent residence under regulation 15 except on serious grounds of public policy and 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 in the best interests of the person concerned, 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.
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also 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 must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(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;
(f)the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) 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 P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin”
17. Schedule 1 of the 2016 Regulations sets out at paragraph 3 that where an EEA national has received a custodial sentence the longer the sentence or the more numerous the convictions, the greater the likelihood that the individual’s continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat affecting of the fundamental interests of society. Schedule 1 paragraph 5 provides that removal of an EEA national who is able to provide substantive evidence of not demonstrating a threat (i.e. successfully reformed or rehabilitated), is less likely to be proportionate. The fundamental interests of society are set out at Schedule 1 paragraph 7 of the EEA Regulations 2016 and as far as relevant to this appeal are as follows:

“The fundamental interests of society
7. For the purposes of these Regulations, the fundamental interests of society in the United Kingdom include—
…
(b) maintaining public order;
(c) preventing social harm;
…
(g) tackling offences likely to cause harm to society where an immediate or direct victim may be difficult to identify but where there is wider societal harm (such as offences related to the misuse of drugs or crime with a cross-border dimension as mentioned in Article 83(1) of the Treaty on the Functioning of the European Union);…
…
(j) protecting the public
…”
18. The appellant has the lowest level of protection under the EEA Regulations 2016 because it was recorded that he entered the UK in 2017, he has not been resident in the UK for five years and had no permanent right of residence before he was imprisoned.
19. We carefully considered all the evidence and we approached our task with the above principles in mind. We do not repeat but refer to the serious nature of the offence committed by the appellant. We appreciate that the index offence was committed in 2021, but we note that prior to that, there was a pattern of behaviour.
20. We have considered the OASys report dated 17th May 2022 in detail and consider it to be the last comprehensive assessment of the risk that the appellant presented following detailed analysis by those professionals charged with the assessment of such matters. The appellant was considered to be a high risk of serious harm to known adults and potential threat to future partners and in particular to the appellant’s ex partner. He was also classified as a medium risk to the child (who was only 5 weeks old at the time) and further, a risk to ‘any children within intimate relationships’. Alcohol was considered to be a factor linked to the appellant’s use of physical violence towards his ex-partner but not the underlying or sole motivating factor. The appellant was assessed as being of medium risk of OVP reoffending and since his arrest he breached his bail conditions. Albeit the risk of serious recidivism was assessed to be low should the appellant engage in offending the risk of serious harm was high.
21. The author of the report referred to the appellant’s thinking and behavioural issues that contributed to the risks of offending, and said, at section 11.10 that they were of the view that the appellant possesses distorted attitudes regarding male privilege, gender roles and the use of abusive and aggressive behaviours as a means of control.
22. The OASys report at [R10.3] recorded in 2022
‘It is my assessment that Mr S… poses a high risk of serious harm to known adults, namely Ms R… and to future partners. I assess that he poses a medium risk of serious harm to children, namely those within intimate relationships. That assessment is that the potential event could happen at any time and the impact would be serious. Mr S… has an established pattern of offending over a sustained period of time which demonstrates his capacity to cause serious harm within intimate relationships. I am of the view that had this matter not been brought to the attention of the authorities, it is likely to have continued. The nature of domestic violence is complex and it is important, when assessing risk to consider behaviours holistically.
The victim of this offence has suffered profound harm and has subsequently fled to safety from Mr S..... He does not know her whereabouts. I note that since his arrest Mr S… has breached his bail conditions and a non-molestation order put in place to protect her, indicating a disregard for Orders of the Court. This also indicates a persistence and willingness to re-victimise her through ongoing attempts at control. In relation to future partners, Mr S.. disclosed he is in a casual sexual relationship with a female whom is married. She has children. Mr S… has not provided me with her details at this stage. I am concerned about the risks toward her particularly due to the nature of the relationship and potential added stressors or issues that could arise. Therefore it is considered risks could present at any time.
Whilst alcohol is a contributory factor in relation to physical violence; it is my view that it is not the underlying cause of this behaviour. It is my view that this serious assault is not likely to have been committed due to loss of control or temper; but is more purposeful and instrumental in exerting control and dominance. The controlled nature of this violence, increases risk concerns. What cannot be discounted is the fact this assault occurred as part of an ongoing pattern of abuse. These behaviours have culminated in the victim having to flee her home and seek refuge for her own safety and that of their daughter.’
23. Importantly the latest report from Sarah Mason NQO of the Probation Service on 1st August 2024 and provided by the appellant, gives a short but critical assessment of the appellant’s risk level and states as follows
‘So I think that is correct that your risk level was reduced to medium with regard to Ms R… but kept at high for potential future partners at the point of closure of your order’ [October 2023].
24. The appellant remains subject to a restraining order until 2026 and he was referred to be subject to MAPPA level 2, and thus included on the Building Better Relationships (BBR) course which we acknowledge he has undertaken.
25. The OASys report identified the appellant’s underlying beliefs contributed to his offending which included not only alcohol although that was a common denominator.
26. The appellant confirmed in his oral evidence that he continued to drink alcohol and we acknowledge that his partner gave evidence that he is not permitted to drink or bring alcohol into the home, but that does not prevent him from consuming alcohol whilst outside and thus being influenced by alcohol whilst in the home. Indeed he had consumed alcohol outside the home prior to committing the index offence. We also note the partner’s evidence that his friend has said to him that is a ‘pussy’ for doing women’s work (although she maintained that he no longer engaged with this friend). More telling was that the appellant, despite the opportunity to engage in indirect contact with his daughter, has refused to do so not only because he considered his ex partner did not ‘co-operate’ but also because indirect contact was not part of the Romanian culture. We accept the order made by the Family Court for indirect contact is not mandatory in the sense that the appellant is under an obligation to send letters, cards and gifts to his daughter, but his approach to the court order and refusal to engage with its terms, when the appellant apparently wishes to further direct contact with his daughter, reflects an inflexibility because of, on his own evidence, his cultural stance. He professed he was remorseful and had not committed further offences but he refused to send cards to his daughter, who in fact has no control over whether school reports or medical records are sent, because he had not received those reports from her mother. Tellingly, the appellant is still not permitted to have the address of his ex partner or daughter but he did not appear to realise that the release of such documents would reveal their whereabouts. Merely to assert that one of the reasons he would not engage in indirect contact was because it was an unknown phenomenon in his culture, was surprising.
27. The evidence of the new partner was carefully taken into account. She confirmed that she had now lived with the appellant since October 2023 and she and the appellant may have had ‘harsh words’ but there had been no incidents of domestic violence. She was recorded previously as having ‘elected not to read those details [his previous offending and the conclusions reached by the probation service i.e. OASys report] but told us that she had now read various documents including the OASys report and a copy of the statement made by the appellant’s ex-partner to the police. She said that the description of the appellant as set out in the OASys report as holding misogynistic views is not a description that she has observed. The appellant assists with cooking cleaning and washing and although the appellant may have behaved differently in 2018, she said, he has come a long way since then. Although she dismissed the suggestion that the appellant would be keen to comply with all behavioural constraints lest he be deported, we note that it was specified in the OASys report that if the appellant entered a new relationship, risks to children would need to be managed through completion of a referral to the children’s safeguarding team and there was no evidence of any such referral. She did not disclose to the court that he continued to drink until it was pointed out that her evidence as to his abstinence contrasted with her own.
28. We are not persuaded that Ms L has the full picture of the appellant’s potential to offend because of the limited time she has known him, and he is evidently aware that his behaviour is under scrutiny, in part, owing to his pending appeal.
29. As identified in the OASys report at [2.8] alcohol was not the only contributing factor to his behaviour. Notwithstanding his ‘remorse’ and the BBR report which identified work in progress, the appellant’s behaviour appeared to be part of a pattern and included misogynistic beliefs. The accreditation of the ‘professional’ Ms Conway, who assessed the appellant for the BBR Post Programme Report dated 24th April 2023, apparently stemmed from her successfully completing training in ‘Core Skills and the BBR Programme’ itself. We did consider the report and we appreciate that the appellant engaged with the BBR programme and was described as showing an openness to discussing his beliefs and was a ‘very productive group member showing support and respect in sessions’ and reflected that he could see behaviour and beliefs that were not helpful. However, the BBR also identified that the appellant himself revealed that ‘within his past relationships, he can act on impulse and, if his thoughts are negative, it can drive his emotions to anger. This is often alongside alcohol use.’ The report identified that maintaining residency in the UK and starting direct contact with his daughter would be protective factors together with employment security but the report also noted that the appellant has ‘historically demonstrated impulsive and aggressive behaviours during conflict and this was linked to gambling and alcohol misuse’. Ms L apparently received this information second hand. We do not consider that this BBR report eclipses the force of the sentencing remarks or the OASys report.
30. The sentencing remarks from the Crown Court Judge include this:

‘This controlling, coercive behaviour and it forms part of this wider and ongoing pattern of abusive behaviour and I am satisfied that your victim, your partner, was isolated and physically, emotionally and financially dependent on you… this was all about entitlement beliefs and attitude… Exerting dominance over a partner is not a proper relationship and subjecting somebody to sustained psychological manipulation is not part of a proper reasonable and loving relationship. You have one conviction only, but it was a breach of on molestation on 10 April, imposed following multiple breaches of bail conditions, which again to me indicates attempts of continuing control and manipulation and it was persistent. For somebody who does not know the legal system here and the police system…’
31. The appellant is still the subject of a restraining order in relation to his ex partner and his daughter. Both the appellant and Ms L relayed the stress of the ex-partner whilst engaged in the Family Court proceedings. The appellant is still only permitted indirect contact. The appellant also told us that he is required to wear an electronic tag as part of his immigration bail conditions. We are persuaded that the pending deportation proceedings together with the ongoing restraining order and electronic tag are significant constraints on the appellant’s behaviour, pending the disposal of his appeal proceedings rather than the disposition of the appellant himself to self restraint and non offending. The appellant has no choice other than to respect the restraining order and does not appear to have any real insight as to his own conduct in relation to his child.
32. We acknowledge that the appellant has undertaken courses including those whilst in prison in the form of business management, manual handling skills, maths and English and an alcohol awareness course and a tailoring course. Since his release the appellant had undertaken a ‘Building Better Relationships course (BBR course). In the light of the serious offence and the sentencing remarks, we are not persuaded that the successful completion of these courses has significantly amended the appellant’s attitudes and belief systems or indeed ongoing alcohol consumption.
33. The appellant’s explanation for the negative comments in the OASys report as being the language barrier, did not in our view account for his actions or the description in the sentencing remarks of his behaviour. The personnel of the National Offender Management Service are experienced in making assessments and would be aware of the need for effective communication and accurate interpretation. They plainly formed a view of the appellant having had the opportunity of speaking to him, and gaining an understanding of his views and beliefs from a range of sources.
34. We are persuaded that the fundamental interests in this particular instance are (b) maintaining public order (c) preventing social harm (e) protecting public services (f) removing an EEA national with a conviction (j) protecting the public and (k) acting in the best interests of a child.
35. In terms of the best interests of the appellant’s own child the Family Court has seen fit to withhold the relevant address and permit indirect contact only and which must reflect protective measures towards the child (and her mother). We were not furnished with any material which suggested that the best interests of the child of Ms L would be affected by the appellant’s removal. The appellant remains a risk to his own child. Bearing in mind the appellant has declined to even engage in the indirect contact we do not accept that he has a subsisting parental relationship with his daughter.
36. We find that the Secretary of State has discharged the burden of proving that the conduct of the appellant in all the circumstances represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account his past conduct, as per Arranz (EEA Regulations - deportation - test) [2017] UKUT 294 (IAC). The risk to society does not have to be imminent.
37. We have nonetheless considered proportionality.
38. His partner Ms L gave evidence on his behalf and it is clear that there is a relationship between her and the appellant which will be affected by his deportation from the UK. We acknowledge that he would be parted from Ms L with whom he lives, but she was aware of his liability to deportation when she commenced the relationship, she has only lived with him for a short while and appeared resigned to his removal should this appeal be dismissed. She accepted that she could visit him as required. Clearly there would be an interference in their relationship because she will be obliged to remain in the UK with her disabled sister. There was little information in relation to Ms L’s own child save that the appellant and he were affable. The OASys report identified that ‘If Mr S… enters a new relationship/ commences contact with his own daughter, risks to children will be managed through completion of an RF1 to the relevant children's safeguarding team to ensure no further exposure to harm posed by Mr S to his children and future children within relationships.’ There was no indication of any referral since the appellant had commenced living with Ms L.

39. We acknowledge the appellant’s private life. He has lived in the UK only since 2017. He has employment here and is in his first year at Canterbury Christ Church University of a BSc in Business & Tourism Management. These proceedings were pending when he signed up for this degree which we note is full time despite him also working full time. He has employment as a caretaker. We conclude, however, that having been brought up and educated in Romania where he still has his father, mother and sister and had worked previously for 7 years (according to his evidence) that he would be able to secure work and accommodation on return. He remains a relatively young man with no significant health difficulties.

40. MC (Essa principles recast) Portugal [2015] UKUT 00520 (IAC) particularly paragraphs 8- 10 of the head identify as follows:

‘8.      Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State ( Dumliauskas [46], [52]-[53] and [59]).
9.              Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like ( Essa (2013) at [34]). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation ( Dumliauskas [55])
10.          In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor ( Dumliauskas [44] and [54]). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognise that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence ( Dumliauskas at [46] and [54])’.


41. As the appellant put it, he has been able to undertake the BBR programme at the expense of the UK but we find he would be able to continue with any rehabilitation in Romania where he has family and the prospect of work. Moreover as noted above the prospects of integration are not a weighty factor in the absence of integration and permanent residence, as here.

42. Further to Paragraph 5 of Schedule 1 of the EEA Regulations 2016, we are not persuaded for the purposes of proportionality that the appellant has been able to provide substantive evidence of not demonstrating a threat because he has successfully reformed or rehabilitated.

43. Overall we find that the appellant’s personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Additionally, we find that the decision to deport him is proportionate in all the relevant circumstances.

44. Although we have rejected the appeal under the EEA Regulations 2016, we have considered the matter on article 8 grounds.

45. The relevant sections of the Nationality Immigration and Asylum Act 2002 set out as follows:

117CArticle 8: additional considerations in cases involving foreign criminals

(1) The deportation of foreign criminals is in the public interest.
(2) The more serious the offence committed by a foreign criminal, the greater is the public interest in deportation of the criminal.
(3) In the case of a foreign criminal (“C”) who has not been sentenced to a period of imprisonment of four years or more, the public interest requires C's deportation unless Exception 1 or Exception 2 applies.
(4) Exception 1 applies where—
(a) C has been lawfully resident in the United Kingdom for most of C's life,
(b) C is socially and culturally integrated in the United Kingdom, and
(c) there would be very significant obstacles to C's integration into the country to which C is proposed to be deported.
(Paragrap5)
Exception 2 applies where C has a genuine and subsisting relationship with a qualifying partner, or a genuine and subsisting parental relationship with a qualifying child, and the effect of C's deportation on the partner or child would be unduly harsh.
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
(7) The considerations in subsections (1) to (6) are to be taken into account where a court or tribunal is considering a decision to deport a foreign criminal only to the extent that the reason for the decision was the offence or offences for which the criminal has been convicted.

46. We accept that the appellant has a family life in the UK with his partner and his deportation will constitute and interference in this relationship. We find however that the deportation is in accordance with the law and necessary for the protection not only of the public but the democratic rights and freedoms. For the reasons identified above we do not conclude that the appellant has a genuine and subsisting relationship with his daughter.

47. In terms of his current partner, from the evidence provided by the partner we do not conclude that the effect on her of the appellant’s deportation would be unduly harsh. She herself observed that if the effect of his actions was deportation, then that was ‘penance’ and that she could visit him if required. She was evidently aware of his pending deportation when she embarked on the relationship.

48. We were not persuaded that the appellant had been resident in the UK for most of his life. He entered the UK in 2017 and has lived most of his life in Romania. In terms of his integration whilst in the UK he was convicted in 2021 only 4 years after entry and was sentenced in 2021 to a term of imprisonment for 2 years for a serious offence displaying scant regard for the law. We appreciate that he has embarked upon a degree but he was aware of the circumstances when commencing his studies. That he is economically independent and can speak English are neutral factors. Further to Section 117B(5) little weight should be given to a private life established by a person at a time when the person's immigration status is precarious.

49. Applying SSHD v Kamara [2016] EWCA Civ 813 which requires a broad evaluative assessment of possible reintegration we find no very significant obstacles to his integration in Romania where he has family and the prospect of work and thus employment and accommodation.

50. Hesham Ali v Secretary of State [2016] UKSC 60 explains at [50]

“The critical issue for the tribunal will generally be whether, giving due weight to the strength of the public interest in the deportation of the offender in the case before it, the article 8 claim is sufficiently strong to outweigh it. In general, only a claim which is very strong indeed - very compelling, as it was put in MF (Nigeria) - will succeed”.


51. Having assessed all relevant circumstances, we find simply that no very compelling circumstances were advanced and that there are no very compelling circumstances such that the appellant’s deportation is disproportionate.


Notice of decision

The appellant’s appeal is dismissed under the EEA Regulations 2016.
The appellant’s appeal is dismissed on human rights grounds.


Helen Rimington
Judge of the Upper Tribunal Rimington
Immigration and Asylum Chamber