Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005217

First-tier Tribunal No: DA/00067/2024

THE IMMIGRATION ACTS

Directions Issued:

22nd April 2025

Before

UPPER TRIBUNAL JUDGE RIMINGTON
DEPUTY UPPER TRIBUNAL JUDGE HOSHI

Between

PETRUS MAAS
(ANONYMITY ORDER NOT MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr A Boyd, Alexander Boyd Solicitors
For the Respondent: Ms S Cunha, Senior Home Office Presenting Officer

Heard at Field House IAC on 27th March 2024

DECISION

1. The appellant appealed the decision of First-tier Tribunal (FtT) FtT Judge Wood (the judge) who, on 27th September 2024, dismissed the appellant’s appeal under the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations) finding the appellant was a present and genuine threat to the fundamental interests of society. The appellant had appealed to the FtT against the respondent’s decision dated 2nd August 2024 (a supplementary decision to that of 26th June 2024) to deport him.

2. The appellant had the lowest level of protection under the EEA Regulations because he had no permanent right of residence. This was not challenged.

Grounds of Appeal

3. The written grounds were threefold as follows:

(i) The judge erred in law by focussing solely on the appellant’s two previous convictions from the Netherlands which were 20 and 10 years previous. These should not in themselves justify the expulsion decision further to Regulation 27(5) of the EEA Regulations 2016.

(ii) The judge erred by failing explicitly to find that the respondent had discharged the burden of proof to the relevant standard. The judge had acknowledged that no official documentation from the Netherlands relating to the appellant’s convictions, sentencing and rehabilitation and evidence of future risk of offending was provided and haphazardly commented on the appellant’s attitude and engaged in guesswork as to the nature of the convictions. The judge erred in finding that the appellant’s past conduct reached the relevant threshold.

(iii) There was insufficient evidence to support the judge’s findings of fact and those made were of a standard no reasonable judge could have reached, Perry v Raleys Solicitors [2019] UKSC 5 [52]. By way of example:

(a) the judge relied on his 25 years of experience in the criminal law, but he had a lack of knowledge of Dutch law to find the appellant was convicted of manslaughter,

(b) in the absence of official documents, it was not open to the judge to assume or presume any circumstances relating to the offences or the risk of reoffending,

(c) the judge’s assumptions and inferences in relation to the appellant’s character did not assist with the finding that the appellant was a genuine present and sufficiently serious threat affecting the fundamental interests in society i.e. that the appellant was lying that he was homeless, because when the appellant left his girlfriend, he was homeless. When or if the appellant had left his girlfriend where he lived then in effect he was or could have been homeless,

(d) in the absence of any official and reliable evidence on the appellant’s past convictions and rehabilitation, which had not been assessed in any meaningful or reliable manner, the judge’s proportionality assessment was also flawed.

Conclusions

4. The appellant’s legal representative filed a skeleton argument. This effectively expanded upon the written grounds. There was no Rule 24 response from the Secretary of State. We were provided with a composite bundle which included an application under Rule 15(2)(A).

5. We take each ground in turn and weave in the oral submissions as appropriate. Mr Boyd largely relied on his written grounds.

6. Mr Boyd advised that the documentation included in the Rule 15(2)(A) application from the appellant included confirmation from the Netherlands that the appellant had been convicted in 2014 of ‘homicide’, not murder. Mr Boyd rejected Ms Cunha’s submission that this was the ‘umbrella term’ for unlawful killing, including murder, and advised that the new documentation demonstrated that the appellant was, in fact, convicted of manslaughter. Mr Boyd submitted that the judge should, effectively, have given directions that official documentation should have been served and adjourned the FtT hearing to enable that to happen. When we pointed out that no such application had been made to the judge at the hearing, and it had been open to the appellant himself to provide further documentation through the auspices of his then solicitors, Mr Boyd submitted that ought to have happened. He accepted no complaint had been made against the former solicitors. Any such assertion as to an adjournment or poor representation was not pleaded in the grounds and we find no basis for this submission.

7. As set out in E v Secretary of State for the Home Department [2004] EWCA Civ 49 at [23 (ii)]

‘New evidence will normally be admitted only in accordance with "Ladd v Marshall principles" (see Ladd v Marshall [1954] 1 WLR 1489), applied with some additional flexibility under the CPR (see Hertfordshire Investments Ltd v Bubb [2000] 1 WLR 2318, 2325; White Book para 52.11.2). The Ladd v Marshall principles are, in summary: first, that the fresh evidence could not have been obtained with reasonable diligence for use at the trial; secondly, that if given, it probably would have had an important influence on the result; and, thirdly, that it is apparently credible although not necessarily incontrovertible. As a general rule, the fact that the failure to adduce the evidence was that of the party's legal advisers provides no excuse: see Al-Mehdawi v Home Secretary [1990] 1AC 876.’

No application was made on the basis of the Ladd v Marshall principles and Mr Boyd accepted that the documentation (referred to in the rule 15(2A) application) dated from around 2017 and was thus available to the appellant at the time of the FtT hearing. No good reason for the failure to adduce the evidence before the FtT has been advanced. We do not admit the further documentation.

8. The difficulty with the submission that ‘official’ documentation was not provided is that the appellant was served with the Secretary of State’s decision of intention to deport him dated 29th May 2024. That decision to make a deportation order highlighted that following the appellant’s encounter with ‘Police Scotland’ ‘an overseas criminal record check’ was conducted which revealed that the appellant was convicted on 27th January 2004 of common assault (21 days imprisonment) and on 31st July 2014 of murder (7 years in prison). The appellant did not take issue with these convictions and in his witness statement, he himself identified that he was convicted of ‘murder’. The skeleton argument submitted on behalf of the appellant also identified this conviction.

9. The judge considered all the documentation and was well aware that he did not have sight of any official documents, and recorded and factored into the decision that he did not have knowledge of the Dutch criminal justice system and that ideally ‘one or both of the parties would have been of greater assistance’ [23]. Thus, the judge did his best with what information was to hand and relied on ‘what is agreed, whilst very much having in mind that it is for the respondent to prove her case’ [23]. In relation to the convictions the judge confirmed that much was agreed. Importantly, the judge recognised that although the appellant stated he was convicted of murder, from the sentence the judge deduced the conviction was in fact for manslaughter [24]. It was open to the judge to reject the appellant’s account, bearing in mind on the appellant’s own evidence he was convicted of murder, that the appellant had acted in self defence or that it was the fault of the police. Again, on the appellant’s own account he had given evidence before a jury and yet was disbelieved [24]. It was however to the appellant’s advantage that the judge concluded the appellant was only convicted of manslaughter and not murder. We find no error in the judge proceeding on the information before him.

10. On a careful reading of the decision, however, the judge did not merely focus on the offence. Both convictions were attacks on partners [22] and a pattern was identified and a propensity to such crime identified. Apart from the offending, the judge set out the conduct of the appellant subsequent to his offending which included the appellant minimising his offending and his approach to his application for leave to remain which involved dishonesty. In a balanced approach, the judge placed no weight on the other United Kingdom police reports which had not resulted in conviction, not least because the judge was not provided with them.

11. Although Mr Boyd submitted that the application form in which the appellant was said to have lied was not produced the judge found at [28] that ‘it was common ground’ that the appellant declared that he had been convicted in the Netherlands for ‘fighting’ and that he had been sentenced to ’60 months’ and that it was common ground that neither of these facts was correct. It was also recorded that the appellant blamed the Citizens’ Advice service which had helped him fill out the application form, although the appellant did concede that he had supplied the information. Moreover, the appellant confirmed in oral evidence that he had indeed told them [the Citizens Advice service] his sentence was 5 years and that it was for ‘fighting’. On this basis it was open to the judge to conclude that the appellant’s conduct was dishonest. Further, it was open to the judge, having assessed the appellant’s oral evidence that he accepted only limited blame for the death of the ex-partner [24].

12. The judge also found at [19] that the appellant’s oral evidence that he had no ties in the Netherlands contrasted sharply with the testimony of Ms McConachie who confirmed he was in contact with both of his siblings, and they had met up at a BBQ as recently as 2023.

13. The judge also recorded that Ms McConachie, whose evidence was found to be truthful and reliable [20], took the view that the appellant’s presentation of himself as homeless was dishonest. That is the view of Ms McConachie not merely that of the judge who remarked ‘when she raised her concerns [with the appellant] he went nonetheless and curiously informed the police of her threat to self-harm’. It was open to the judge to conclude that

‘For all of the reasons set out above, I have seen insufficient evidence of a cessation or substantial diminution of the threat which is obviously caused by someone who had been convicted of murder relatively recently, and who has a history of violence against women. I accept that he has been in relationships with two women since he was released, and that there have been no repeats of this type of conduct. However, the relationships have been for two years. He was only released 5 years ago. Given the gravity of offending, this recent history does not offset the matters of concern.’ [38]

14. Here the judge does focus on the gravity of the offending, but the judge was entitled to take this into account when considering the appellant’s conduct overall. There was not merely narrow focus on the offending. We also refer to and rely on our findings in relation to [33] below.

15. Ground (ii) can be answered shortly. We refer to [32]; here the judge explicitly answers the relevant question of whether the respondent had demonstrated that the appellant’s personal conduct represented a genuine present and sufficiently serious threat affecting one of the fundamental interests of society. The judge at [33] identified that too much emphasis should not be placed on the appellant’s criminal history and convictions should be placed in context and taken with the other evidence which might show a diminution of the present threat. Clearly that offences have been committed cannot be ignored.

16. The judge was aware the appellant had not committed offences since the second offence in 2014 and that the first was committed in 2004. It was open however to the judge to find on the evidence that the respondent had discharged the burden of showing the appellant’s conduct represented a genuine present and sufficiently serious threat. The judge noted both offences were violent offences against partners and that the appellant therefore had a propensity for this type of offence. The decision demonstrates that the judge was aware that the offences were ten years apart and that the appellant had spent a good part of time incarcerated since 2014, and that recurrence could occur even after a lengthy period. It was open to the judge to identify a ‘pattern’. The judge found the appellant evasive about the latest offence and had an attendant lack of insight. This view was reinforced because of the appellant’s attitude which was ‘repeated when he submitted the application for leave to remain in the UK in 2019’ [36]. We have detailed this above such that the appellant described in his visa application his murder offence as ‘fighting’ and his sentence as ’60 months’ which downplayed the gravity of the incident and the sentence; he ‘deflected blame’ relaying that his partner and the police were to blame for the death and his advisers ‘were at fault for the way the application was completed’ [36]. Additionally, the judge found limited evidence of the appellant taking part in rehabilitative courses [37].

17. As for Ground (iii), there was ample evidence from the appellant himself and Ms McConachie for the judge to make cogent and reasoned findings. The judge’s reference to having 25 years of criminal experience did not materially undermine his findings particularly bearing in mind the finding of manslaughter was advantageous to the appellant when he himself had described his offence as murder. The later references by the judge to murder were mere shorthand, having made the explicit finding that it was an offence of manslaughter which was applicable; we find this does not undermine the judge’s findings. We have addressed the issue of the official documentation above.

18. The judge did not merely make assumptions and inferences about the appellant’s conduct and behaviour. The findings on the character of the appellant were based largely on either agreed evidence, evidence from the appellant or evidence from Ms McConachie his partner. The judge acknowledged that there was no OASys type report, but it was open to the appellant to provide information on his rehabilitation. That the appellant has instructed different solicitors merely suggests a different view was taken.

19. The judge relied on sufficient evidence to support his cogent and reasoned findings of fact which supported reasoned conclusions. We find no material errors of law.

Notice of decision
The judge did not materially err in law and the decision of the FtT stands. The appeal of Mr Maas remains dismissed.

H Rimington

Judge of the Upper Tribunal Rimington
Immigration and Asylum Chamber

10th April 2025