United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DA/00188/2015

 

THE IMMIGRATION ACTS

Heard at Field House	Decision & Reasons Promulgated
On 31 March 2016	On 22 April 2016

 

 

Before

 

UPPER TRIBUNAL JUDGE blum

 

Between

 

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

 

yoran nataniel barbosa palma pimentel

(anonymity direction NOT MADE)

 

Respondent

 

Representation :

 

For the Appellant: Ms Isherwood, Senior Home Office Presenting Officer

For the Respondent: None

 

 

DECISION AND REASONS

 

1.              The Secretary of State for the Home Department appeals against the decision of Judge of the First-tier Tribunal R A Cox who, in a decision promulgated on 09 November 2015, allowed the appeal of Mr Yoran Pimentel against the Secretary of State for the Home Department's decision of 24 April 2015 to make a deportation order against him under regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 (the 2006 regulations). For the sake of convenience I will refer to the parties as they were before the First-tier Tribunal.

Background

 

2.              The Appellant is a national of Portugal born in Angola, date of birth 25 December 1995. He was 19 years old and 10 month old at the date of the First-tier Tribunal's decision. The Appellant maintained that he first arrived in the United Kingdom with his mother in September 2008. The Respondent maintains that there is no evidence to substantiate this claim.

 

3.              The Appellant first came to the attention of the United Kingdom authorities on 08 June 2011 when he was reprimanded for destroying or damaging property. Between 30 January 2013 and 10 June 2014 the Appellant received 5 convictions for 11 offences. These included one offence against property, 6 theft and kindred offences, 3 drugs offences and one firearm/shotguns/offensive weapon offence. On 24 April 2014 he was convicted on a plea of guilty on the day of trial to five counts of robbery and received a total of 32 months detention. He was aged 18 at the date of his conviction. These 5 counts related to a series of robberies that occurred on a single day in a park on 21 July 2013. On this date the Appellant was aged 17 years and 5 months. The Appellant was part of a group of young men who robbed victims in the park. According to the sentencing judge's remarks the Appellant was the ring-leader in the robberies and was described as angry and aggressive. He showed a knife handle to victims when they refused to hand over their phones, and the evidence indicated that it was he who took most of the phones. The sentencing judge noted that the Appellant had a lack of family support and help. The offences committed in the park occurred while the Appellant was on bail for another robbery offence.

 

4.              An OASys report concluded that the Appellant posed a medium risk of harm to the public. The report noted that such risk was likely to be greatest when the Appellant needed money, was without family support and was with peers who would also commit offences. The Respondent noted the absence of any evidence from the Appellant as to how he would be financially supported upon his release. The report additionally concluded that the Appellant was at high risk of re-offending. The OASys report noted that there had been an escalation on the Appellant's offending. The report stated that the Appellant had shown, by his actions, that there was a deficit in his consequential thinking which lead him to make poor decisions about how to solve his issues.

 

5.              In light of the Appellant's offending, and having regard to the contents of the OASys report, the Respondent decided to make a deportation order against him. The Respondent believed there was insufficient evidence that the Appellant had adequately addressed all the reasons for his offending. The Respondent believed the Appellant had a propensity to reoffend and that he posed a genuine, present and sufficiently serious threat to the public. The Respondent was not satisfied the Appellant had obtained a permanent right of residence as there was no evidence he arrived in the United Kingdom in September 2008, or that he or his mother had been exercising free EEA free movement rights for a 5 year period. The Respondent noted that the time the Appellant spent in detention did not count towards his lawful residence. The Respondent considered that the Appellant's deportation was justified on grounds of public policy according to the principles set out in regulation 21(5) of the 2006 regulations.

 

6.              The Respondent maintained that her decision complied with the principle of proportionality and that she took account of the Appellant's age, state of health, family and economic situation, length of residence in the United Kingdom, the extent of his links with Portugal and the degree of his integration. The Respondent specifically noted a letter from the Appellant dated 14 October 2014 in which he claimed that he had no regular contact with his mother and that he had moved out of her home after disagreements. In the same letter the Appellant indicated that, prior to his incarceration, he had lived in his own flat. He mentioned having a girlfriend but there was no indication they were cohabiting. The Respondent was satisfied the Appellant had spent his formative years in Portugal, would be familiar with its culture and customs, and may have family or friends there who could assist his re-integration. The Respondent did not consider that the Appellant's deportation to Portugal would prejudice his prospects of rehabilitation. The Respondent noted that, although the Appellant had undertaken some courses in prison, there was no evidence that any external courses or networks had been arranged to continue the Appellant's path to rehabilitation.

 

7.              The Respondent then considered whether the decision to deport the Appellant breached his Article 8 ECHR rights, having regard to the immigration rules relating to deportation (paragraphs A398 to 399D and A362) and sections 117A to D of the Nationality, Immigration and Asylum Act 2002. The Respondent noted that the Appellant had his mother and brother in the United Kingdom, but additionally noted that the Appellant had no regular contact with his mother. The Respondent stated that the Appellant provided no evidence in support of his article 8 claim and noted that the Appellant made no claim to have a partner or children. It was not accepted that the Appellant had resided in the United Kingdom lawfully for most of his life or that he was socially and culturally integrated given the absence of evidence of his ties to the community and the fact that he was serving a prison sentence which excluded him from society. The Respondent stated that the Appellant's deportation was conducive to the public good in light of the length of his sentence and that there were no very compelling circumstances capable of resisting his deportation on human rights grounds.

 

8.              At the time of her decision the Respondent additionally certified the Appellant's case under regulation 24AA. Pursuant to this regulation the Appellant was removed from the United Kingdom to Portugal on 10 June 2015. On 15 May 2015 the First-tier Tribunal sent to the Appellant at his place of detention a 'Non-Suspensive Overseas Address Direction' requiring the Appellant to provide the First-tier Tribunal with his new address within 28 days of his removal from the United Kingdom. The Direction indicated that if a new address was not provided the Appellant's appeal may be decided on the papers before the Tribunal. There was no compliance by the Appellant with the Direction and the First-tier Tribunal proceeded with the appeal on the basis of the documents before it and without the Appellant being represented.

 

The decision of the First-tier Tribunal

 

9.              In his grounds of appeal the Appellant reiterated that he had lived in the United Kingdom since 2008 and that he was 17 years old when charged with the offences in respect of which he was eventually convicted on 24 April 2014. He claimed he had a greater opportunity to 'become better' in the United Kingdom as he had no one to return to or communicate with in Portugal. He claimed his mother was in hospital and he had to look after her and his two brothers. He referred to courses he had undertaken and referred to probation and social care reports he sent to the Respondent.

 

10.          There was no appearance by anyone representing the Appellant at the appeal hearing before the First-tier Tribunal. In his decision the judge accepted, with reference to the Appellant's manuscript of 14 October 2014, that he had an unsettled and troubling childhood. Reference was made to the Appellant's mother who entered into a number of abusive relationships, and the many moves the family had made. The judge noted that information contained in the OASys report did provide some support for the Appellant's claim that he was genuinely intent on rehabilitating himself and that he wanted an opportunity to find employment and become a citizen respectful of the law.

 

11.          At paragraph 10 the judge, applying the balance of probabilities standard, agreed with the Respondent's conclusions that the Appellant's personal conduct, judged from his history of persistent offending at an increasing level of seriousness, coupled with the OAYys report assessment of a medium risk of harm to the public and a high risk of re-offending, showed that he represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

 

12.          In paragraph 11 the Judge set out the requirements of regulation 21(4) of the 2006 regulations. This provides:

 

(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 necessary in his best interests, 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

13.          It is the judge's reasoning in respect of the above regulation, contained at paragraph 12 of his decision that forms the basis of the Secretary of State's appeal. The judge acknowledged that the Appellant was not under the age of 18 at the date of the hearing, nor was he when he was convicted of the 5 counts of robbery or when the decision was made to deport him. The Appellant was however aged 17 years and 5 months when the offences were committed. The judge stated that regulation 21(4)(b) "... clearly reflects the European jurisprudence in such cases as Uner v The Netherlands and Maslov v Austria". The judge continued,

The point here, however, as I see it, is that all of the Appellant's offending including the index offences were committed as a minor. ... The clear inference from Regulation 21(4)(b) is that juvenile offenders are not to be deported save in the most extreme circumstances. I cannot see that the circumstances that the Appellant's conviction and sentence and the Respondent's consequent decision occurred after his 18 ^th birthday could justifiably and proportionately undermine that basic principle. When I add to that the consideration that the Appellant would have a prospect of assistance with his rehabilitation in this country but in all probability none in Portugal, I am driven to conclude that the Respondent's decision does not comply with the principle of proportionality and that accordingly the Appellant's appeal must be allowed under the regulations.

14.          The judge consequently allowed the appeal under the 2006 Regulations.

 

The Grounds of Appeal to the Upper Tribunal

 

15.          The Secretary of State takes issue with the judge's reliance on regulation 21(4) in his proportionality assessment. The Respondent contends that the imperative grounds needed to be established in order to remove an individual under regulation 21(4) only relates to an individual who is under the age of 18 when the 'relevant decision', that being an EEA deportation decision, is taken. As the Appellant was over the age of 18 when the relevant decision was taken regulation 21(4) cannot apply. The First-tier Tribunal therefore materially erred in finding that the decision was disproportionate by reference to that regulation and had unlawfully adopted the 'imperative' threshold.

16.          The grounds further contend that the judge's reliance on Uner and Maslov were misguided as these decisions concerned the degree of an individual's integration in a state in respect of Article 8 in circumstances where that individual arrived in the state at a young age and not the age at which offences were committed. While the age at which an individual committed an offence would be potentially relevant under regulations 21(4)(a) and 21(6), they had no relevance under regulation 21(4)(b). Moreover, given that an assessment of proportionality was required under regulation 21(6), there was no logical or lawful basis to have a further or additional assessment of proportionality under regulation 21(4)(b).

 

17.          The grounds finally contend that the judge placed disproportionate weight on the issue of rehabilitation in circumstances where the Appellant only had available to him the lowest level of protection under the 2006 regulations, and that the judge was not entitled to find that the Appellant's prospects of rehabilitation in Portugal would be markedly worse than in the United Kingdom, having particular regard to the decision in Secretary of State for the Home Department v Dumliauskas & Ors [2015] EWCA Civ 145.

 

The error of law hearing

 

18.          There was no attendance by anyone on the Appellant's behalf at the hearing. This is not surprising given that there were no representatives instructed by the Appellant, and that he had no identified sponsor, and that he failed to provide a postal address to the First-tier Tribunal. It is likely that the Appellant is wholly unaware of the First-tier Tribunal decision allowing his appeal or the Upper Tribunal hearing.

 

19.          Ms Isherwood reiterated the grounds, pointing out that the relevant decision was taken when the Appellant was over the age of 18 and regulation 21(4)(b), on its plain and clear wording, had no relevance. Ms Isherwood then made further submissions under regulation 21 generally, having regard to the absence of evidence provided by the Appellant in respect of the life he established in the United Kingdom or the extent of his social and cultural integration. It was submitted that the Appellant failed to demonstrate that he had acquired a permanent right of residence. Any proportionality assessment fell in favour of the Respondent. I was referred to paragraph 53 of Dumliauskas which suggested there were rehabilitative options in Portugal.

 

Discussion

 

20.          This appeal raises an issue as to the proper interpretation of regulation 21(4)(b) of the 2006 regulations. The judge was of the view that " the clear inference from Regulation 21(4)(b) is that juvenile offenders are not to be deported save in the most extreme circumstances." Accordingly, as the Appellant was under the age of 18 when all his offences were committed, the Respondent had to establish the existence of imperative grounds in order to justify the Appellant's deportation.

 

21.          The starting point in assessing the meaning and purpose of regulation 21(4)(b) is to examine the actual language used in its construction. A 'relevant decision' is an EEA decision, such as an expulsion decision, taken on grounds of public policy, public security or public health. Such a decision can only be taken on imperative grounds if an EEA national has resided in the United Kingdom for a continuous period of at least 10 years prior to the relevant decision (reg 21(4)(a)), or the EEA national 'is' under the age of 18 (reg 21(4)(b)). The age of the EEA is directly linked to the making of relevant decision. The use of the singular present tense to describe the age of the EEA national vis-à-vis the relevant decision strongly suggests that regulation 21(4) only applies when the EEA national is under the age of 18 when the actual EEA decision is taken.

 

22.          I have additionally considered Article 28(3) of Directive 2004/38/EC which reads:

 

An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:

 

(a)     have resided in the host Member State for the previous ten years; or

 

(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.

 

23.          The Directive, echoing the Regulation, directly links the decision to expel an EEA national with his or her age using the present tense. The consistent use of the present tense in both legislative provisions compellingly suggests that the need to demonstrate imperative grounds of public security only comes into play where the decision is made when the EEA national is a minor.

 

24.          The judge sought to interpret regulation 21(4) in a teleological manner, in light of the ECrtHR decisions in Uner v Netherlands [2006] 3 FCR 229 and Maslov v Austria [2008] EHRR 546 and the emphasis they placed on age. Such an approach to the construction of the regulation cannot however undermine its otherwise clear wording. In any event, the factors relevant to an assessment of proportionality identified in these authorities find expression in regulations 21(5) and 21(6). Given the overall structure of regulation 21, subparagraphs 3 and 4 act as gateway requirements for EEA decisions that are taken on public policy and security grounds, as well as public health grounds.

 

25.          I also accept the criticism in the grounds that the judge failed to actually identify the particular principles established by those two authorities that were said to be reflected in regulation 21(4)(b). At paragraph 75 of Maslov the ECrtHR stated, " In short, the Court considers that for a settled migrant who has lawfully spent all or the major part of his or her childhood and youth in the host country very serious reasons are required to justify expulsion. This is all the more so where the person concerned committed the offences underlying the expulsion measure as a juvenile ." Whilst the fact that a person committed all his offences as a minor was relevant to the ECrtHR in Maslov, it is apparent that the principle concern of the ECrtHR was the fact that the migrant had spent all or a major part of their childhood or youth in the host state. Regulation 21(4)(b) however makes no reference to the length of residence of the EEA national. I additionally note, on the particular facts of the instant appeal, that there was no satisfactory evidence that the Appellant had lawfully lived all or most of his youth in the United Kingdom, even taking his claim to have arrived in the United Kingdom in 2008 at its highest. In any event Akpinar, R (on the application of) v The Upper Tribunal (Immigration and Asylum Chamber) [2014] EWCA Civ 937 confirms that the EcrtHR was not intending to establishing a new rule of law creating a consistent and objective hurdle to be surmounted by the State in all cases to which it applies.

 

26.          I find the First-tier Tribunal did fall into legal error by requiring the Respondent to demonstrate that imperative grounds of public security were required in order to deport the Appellant. I am satisfied that such error was material to the First-tier Tribunal's decision.

 

27.          In the absence of any further contact from the Appellant or evidence provided by him it is appropriate to remake the decision. I do so having regard to the evidence before me, including the OASys report, the Appellant's grounds of appeal and his manuscript letter. In remaking the decision I adopt the approach identified by the Upper Tribunal in Badewa (ss 117A-D and EEA Regulations) [2015] UKUT 329 (IAC)

 

28.          Given the absence of any firm evidence as to when the Appellant first entered the United Kingdom and whether he or his mother were ever qualified persons, or the family members of a qualified person, there is no basis upon which I can conclude that the Appellant has acquired a right of permanent residence under the provisions of regulation 15 of the 2006 regulations.

 

29.          No criticism has been made of the First-tier Tribunal's conclusion, reached at paragraph 10, that the Appellant represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. I find, in any event, that he does constitute such a threat having regard to the details of the OASys report as described above, his history of persistent criminality of increasing seriousness, and in light of the absence of any satisfactory evidence that he has access to networks of support.

 

30.          I have considered the deportation decision in accordance with the factors under regulation 21(5) and (6) of the 2006 regulations. Although the Appellant claims to have no friends or family in Portugal, he left that country when he was 13 years old and is likely to be familiar with the language and culture. There is no satisfactory evidence of the degree of the Appellant's integration, both social and cultural, in the United Kingdom. Although he claimed to have a girlfriend he failed to provide any further details of this relationship. There is no evidence that he has any children and his letters to the Respondent suggest that he is estranged from his mother. There is nothing to suggest he has any significant health issues.

 

31.          I do attach weight to the fact that the Appellant committed all his offences when he was a minor. This is clearly a significant factor to take into account when considering whether the decision is proportionate under regulation 21(5)(a) and is a relevant factor under regulation 21(6). This factor however has to be balanced against the seriousness of his offending and the threat he poses to the United Kingdom given the conclusions of the OASys report. I have considered the EEA decision to deport the Appellant based exclusively on his own conduct.

 

32.          Although the Appellant claims that Portugal does not provide the same opportunities in life as England does I am satisfied that there are likely to be sufficient opportunities for him to engage in rehabilitation such that there is a reasonable prospect that he will cease to commit offences. In Dumliauskas the Court of Appeal stated, at paragraph 53, "... in the absence of evidence, it is not to be assumed that medical services and support for, by way of example, reforming drug addicts, are materially different in other Member States from those available here. This is not the occasion to conduct a comparative survey, but it is appropriate to mention, by way of example, that medical services in France are said to be excellent, and that Portugal has been innovative in relation to treating drug addiction ." This is of some relevance in light of his previous convictions for possession of cannabis.

 

33.          Having holistic regard to the aforementioned factors I am satisfied that the Appellant's personal conduct does represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, that the Appellant's removal is proportionate in all the circumstances, and, having regard to the factors in regulation 21(6) of the 2006 Regulations, and that his removal is therefore justified under regulation 21 of the said Regulations.

 

34.          I will deal briefly with whether the Appellant's removal is a breach of Article 8 ECHR. I note the absence of any satisfactory evidence that the Appellant is in a relationship with anyone in the United Kingdom. I note his claim to have a mother and siblings but the Appellant has not provided any satisfactory evidence of his relationship with his family members. Nor is there satisfactory evidence of the nature and extent of any private life that he may have established in the United Kingdom. With respect to the requirements for my consideration in sections 117B and 117C of the Nationality, Immigration and Asylum Act 2002, I am prepared to accept that the Appellant is proficient in English. There is no evidence that he is financially independent. Nor is there any indication that he was lawfully entitled to remain in the United Kingdom, either under the immigration rules or as a result of his free movement rights as a national of an EEA state. I note that deportation of foreign criminals is in the public interest and that his offence was serious as reflected in the two year custodial sentence. Given that the Appellant has not resided in the United Kingdom for most of his life neither Exceptions 1 or 2 in section 117C apply to him. Having regard to these factors 'in the round' I am satisfied that the Appellant's removal does not constitute a disproportionate interference with Article 8.

 

 

Notice of Decision

 

The First-tier Tribunal Judge made a material error of law.

The Secretary of State for the Home Department's appeal is allowed.

I remake the decision dismissing Mr Pimentel's appeal against the making of a deportation order.

 

No anonymity direction is made.

 

20 April 2016

 

Signed Date

 

 

Upper Tribunal Judge Blum