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

 

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DA/01680/2014

 

 

THE IMMIGRATION ACTS

Heard at Field House	Determination Promulgated
On 18 February 2016	On 22 April 2016

 

 

Before

 

 

UPPER TRIBUNAL JUDGE JORDAN

 

 

Between

 

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

 

And

 

 

RICARDO BARROS VAN-DUNEM

Respondent

 

 

Representation :

 

For the Appellant: Ms A. Fijiwala, Home Office Presenting Officer

For the Respondent: Mr E. Wilford, Counsel, instructed by Wilson Solicitors LLP

 

DETERMINATION AND REASONS

 

1. When I found there was an error of law, I set out my reasons in these terms. Having set out these reasons, I shall continue to follow their paragraph numbering in order to avoid confusion:

The error of law in the First-tier Tribunal's decision

 

The Secretary of State appeals against the determination of First-tier Tribunal Judge Page promulgated on 29 December 2014 allowing the appeal of Mr Van-Dunem, to whom I shall refer to as 'the appellant' as he was before the First-tier Tribunal.

 

2. The single most crucial error of the Judge was his failure to consider and follow the approach adopted by the Court of Justice in Secretary of State for the Home Department v MG [2014] EUECJ C-400/12.

 

3. The appellant is a citizen of Portugal born on 7 February 1989 and entered the United Kingdom aged 5 in 1994 or 1995. It is conceded that he is entitled to a right of permanent residence under the Citizens Directive and the Immigration (European Economic Area) Regulations 2006 (2006 No 1003).

 

4. The appellant was convicted of an offence on 1 September 2010 when he was sentenced to 4 years imprisonment on 2 counts for possessing Class A drugs (crack cocaine) with intent to supply. The offences were committed on 2 August 2010. He had 118 packets of cocaine in his possession and £2,000 in cash. The Secretary of State made a decision to deport the appellant on 28 June 2012.

 

5. His appeal was allowed by the First-tier Tribunal in a determination promulgated on 15 October 2012 in purported reliance on the 2006 Regulations. [I then set out the provisions of Reg. 21 to which I shall return later in the determination.]

 

6. The 'serious grounds of public policy threshold' and the 'imperative grounds of public security' threshold are sometimes referred to as the second and third (or highest) level of protection respectively.

 

7. The appellant was subsequently convicted on 5 July 2013 for like offences committed in April 2013 and was sentenced to a further 2½ years imprisonment. The Secretary of State made a second decision to deport him on 20 August 2014.

 

8.       A period of imprisonment breaks the continuity of residence, see Onuekwere v Secretary of State for the Home Department [2014] EUECJ C-378/12 (16 January 2014) and paragraph 33 of Secretary of State for the Home Department v MG [2014] EUECJ C-400/12. The relevant passage dealing with effect of imprisonment in assessing the application of the reg. 21(4) imperative grounds is as follows: [paragraphs 33 - 36 were recited, see below].

 

9. Accordingly, neither when the decision was made in June 2012 nor when the decision was made in August 2014 had the appellant been in continuous residence for 10 years for the purposes of reg. 21(4). The same was true when the appeals were heard in 2012 and 2014 respectively.

 

10. Judge Page treated the determination of the panel in 2012 as the starting-point. This was unfortunate since the panel in the first appeal applied the wrong test at paragraph 50 of its determination:

 

The decision to deport the appellant is dated 28 June 2012. In the 10 year period ending on that date, the appellant was imprisoned for two years and in detention in a Young Offender Institution for 10 weeks. We are satisfied that the appellant was continuously resident in the UK for a period of more than 10 years before he was sentenced to 10 weeks detention. We are satisfied that neither his period in detention nor his period of imprisonment involved the transfer to another State of the centre of his personal, family, or occupational interests, or the breaking of the integrating links we had previously forged with the UK. We are satisfied that he is entitled to the enhanced, third and highest level of protection against expulsion, provided by reg. 21(4)(a).

 

11. The panel was wrong in adopting this approach. He was not entitled to the highest level of protection, namely, imperative grounds of public security. The periods of imprisonment broke the period of continuous residence during the 10 years immediately preceding the decision. Indeed, it had happened twice.

12. Further, when Judge Page came to determine the issue in December 2014, the appellant had by then committed a further offence of the same type for which he had received a second substantial period of imprisonment. Hence, the first panel's determination of the appellant being a medium risk of harm had proved over optimistic. Had the panel had the gift of foresight (which it did not), it would not have determined the appellant was a medium risk of harm; rather, it would have been forced to say that he was a risk of harm.

 

13. In addition, the appellant had been given a warning on 22 October 2012 that, should he re-offend, further consideration would be given to deporting him.

 

14. Consequently, not only was the appellant convicted of possessing a controlled drug (cocaine) with intent to supply on 24 April 2013 but he did so (a) in defiance of the express warning that had previously been given only six months before and (b) any mitigation he might advance to the effect that he had become a reformed character was torpedoed by the re-offending. Talk of his having become integrated into the life and values of the United Kingdom rang hollow. For these reasons, if the panel's earlier decision was a starting-point, (as indeed it was), circumstances had already departed significantly from it to require a thorough-going re-assessment.

 

15. Unfortunately, Judge Page appears to have become over-influenced by the Secretary of State's concession that imperative grounds of public security had not been met. This was not the correct approach since, in the appellant's case, this was not a material consideration and never had been. The appellant did not meet the threshold to be treated as benefitting from this highest level of protection against removal and the Secretary of State did not need to establish that the threshold had been met.

 

16. At no stage in the determination did the Judge apply the correct test, namely, serious grounds of public policy. This renders the determination seriously flawed and requires it to be set aside for this reason alone.

 

17. It is compounded by the Judge's approach to the respondent's failure to meet the imperative grounds test. He appears to have treated this as dispositive of the appeal in the appellant's favour, see paragraph 15 of the determination:

 

I agree with the submission made on behalf of the respondent that the appellant does pose a risk of reoffending, a risk to the public, but imperative grounds of public security are not made out by that. The position is that this appellant, having acquired a permanent right of residence, cannot be deported if he commits criminal offences unless those offences can arguably give ground to a finding that there are in imperative grounds of public security to deport the appellant.

 

18. This is simply wrong.

 

19. It is particularly disquieting given that the Judge has accepted the appellant poses a risk of re-offending and a risk to the public. (I do not entirely comprehend why this does not amount to imperative grounds of public security but, for the reasons I have given, that is beside the point.) I do, however, understand why the Judge was persuaded otherwise, given the repeated concessions by the Presenting Officer that the respondent could not establish that there were imperative grounds of public security to deport the appellant under the 2006 regulations; see, for example, paragraphs 2 and 11 of Judge Page's determination.

 

20. As a repeat offender, it is my preliminary view that the appellant is unlikely to succeed in establishing that he is not a serious threat to the well-being of the community, given the findings of fact about the threat he poses to the public. For the present, I cannot see how the respondent has not established the threshold test for removal on grounds of public policy given the sustainable finding that there is a risk of reoffending. In other words, can the appellant realistically argue that these are not serious grounds? Whilst I permit the appellant to argue the issue fully before me, it is useful if the parties are aware of where the real issue lies in this case.

 

21. As the Judge's determination is materially flawed, I set aside the decision and give directions for it to be re-made. Given the fact that the appellant has been in the United Kingdom since he was five years old and is now aged 26, with little or no links to Portugal, the substantial issue in this appeal is the proportionality of his removal. His immediate family is in the United Kingdom and have been here for more than two decades.

 

22. The determination is likely to focus on the issue of proportionality, a matter on which Judge Page had nothing to say.

 

The re-making of the decision

 

23. As I stated, the appellant first arrived in the United Kingdom in 1994, some 21 years ago, aged 5. He first came to the attention of the authorities on 5 April 2005 when, aged 16, he was cautioned for disorderly conduct. He was convicted in August 2006, aged 17, of an assault occasioning actual bodily harm. The sentence was varied to a supervision order of 12 months presumably on his conviction on 23 October 2006, aged 17 of theft and common assault. On 6 July 2007, by which time the appellant had become an adult, he demonstrated his involvement with drugs. He was convicted of possession of cocaine and heroin and was sentenced to 10 weeks in a young offenders' institution. This was followed by convictions in 2008 and 2009, when the appellant was 19 and 20, of possessing cannabis for which, on each occasion, he was fined.

 

24. Pausing there, these are typical offences committed by a minor and a young man who was clearly in need of some form of re-direction. These were relatively petty crimes and dabbling in drugs. Whilst they form a substantial part of the tally of his offending (which now stands at 7 convictions relating to 12 offences) they commenced after the appellant had been in the United Kingdom for at least 10 years. Given his age, they took place at a time when it must be assumed the appellant had become integrated into the United Kingdom.

 

25. Considerable caution must be exercised before placing too much weight on juvenile offending given the fact that an individual should not be 'written-off' at an early age. One looks to see if the individual has turned the corner so that, with greater age and maturity, with greater responsibility and commitments, the adolescent offending may properly be seen as an unfortunate phase in that individual's formative years which should not impact on a person's chances in life at a later stage. That is not to say that the offending can be overlooked. It is part of the history, all of which must come into play when a rounded assessment is called for. For the purposes of this appeal, it does not signify greatly. In any event, it pales into greater insignificance when the Tribunal is faced with the impact of the two much more serious convictions.

 

26. It is within this context that the Tribunal considers the appellant's conviction at Kingston Crown Court on 1 September 2010 of possessing what appears to have been cocaine and heroin with intent to supply. For these two offences he was sentenced to a concurrent sentence of four years imprisonment. Deportation proceedings were initiated and his appeal against the respondent's decision to deport him was allowed on 15 October 2012. Unsurprisingly, a warning letter was sent to the appellant on 22 October 2012 that, should the appellant reoffend, further consideration would be given to his deportation. Regrettably, on 5 July 2013, he was convicted Kingston Crown Court of two similar offences as well as possessing cannabis for which he was later sentenced to 30 months imprisonment. It is important to consider the basis of his plea, repeated before me, that he was pressurised into reoffending by those involved in the commission of his earlier conviction who felt that they were out of pocket. The basis of this plea was accepted by the prosecution and must, I feel, be the basis of my approach, notwithstanding the doubts expressed by the sentencing judge:

I do accept that people in your position can sometimes find themselves in a situation where they are subject to intimidation and coercion. That is the basis of your plea.

The prosecution do not seek to go behind it, but I make it clear that I do not wholeheartedly accept that and, as I say, I know that this is not the first time you have been involved in drugs. One of the serious aggravating features of this case is that in 2010, you were given four years imprisonment for an identical offence at this court, 1 September 2010, for possession with intent to supply Class A drugs and another offence, possession with intent to supply Class A drugs. I do not know whether they are indicted in that way because one was for cocaine and one was for heroin and so I feed that into the context of these sentencing remarks.

You did not say whether or not you were intimidated or coerced into offending on that occasion.

In any event, the basis of your plea was that you were cutting and packing the drugs and I take that at its highest and then I look at the sentencing guidelines that drug offences, it seems to me that places you firmly within the significant role bracket.

 

27. The effect of this is that the appellant has now been convicted of two offences of the most serious kind for which he has been sentenced, in total, to 6 ½ years imprisonment. Even if due allowance is made for the element of coercion involved in the later offence (which may be reflected in the sentence of 30 months imprisonment) this is very serious criminal misconduct. The risk of reoffending must form a central part of this appeal.

 

The Directive and the Immigration (European Economic Area) Regulations 2006 (2006 No 1003)

28. R ecitals 23 and 24 in the preamble to the Directive 2004/38/EC ('the directive') :

 

(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the [EC] Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.

 

(24) Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. In addition, such exceptional circumstances should also apply to an expulsion measure taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child, of 20 November 1989.

 

28. The Immigration (European Economic Area) Regulations 2006 accurately transpose the requirements of the Directive into United Kingdom domestic law:

 

21.—(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 permanent right of residence under regulation 15 except on serious grounds of public policy or public security...

(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who...has resided in the United Kingdom for a continuous period of at least ten years prior to

the relevant decision;

(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, 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 concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(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.

(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person 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 the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.

 

The case law

 

29. In Secretary of State v MG, Case (C-400/12) the Court of Justice held the question of the level of protection to which an appellant was entitled was an holistic question and that the determination of the level of protection attained required scrutiny of the appellant's links to the country of residence and to his degree of integration. As we shall see, that is no more than the application of principles of proportionality where the forces in favour of removal are balanced by the forces gravitating in favour of permitting the individual to remain. In order to attain the highest level of protection, it is accepted that the ten-year period of residence must in principle be continuous and must be calculated by counting back from the date of the decision ordering expulsion:

 

33. It follows that periods of imprisonment cannot be taken into account for the purposes of granting the enhanced protection provided for in article 28(3)(a) of Directive 2004/38 [imperative grounds] and that, in principle, such periods interrupt the continuity of the period of residence for the purposes of that provision.

 

34. As regards the continuity of the period of residence, it has been stated in paragraph 28 above that the ten year period of residence necessary for the granting of enhanced protection as provided for in article 28(3)(a) of Directive 2004/38 must, in principle, be continuous.

 

35. As for the question of the extent to which the non-continuous nature of the period of residence during the ten years preceding the decision to expel the person concerned prevents him from enjoying enhanced protection, an overall assessment must be made of that person's situation on each occasion at the precise time when the question of expulsion arises: see the  Tsakouridis case  [2010] ECR I-11979 , paragraph 32.

 

36 In that regard, given that, in principle, periods of imprisonment interrupt the continuity of the period of residence for the purposes of article 28(3)(a) of Directive 2004/38, such periods may - together with the other factors going to make up the entirety of relevant considerations in each individual case - be taken into account by the national authorities responsible for applying article 28(3) of that Directive as part of the overall assessment required for determining whether the integrating links previously forged with the host member state have been broken, and thus for determining whether the enhanced protection provided for in that provision will be granted: see  Tsakouridis case, paragraph 34.

 

37. Lastly, as regards the implications of the fact that the person concerned has resided in the host member state during the ten years prior to imprisonment, it should be borne in mind that, even though - as has been stated in paras 24 and 25 above - the ten year period of residence necessary for the grant of the enhanced protection provided for in article 28(3)(a) of Directive 2004/38 must be calculated by counting back from the date of the decision ordering that person's expulsion, the fact that the calculation carried out under that provision is different from the calculation for the purposes of the grant of the right of permanent residence means that the fact that the person concerned resided in the host member state during the ten years prior to imprisonment may be taken into consideration as part of the overall assessment referred to in para 36 above. [My emboldening.]

 

38. In the light of the foregoing, the answer to [the question] is that article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that a period of imprisonment is, in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host member state for the ten years prior to imprisonment. However, the fact that that person resided in the host member state for the ten years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host member state have been broken. [My emboldening.]

30. Nothing in these passages suggests that the appellant is permitted the automatic level of protection - imperative grounds - by reason of the two periods of imprisonment and the effect that the actual period of imprisonment must have upon the integrative nature of his presence in the United Kingdom. Indeed, it would be a curious result if a person who has recently committed a very serious offence for which he has been sentenced to a long term of imprisonment should be treated in the same way as a person who has lived in the host country with an untarnished private life. That said, nothing can detract from the simple fact that the same individual has grown up in, familiarised himself with, shared in, a community for many years prior to his offending.

 

31. The Court of Justice's decision in MC means that, just because a person cannot claim as of right to benefit from the protection afforded by imperative grounds, a decision maker should overlook the fact that in a period of 10 years preceding his imprisonment he has developed links with the host country which establishes a level of integration commensurate with the length of his stay and the activities that he has lawfully conducted. This is the 'integration test' described by the respondent in the decision letter as emanating from the decision of the Court of Justice in Tsakouridis. To make better sense, the test might also have a comparative element within it so that domestic integration might also be compared with the level of integration the individual retains with the country to which he will be returned.

 

32. In MG (prison-Article 28(3) (a) of Citizens Directive) Portugal [2014] UKUT 392 (IAC), the Upper Tribunal guided by what had been said in the Court of Justice but doubtless baffled by precisely what the Court was saying, distilled the guidance into this passages in paragraph 48:

 

Despite our difficulties, we have concluded that a categorical reading of (1) cannot be what the Court meant or at least that what it must have had in mind was to draw a distinction between a positive taking into account and a negative interruption. If the Court in MG had meant to convey by the terms "cannot be taken into account" that periods of imprisonment automatically disqualify a person from enhanced protection under Article 28(3)(a) protection, it would not have seen fit to proceed in paragraph 35 to accept as a possibility that the "non-continuous" nature of a period of residence did not automatically prevent a person qualifying for enhanced protection. Nor would it have chosen in paragraph 38 to describe periods of imprisonment as "in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided for thereunder..." It would have had to say that, if they fall within the 10 year period counting back from the date of decision, periods of imprisonment always prevent a person qualifying for enhanced protection.  In addition, what the Court goes on to say in paragraph 37 about the implications of the fact that a person has resided in the host Member State during the 10 years prior to imprisonment is clearly intended to underline that even though such a person has had a period of imprisonment during the requisite 10 year period (counting back from the date of decision ordering the expulsion: see paragraph 27) it is still possible for them to qualify for enhanced protection and in this regard their prior period of residence "may be taken into consideration as part of the overall assessment referred to in paragraph 36 above". We also bear in mind, of course, as did Pill LJ in Secretary of State for the Home Department v FV (Italy) [2012] EWCA Civ 1199 at [42] that in Tsakouridis the CJEU Grand Chamber did not consider the fact that Mr Tsakouridis had spent a substantial period of time in custody in Germany in the year prior to the decision to expel him (taken on 9 August 2008) as defeating his eligibility for enhanced protection under Article 28(3)(a).  Nevertheless (and this is where we consider Mr Palmer right and Miss Hirst wrong), the fact that the Court specifies that "in principle" periods of imprisonment interrupt the continuity of residence for the purposes of meeting the 10 year requirement can only mean that so far as establishing  integrative links is concerned such periods must have a negative impact.

33. This passage was what the Court of Appeal had in mind in Warsame v the Secretary of State for the Home Department [2016] WLR(D) 29, in which Longmore LJ decided

 

that there is a "maybe" category of cases under MG (Portugal) where a person has resided in the host state during the ten years prior to imprisonment, depending on an overall assessment of whether integrating links have been broken, and that in such cases it might be relevant to determine, by way of overall assessment, the degree of integration in the host member state or the extent to which links with the original member state have been broken.

 

34. That does not mean he automatically benefits from a specific 'imperative grounds' test from which he is excluded on a proper interpretation of the Directive and the 2006 Regulations. However, he is entitled to have a decision maker have regard to the tangible links that he has with the country where he has spent long periods of time; all the more so where the links he has with the country of origin are tenuous, even ephemeral.

 

35. Hence in this case there is a balance sheet. On the negative side there is criminal offending, 6½ years imprisonment, public interest, risk of re-offending; on the positive side there are the strength of the links with United Kingdom, 21 years spent in United Kingdom, the relative weakness of the links with the country of his nationality (albeit a European country with the comparative advantages that Europe offers over some other parts of the world) and the loss of those elements in the United Kingdom which tend to suggest that his offending may be a thing of the past - his commitment to work, his friendships, his family, his home.

 

36. This is no more than a proper application of proportionality, as I suggested in my decision identifying a error on a point of law. If after throwing all the pros and cons into the air, it is disproportionate to remove him, it is disproportionate. It does not cease to be disproportionate because of an 'imperative grounds' test. The most such a test can do is to remind the decision maker the weight that is to be attached to a particular element. In the same way that Appendix FM and paragraph 276ADE(1) and the criteria mentioned there are never an absolute substitute for proportionality in a human rights case but must always be subject to the refiner's fire of exceptional circumstances or proportionality.

 

The appellant's present circumstances

 

37. There are several elements of the present circumstances upon which I wish to concentrate, although the appellant's evidence is found in two statements and the record of proceedings that I kept. Upon his release, the appellant attended a gym. He was looking for work. He accepted a job at a Virgin gym doing cleaning work. His attitude to work impressed his manager. Consequently, when his manager moved to a gym run by Nuffield Health, the appellant was invited to join his former manager. The appellant is now the supervisor of a team of six cleaners working beneath him. In addition, he is currently pursuing a personal trainer's course at a modest level 2 which may, or may not, have its equivalence in NVQ. Having completed the course, this opens up an opportunity of working in the gym as a trainer rather than as a cleaner. Originally he was paid on a piecemeal basis with a zero hours contract. Now he is on a salary. He has completed (or is about to complete) a lifeguard's course.

 

38. Ms Fijiwala correctly brought to his attention that he was in work when the second offence took place and this did not prevent his offending for a second occasion. He explained that (as the prosecution accepted) that he was facing a threat because of the loss occasioned as a result of his first conviction. He also accepted, as of course he was bound to do, that he should have gone to the authorities to report it.

 

39. The second element which requires attention is that he is currently living with Mr Gamal who has himself been convicted of offences relating to drugs. They were not the same offences for which the appellant himself was convicted. He described Mr Gamal as a friend from childhood who is currently training in construction. The added significance is that the appellant is no longer living at home.

 

40. The third element concerns the evidence about the appellant's links with Portugal. The appellant described how he went to Portugal in 2009 with his father. He described his father as of African descent. On the last occasion he spoke with his father, he was living in the United Kingdom. He described how his father is a Portuguese citizen who went to Portugal at the age of 14 and remained there for some 15 years. The appellant was, of course, born there, but accompanied his father in 1994, when he came to the United Kingdom aged 5. He was subsequently joined by his mother and sister. He has a half sister in Portugal who is in her 30s. She remained in Portugal after her grandmother had died. The rest of the family came to the United Kingdom. When in Portugal in 2009, the appellant was introduced to two aunts, one of whom is now living in Angola and another in Canada.

 

41. Whilst there must be a healthy scepticism about the evidence of this appellant when describing the family members that he has in Portugal, I am satisfied he stayed in Portugal for a period of 2 or 3 months. His relationship with his father is slight. The appellant's mother stated that her second husband suffered from schizophrenia. She said that when the appellant was in Portugal for the first 5 years of his life, he spoke Portuguese. Thereafter, however, I accept both his evidence and that of his mother that in order to progress their chances in the United Kingdom, they spoke English. She hired a private English tutor for him.

 

42. The appellant's mother gave evidence that she returned to Portugal last Christmas. She did so in order to visit her parents' grave. She had been to university there and had stayed with a university friend. She was unable to stay with her daughter from her first marriage since she was living with her father, the mother's first husband. She described how she was not able to afford to return to Portugal for the first 11 years spent in the United Kingdom.

 

43. The appellant's mother spoke of her son's childhood. It was apparent that she did not exercise adequate control over him and she acknowledged that he needed more supervision. I place little weight on her ability to control or influence the appellant if he is minded to misbehave. She is however well-intentioned and was at something of a loss to know how it all went so badly wrong. Although their evidence must be approached with considerable caution, she spoke of her son's attitude being different now that he was trying to progress; that he had commenced a professional fitness course and that others were paying for him to progress. She described how he does not live far away.

 

44. I raised with her that she had a strong Portuguese accent which she somewhat ruefully acknowledged she was unable to change. She described how she had spent two thirds of her life in Portugal. At St Bartholomew's Hospital where she works in the cancer unit as a nurse, she describes how she is known as a Portuguese speaker amongst her colleagues. She is not linked to a Portuguese diaspora in the United Kingdom. She does, however, speak to patients in Portuguese if they find it difficult to speak English. She has one work colleague who is Portuguese with whom she speaks in Portuguese.

 

45. Finally, the appellant's girlfriend gave evidence. She described how she had known the appellant since 2006 when she was 16, some 10 years ago. It had not been a constant relationship. In particular, she did not know the appellant was in prison and, although she texted him, he did not respond. After his recent release in April or May 2015 she contacted him. She is a British citizen. They do not live together although she told me he stays with her for a few days at a time. She is working with young people as a youth worker. Her charges are aged between 18 and 25. Some are in care. Her role is to assist them in finding jobs and resolving family problems.

Analysis

 

46. At the heart of this appeal are the appellant's two convictions in 2010 and 2013. He must have spent at least 3 years of the 10 years preceding the decision in prison. The appellant is not entitled to benefit from the level of protection set at 'imperative grounds'. For the reasons I have given, this does not mean that his immigration history is not to be fully considered in the assessment.

 

47. The appellant has a permanent right of residence and this enables him to benefit from a level of protection such as to require serious grounds of public policy before he ought be removed.

 

48. If the appellant commits further offences involving the possession of Class A drugs with intent to supply them to vulnerable members of the public, this will be highly damaging to society. It amply satisfies the classification of 'serious grounds'. Furthermore, the community wishes to rid itself of the scourge of drugs. Although I do not see it as applicable here, I consider that the removal of drug dealers is a goal that society properly sees as imperative. I would wish to say nothing that marginalises either its seriousness, or the damage it inflicts, or the weight that society attaches to the removal of those involved.

 

49. The primary assessment that I need to make relates to the risks that is faced by the community as a result of the appellant's past offending. This is, of course, in the context of an assessment is as to whether the appellant's personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society within the meaning of reg. 21.

 

50. There are a number of matters which have caused me concern. First, notwithstanding the first deportation proceedings and, one might say, the good fortune of his first successful appeal, the appellant reoffended. I am, however, prepared to accept that the second offence was the result of coercion in order to make good the losses that had been experienced by the drug gang with which he was associated and which were occasioned by his first arrest. The second offence was committed notwithstanding the warning that had been given to him.

 

 

 

 

51. Secondly, I am concerned that he continues to share accommodation with a convicted drugs user or dealer.

52. Thirdly, although I have no doubt about the genuineness of his relationship with his girlfriend and the concern expressed by his mother, I do not see them as capable of exercising effective control over his behaviour if he decides to override their wishes for his future. The only person who is in effective control of the appellant's conduct is the appellant himself.

 

53. Whilst I take all of these misgivings into account, I was impressed by the evidence as a whole notwithstanding my very severe misgivings, trenchantly expressed in my original decision to find an error of law. I formed a strong view that, however belatedly, the appellant has finally seen the advantages of work and study as the means of improving himself. I avoid the use of rose-tinted spectacles and am conscious of the ease by which a decision maker can be beguiled by promises that an individual has turned the corner. Nevertheless, I have concluded that the appellant is now showing a maturity that is in marked contrast with his former conduct as a tear-away and drug dealer.

 

54. Whether this is seen as a question of rehabilitation or risk of re-offending, it is now the case that the appellant is in salaried employment with a future which is worth effort to achieve. He struck me as motivated and engaged with pursuing a career. The question of his rehabilitation is material to the proportionality of his deportation as Essa v Secretary of State for the Home Department (EEA: rehabilitation/integration) Netherlands [2013] UKUT 316 (IAC) makes clear. As the appellant's skeleton argument suggests, it echoes what Carnwath LJ said in Batista [2010] EWCA Civ 896):

 

Even in respect of those deemed sufficiently dangerous to justify deportation under the EEA rules, common sense would suggest a degree of shared interest between the EEA countries in helping progress towards a better form of life. The prospects offered by the relationship with Miss Deane in this country may have been fragile, as the tribunal thought, but in Portugal they would be practically non-existent. Although he has siblings in that country, there seems to have been no evidence that they would be able or willing to offer the support needed to prevent what the tribunal saw as his likely drift back to crime. There may be room for argument as to the relevance of such points under the Directive, but as at present advised I see no reason in principle why they may not be taken into account in the overall balance of proportionality. It will be a matter for tribunal to consider whether they have any materiality in the present case .

 

55.   In my judgment they are material to the outcome of this case. It had been found by the Tribunal in 2012 that the appellant had no more than tenuous links with Portugal. Having heard the evidence, I agree with that finding. However much the Tribunal would wish to place reliance upon the presence of a half-sister in Portugal who is living with the first husband of this appellant's mother, it strikes me as evident that the appellant has only a fragile relationship with her, having left the home some 21 years before. There is no evidence that the appellant has any relationship with his mother's first husband. His mother's own evidence was that she had not visited Portugal for the first 11 years after her arrival in 1994 but has made periodic visits but not to visit her daughter although she has seen her. Accordingly, the presence of family members in Portugal (if that rightly describes the relationship) does not operate as a significant reason for diminishing the effect of removal from the UK.

 

56.   Even if there were no relatives at all, there are no physical obstacles to the appellant being removed to Portugal. Even if he does not speak Portuguese, save in a very rudimentary form, he will be able to acquire the language were he to be removed. Portugal is a civilised European country where a resourceful young man would be able to start life afresh and find accommodation but the risk of failure is certainly greater than the risk of failure here, given the start that he has made in that direction. However, it is not principally the ability to relocate in Portugal that operates as a determining factor; rather it is the proportionality of removing the appellant there, given his presence in the United Kingdom for the past 21 years since he was five years old.

 

57. The consideration that has most influenced me is what in other contexts might be termed 'the green shoots of recovery'. It is not altogether inapt an expression when one considers the descent into criminality that has blighted this appellant's life in the past. There is no evidence that he is now involved with the criminal elements with whom he previously resorted. Instead, his life is remarkably ordinary. The routine of a job; the responsibility of looking after a team of fellow workers; the respect which I feel he has earned from the person who engineered his present job; a regular salary; efforts to achieve a qualification; a goal of self-improvement. There is a genuine interest in preserving these elements and, even if Britain breaks away from Europe, society as whole is worse off if, without these positive influences, the appellant drifts back into crime.

 

58. It would be wrong on my part to classify the appellant as being of no risk, although if he continues on his present trajectory he is not likely to re-offend. I would not, at present, classify the risk as serious. The problem, however, is if anything occurs to deflect the appellant from this path; the loss of his job or isolation from the influence of his friends and family, limited as it may be. For all the reservations I have, I am very reluctant indeed to derail the appellant from his present path.

 

59. There are almost non-existent links that the appellant has with Portugal. His removal there is bound to be a destabilising influence and, given the untested nature of process by which he is acquiring maturity, I am not satisfied the public interest is served by his removal or that it would be proportionate to remove him. Thus, on balance, I have concluded that it is disproportionate to remove him.

 

60. Whilst there is the inevitable risk that I have been misled, there will be no concealing the fact that I have been if there is further offending. Were this to occur, the arguments about integration, risk to the community and rehabilitation will have proved groundless. I will have been proved wrong and the appellant's own further misconduct will be the proof of it. I would not then expect a Tribunal to reach the same conclusion as I have. That event is, however, firmly in the appellant's own hands and he must know it.

 

 

 

 

 

 

ANDREW JORDAN

UPPER TRIBUNAL JUDGE

2 April 2016