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United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments
You are here: BAILII >> Databases >> United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments >> DA004892018 [2020] UKAITUR DA004892018 (15 June 2020)
URL: http://www.bailii.org/uk/cases/UKAITUR/2020/DA004892018.html
Cite as: [2020] UKAITUR DA4892018, [2020] UKAITUR DA004892018
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Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00489/2018
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 3 February 2020 |
On 15 June 2020 |
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Before
UPPER TRIBUNAL JUDGE FINCH
Between
M J
Appellant
-and-
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation :
For the Appellant: Mr. T. Bahja of counsel, instructed by Duncan Lewis Solicitors
For the Respondent: Ms A. Everett, Home Office Presenting Officer
DECISION AND REASONS
BACKGROUND TO THE APPEAL
1. The Appellant is a national of Poland. He arrived in the United Kingdom with this mother in 2004 and he was enrolled in school here in November 2004.
2. Between 22 January 2007 and 29 March 2018, the Appellant was cautioned or convicted on numerous occasions. On 5 April 2018 he had been served with a notice informing him that he was liable to deportation under the Immigration (European Economic Area) Regulations 2016. On 20 June 2018 he was served with a decision to make a deportation order and his appeal was certified under regulation 33 of the 2016 Regulations. The Appellant was deported from the United Kingdom on 31 August 2018.
3. Meanwhile, the Appellant had lodged an appeal against the decision to deport him on 26 July 2018. Time to appeal was subsequently extended on 16 August 2018. First-tier Tribunal Judge Sullivan allowed his appeal in a decision promulgated 21 August 2019. The Respondent appealed against her decision on 4 September 2019 and First-tier Tribunal Judge Saffer granted her permission to appeal on 13 September 2019.
4. In a decision, promulgated on 6 December 2019, His Honour Judge Bird and Upper Tribunal Judge Plimmer found that First-tier Tribunal Judge Sullivan had made errors of law in her decision. They also retained the Appellant's appeal against the decision to deport in the Upper Tribunal. When doing so, they preserved a number of findings of fact made by First-tier Tribunal Judge Sullivan, which are referred to below.
RESUMED HEARING
5. In compliance with the directions made by Upper Tribunal Judge Plimmer, the Appellant's solicitors filed and served a consolidated appeal bundle on 24 December 2019. They then filed and served a skeleton argument and a witness statement by the Appellant's mother on 20 January 2020. The Respondent filed and served her skeleton argument on 29 January 2020. I extend time for the latter skeleton argument, as the Appellant's Bundle and skeleton argument had not been sent directly to the appropriate Home Office Presenting Officers' Unit.
6. Counsel for the Appellant called the Appellant's mother and she adopted her witness statement, but she was not asked any questions arising from it. Both counsel for the Appellant and the Home Office Presenting Officer made oral submissions and I have taken these into account then reaching my decision below.
7. On 4 February 2020, the Appellant's legal representatives submitted an addendum skeleton argument. As the Respondent had not had the opportunity to consider the contents of this addendum skeleton argument at the hearing, I indicated that I would only consider the skeleton argument if it were possible to reconvene the hearing. The Appellant's solicitors replied by email on 18 February 2020, stating that they would instruct counsel to attend any resumed hearing and that they were liaising with the Home Office Presenting Officer.
8. The Appellant's solicitors did not inform the Upper Tribunal of the outcome of any discussion with the Home Office Presenting Office and in addition, it became obvious that the current pandemic was going to prevent the listing of any resumed hearing at Field House in the foreseeable future. Therefore, I made further directions on 20 March 2020. As the Appellant's legal representatives had not informed me of the result of any discussions with the Home Office Presenting Officer, I directed that the matter would proceed on the papers and gave the Respondent the opportunity to respond to the Appellant's addendum skeleton argument.
9. I have not had a response from the Respondent, but I did have the benefit of the skeleton argument on which she previously relied, which was filed on 29 January 2020. In addition, having considered the content of the addendum skeleton argument, I did not consider that I needed the assistance of the Secretary of State for the Home Department before completing my decision.
DECISION
10. The Appellant is appealing against the decision by the Respondent to deport him to Poland under Regulation 23(6) of the Immigration (European Economic Area) Regulations 2016 ("the 2016 Regulations"), on the basis that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 27of the 2016 Regulations.
11. Regulation 27 of the 2016 Regulations states:
" (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 respective 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...
(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.
...
(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc. ).
12. Schedule 1 states that:
"28. Paragraph 7 of Schedule 1 states that the fundamental interests of society include:
...
(b) maintaining public order
(c) preventing social harm;
(f) excluding or removing an EEA...family member with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action;
(g) tackling offences likely to cause harm to society where an immediate or direction victim may be difficult to identify but where there is wider societal harm (such as offences related to the misuse of drugs...
...
(j) protecting the public;
..."
13. Counsel for the Appellant submitted that the Appellant had acquired a permanent right of residence and that, therefore, his deportation could only be justified if the Respondent could show that there were serious grounds of public policy and/or public security to support such a decision.
14. Both parties agreed that Regulation 15 of the 2016 Regulations indicates that:
"(1) The following persons acquire the right to reside in the United Kingdom permanently-
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;"
15. One of the findings preserved by the Upper Tribunal in its error of law decision, dated 28 November 2019, was that the Appellant's mother's P60s confirmed that she was employed as a worker in the United Kingdom between 1 April 2005 and 31 March 2010 and that she had, therefore, acquired permanent residence in the United Kingdom.
16. On 31 March 2010, the Appellant was 19 years old, but he continued to be a member of his mother's family as Regulation 7 of the EEA Regulations 2016 states that:
"(1)...for the purposes of these Regulations the following persons shall be treated as the family member of another person-
(b) direct descendants of his...who are under 21".
17. Therefore, the parties agreed that on 31 March 2010 he would have potentially acquired permanent residence as her direct descendant. As a consequence, it was not necessary for the Appellant to rely on any period for which he may have been in education in the United Kingdom.
18. However, Regulation 3 of the 2016 Regulations also states that:
"(1) This regulation applies for the purpose of calculating periods of continuous residence in the United Kingdom under regulation 5(1) and regulation 15"
...
(3) Continuity of residence is broken when-
(a) a person serves a sentence of imprisonment".
19. Paragraph 7.13 of the Explanatory Memorandum to the 2016 Regulations explains that Regulation 3 gives effect to the CJEU judgment in Onuekwere v Secretary of State for the Home Department Case C-378/12 where it was held that:
"Article 16(2) and (3) of Directive 2004/38 must be interpreted as meaning that the continuity of residence is interrupted by periods of imprisonment in the host Member State of a third-country national who is the family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods".
20. The Appellant was sentenced to one day's detention in the courthouse on 30 December 2009, after being convicted for shoplifting, and also on 13 January 2010, after being convicted of theft.
21. Counsel for the Appellant submitted that a period of detention in a courthouse does not amount to imprisonment for the purposes of Regulation 3(3) of the 2016 Regulations. He relied on Section 97(2) of the Powers of Criminal Courts (Sentencing) Act 2000. However, this section specifically refers to a court's powers to sentence a person under 21 to a period of time in a young offender institution and states that "a court shall not pass a sentence for an offender's detention in a young offender institution for less than 21 days". The section does not prohibit a court from sentence a young offender to one day's detention in a courthouse.
22. Counsel also relied on the case of Regina v Faith Jones Alli [2017] EWCA Crim 589 but this case went no further than to confirm that it was unlawful to sentence an offender to a period of imprisonment in a young offender institution of less than 21 days. It did not address detention in any other location.
23. Counsel for the Appellant also relied on Section 76(2) of the same Act which is entitled the "Meaning of a custodial sentence". It states that:
"(1) In this Act a "custodial sentence" means
(a) a sentence of imprisonment
...
...
(d) a sentence of detention in a Young Offenders Institution
(2) In subsection (1) above "sentence of imprisonment" does not include a committal for contempt or any kindred offence".
24. The wording of this section indicates that the Act treated sentences of imprisonment and sentences of detention in a Young Offender Institution as separate forms of "custodial sentence" and therefore any requirement to limit detention in a young offender institution to at least 21 days could not be read over to any other form of "custodial sentence".
25. Counsel for the Appellant also submitted that one day's detention in a courthouse was a kindred offence to that of contempt of court for the purposes of Section 76(2). However, he was not able to provide any case or statutory law to show that this was the correct interpretation of this sub-section. In his addendum skeleton argument, the Appellant's representative sought to rely on the wording of section 135 of the Magistrates Court Act 1980. However, the fact that the section refers to such a court having the power to "commit" to prison convicted of an offence, does not attract from the fact that such a person would be being imprisoned for a criminal offence not being committed for a contempt of court.
26. In any event, I have taken into account that the plain and ordinary meaning of a "contempt of court" it that is occurs when a person deliberately fails to obey or respect the authority of a court of law. The PNC shows quite clearly that the Appellant was not detained for any similar act such as breaching a court order but had been sentenced for shoplifting and then theft.
27. As the Home Office Presenting Officer noted it was also the case that the Appellant had not sought to challenge either of these convictions on the basis that they had been unlawfully made and I am not able to go behind the decision of another court.
28. In addition, although the facts leading to the Court of Appeal's decision in Viscu v Secretary of State for the Home Department (AIRE Centre intervening) [2019] EWCA Civ concerned someone who had been sentenced to a period detention in a Young Offender Institution, it confirmed a wider principle of law. In particular, at paragraph 45 of the judgment of Lord Justice Flaux, as confirmed in the headnote, the Court found that "in general, a "custodial sentence" was indicative of a rejection of societal values and a severing of integrative links so as to interrupt the required continuity of residence...it was the seriousness of the offending, rather than the sentence itself, which indicated a rejection of societal values".
29. In the current case the Appellant may have only been sentenced to one day's detention on the two occasions relied upon, but his detention was a recognition of that his criminal behaviour indicated that he did not respect the laws accepted by the wider society around him.
30. As a consequence, of all of the above findings, I find that the two periods of detention did break the continuity of the Appellant's residence in the United Kingdom.
31. Counsel for the Appellant also relied on the fact that the Appellant he had lived in the United Kingdom for more than 10 years, starting school here in 2004 and being deported on 31 August 2018. However, in paragraph 12 of Terzaghi v Secretary of State for the Home Department [2019] EWCA Civ 2017, Lord Justice Dingemans held that:
"The following propositions were common ground before us: (1) the 10 year period referred to in regulation 21(4) is counted back from the date of the decision to deport, see MG (Portugal) at paragraph 24, Warsame at paragraph 10 and FV(Italy) at paragraph 65; (2) the 10 year period has to be a continuous of residence in the United Kingdom, ....(3) periods of imprisonment will, in principle, interrupt the continuity of residence...This is because the imposition of a prison sentence showed non-compliance with the values expressed by the society of the host member state in its criminal law..."
32. The decision to deport the Appellant from the United Kingdom was made on 20 June 2018 and, therefore, the relevant period of time was between 20 June 2008 and 20 June 2018. The Appellant was sentenced to one day's detention on 30 December 2009, one day's detention on 13 January 2014, one day's on 27 May 2011, one days detention on 21 January 2014, 14 days concurrent and 7 days consecutive imprisonment on 21 June 2016, 21 days imprisonment on 8 November 2016 and 21 days imprisonment on 29 March 2018. Therefore, there were clearly periods of imprisonment which interrupted the continuity of his residence.
33. Regulation 3(4) of the 2016 Regulations does also state that:
"Paragraph (3)(a) applies, in principle, to an EEA national who has resided in the United Kingdom for at least ten years, but it does not apply where the Secretary of State considers that-
(a) prior to serving a sentence of imprisonment, the EEA national had forged integrating links with the United Kingdom;
(b) the effect of the sentence was not such as to break those integrative links, and
(c) taking into account an overall assessment of the EEA national's situation, it would not be appropriate to apply paragraph (3)(a) to the assessment of that EEA national's continuity of residence"
34. Counsel for the Appellant relied on FV (Italy) v Secretary of State for the Home Department, B v Land Baden- Wurttemberg [2019] QB 126. But, in paragraph 70 of that judgement, the Court found that ,even if there were relevant periods of imprisonment, it was necessary to determine whether those periods of imprisonment had broken the integrative links previously forged with the host member state. It was also held that "this assessment should be carried out at the precise time when the question of expulsion arises".
35. The Appellant had arrived in the United Kingdom, as a child and had studied here at school and then college. His parents had also been living here at that time. However, when considering the integrative links which he had forged by the time of the decision to deport him from the United Kingdom, I am bound by the fact that in the error of law hearing, the Upper Tribunal preserved a significant number of findings made by First-tier Tribunal Judge Sullivan, which were that:
(1) The Appellant was a persistent offended who committed all of the offences listed in the PNC printout prepared on 13 July 2019 and his offences have involved drugs, dishonesty, destruction and violence.
(2) In addition, he has repeatedly failed to abide by conditions imposed on him during sentencing and also repeatedly failed to attend when required to do so. He also continued offending despite the imposition of drug rehabilitation requirements and continued to offend despite the experience of custodial sentences.
(3) The period during which he was at liberty after serving the 21-day prison sentence imposed on him on 29 March 2018 does not of itself show that he will not re-offend in the future.
(4) The Appellant has a long history of drug dependence, including reliance on cannabis, amphetamines, cocaine and ecstasy.
(5) The fact that he followed a methadone programme in detention does not indicate that he is no longer drug dependent because he had previously relapsed after long periods of abstinence and has returned to a chaotic style of living in Poland.
(6) The Appellant will continue to require professional support as a drug addict and also medical treatment for mental ill-health.
(7) Even when undergoing treatment, as in 2015, his risk of substance abuse remained medium to high.
(8) The Appellant has suffered from paranoid schizophrenia, mental and physical disorders attributable to multiple drug use and has a history of non-compliance with medication and other treatment.
(9) The criminal justice and mental health services have made multiple interventions in an attempt to assist him, but he has been uncooperative and unresponsive.
(10) There was no evidence to show that he had been let down by social services or his school.
36. I have also reminded myself that in paragraph 48 of MG (prison - Article 28(3)(a) of Citizens Directive) Portugal [2014] UKUT 393 the Upper Tribunal held that:
"...the fact that the Court specifies that "in principle" periods of imprisonment interrupt the continuity of residence for the purpose of meeting the 10 year requirement can only mean that as far as establishing integrative links is concerned such periods must have a negative impact".
37. In the light of the periods of imprisonment served by the Appellant and the preserved findings of fact, referred to above, and applying a balance of probabilities the Appellant has not shown that he has integrated into the community in the United Kingdom or that he shares the values identified by its laws and its public services. As a consequence, I find that he has not accrued a continuous period of ten years residence in the United Kingdom for the purposes of Regulation 27 of the EEA Regulations 2016. Therefore, when reaching a decision to deport the Appellant the Respondent did not have to show that there were imperative grounds of public security to justify his deportation.
38. As a consequence, the test which the Respondent had to apply when deciding to deport the Appellant was the lower one reflected in Regulation 27 of simply whether there were grounds of public policy, public security or public health. It is not contended by the Appellant that the decision to deport him was taken unlawfully in order to serve economic ends, in breach of Regulation 27(2) of the 2016 Regulations. The Respondent reminded herself of this test in Regulation 27(5) in paragraph 33 of her decision and it is clear that the decision to deport was taken in the light of the Appellant's criminality. The fact that many of the offences that he committed were drug related or involved violence or dishonesty confirmed that he represented a genuine and present and sufficiently serious threat to public order and the maintenance of the laws of the country in which he was living.
39. The fact that the Appellant suffered from mental illness and was dependent on drugs were factors which had to be balanced against his criminality in the overall proportionality exercise. However, the evidence indicates that a significant number of agencies including the courts, social services and the NHS had tried to engage with the Appellant to tackle the difficulties he faced but that he had consistently failed to engage with them or had initially engaged and then relapsed.
40. I have taken into account the age at which the Appellant arrived in the United Kingdom and the length of time during which the Appellant was previously resident in the United Kingdom but there was no evidence that, once he left college, the Appellant had entered employment in the United Kingdom or sought help in order to do so. There was also no evidence of any other links with the community he may have formed whilst living here.
41. Counsel for the Appellant relied on the strong bond which existed between the Appellant and his mother who was still living in the United Kingdom. However, apart from her witness statement and her presence at the resumed hearing, there was little detail about this bond. I remained unclear whether the Appellant had lived with her or his father during his childhood or what contact they had had since the date of her witness statement, which was 28 July 2018.
42. I have also taken into account the fact, whilst the Appellant was living and offending in the United Kingdom, he was suffering from paranoid schizophrenia, which was exacerbated by substance abuse. The evidence indicates that he was offered treatment in relation to his drug dependence and his mental ill health on a number of occasions but that these interventions were largely unsuccessful.
44. The nature of each of his individual offences may not have been very serious but the consistency of his offending, which involved violence and the misuse of drugs, and his refusal to engage with programmes to assist him were relevant features.
45 I accept that, as found in Arranz (EEA Regulations - deportation - test) Spain [2017] UKUT 294 (IAC), "the burden of proving that a person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society under Regulation 21(5)(c ) of the EEA Regulations rests on the Secretary of State. However, on the basis of my findings above, I am of the opinion that she has done so. I also find, for the same reasons, that the Appellant had failed to integrate into the community here.
46. In his addendum skeleton argument, the Appellant also sought to rely on his presence here for five years between 8 November 2004 and 7 November 2009. However, the evidence indicated that the Appellant's mother only started to exercise a treaty right as a worker on 6 April 2005 and there was insufficient evidence to show that the Appellant was exercising his own Treaty rights between 8 November 2004 and 6 April 2005. In addition, there was no evidence to confirm that his mother was a job-seeker between 8 November 2004 and 6 April 2005 or that the Appellant could rely on Baumbast v Secretary of State for the Home Department [2003] ICR 1347 at that time.
47. For all of these reasons, I find that there were no errors of law in the Respondent's decision to deport the Appellant from the United Kingdom.
DECISION
(1) The Appellant's appeal is dismissed.
Nadine Finch
Signed Date 3 June 2020
Upper Tribunal Judge Finch