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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI- 2024-004988 |
|
First-tier Tribunal No: DA/00025/2023 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 6 May 2025
Before
UPPER TRIBUNAL JUDGE MANDALIA
Between
RMVYDAS JANCKULATIS
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation
For the Appellant: Mr N Garrod, instructed by Liberty & Co Solicitors
For the Respondent: Mr N Wain, Senior Home Office Presenting Officer
Heard at Field House on 6 January 2025
Decision and Reasons
Introduction
1. The appellant is a national of Lithuania. His appeal against a decision made by the respondent on 24 April 2023 to refuse to revoke a deportation order made against him on 24 November 2015 was dismissed by First-tier Tribunal Judge Cary ("the judge") for reasons set out in a decision promulgated on 24 September 2024. The appellant claims the decision of the judge is vitiated by material errors of law. Five grounds of appeal were relied upon.
2. In summary the appellant claimed:
(i) The judge erred in law in finding that the consequences of the appellant's removal from the UK will not be unduly harsh on the appellant's partner and child; ( Ground 1)
(ii) The judge accepted the appellant has a genuine and subsisting relationship with his partner and child, but concluded that was not enough for the full weight of Article 8(1) to be considered; ( Ground 2)
(iii) The judge erred in law by failing to appreciate and address the appellant's claim regarding the deportation order made against the appellant. The appellant had initially been sentenced to an 18 month term of imprisonment, but on appeal, the sentence was reduced to one of 8 months. The appellant is not a persistent offender, his offending did not cause serious harm, and he is not a foreign criminal; ( Ground 3)
(iv) The judge erred in paragraph [43] of the decision when he said the appellant did not provide evidence of his private life in support of his case. The appellant had confirmed that he had people who were willing to provide evidence in support of his case but was informed by his legal representative that that would not be necessary; ( Ground 4)
(v) The judge erred in law in concluding that the appellant will be able to reintegrate or establish a private life in Lithuania with little difficulty; ( Ground 5)
3. Permission to appeal was granted by First-tier Tribunal Judge Parkes on 16 October 2024. He said:
"The Appellant had re-entered the UK illegally in breach of his deportation order and returned regularly to Lithuania, in the circumstances the life created in the UK when here illegally would attract significantly less weight and it cannot be argued he would struggle to reintegrate to the country he goes to regularly. The only ground that is arguable is that he might not be a foreign criminal given that his sentence was reduced to less than 12 months on appeal. On that ground alone permission to appeal is granted. Permission to appeal is refused on all other grounds."
The Hearing of the Appeal Before Me
4. Mr Garrod submits the underlying Deportation Order was made under the Immigration (European Economic Area) Regulations 2016 and Immigration Act 1971 on 24 November 2015. Although a copy of the Deportation Order is in the respondent's decision, a copy of the decision made by the respondent, on 24 November 2015, to deport the appellant setting out the reasons for that decision were not before the FtT. The respondent's reasons for making that decision, are therefore unknown. It is however clear that the respondent's decision was not challenged by the appellant and he was deported to Lithuania on 10 December 2015.
5. Mr Garrod submits the judge has now found, correctly based upon the fact that the appellant's sentence was reduced on appeal to one of eight months, that the appellant is not a 'foreign criminal' as defined in s117D of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") and, as set out in the grounds of appeal, the judge failed to have regard to the fact that the justification for making the deportation order had fallen away. The judge found, at [34], that the respondent has not established the appellant is a 'persistent offender'. The judge found, at [36], that the 2015 offences cannot be said to have caused serious harm, and that as the appellant has never received a prison sentence of at least 12 months, he is not a 'foreign criminal'.
6. Mr Garrod submits the issue before the FtT was whether the deportation order should be revoked, considered in light of the findings made as to whether the appellant is a 'foreign criminal'. The judge referred to paragraph 390 of the immigration rules at paragraph [25] of the decision and set out the four relevant factors when considering the revocation of a deportation order. The judge referred to factors relevant to the public interest as set out in s117B and s117C of the 2002 Act but in reaching the decision, did not have regard to the finding made that the appellant is not a 'foreign criminal'. Mr Garrod submits that here, where the appellant is not a foreign criminal, the public interest in the maintenance of immigration control is not undermined because the appellant had been deported improperly. The fact that the appellant is not in fact a 'foreign criminal' changes everything. Regulation 34 of the 2016 Regulations expressly provides that a person may apply to the respondent to have the deportation order revoked on the basis that there has been a material change in circumstances. Mr Garrod submits the appellant was never a foreign criminal and should never have been deported. That should therefore have weighed very heavily in favour of the appellant but the judge did not have proper regard to that as a relevant factor. Mr Garrod submits the judge did not properly assess the appellant's claim in context.
7. In reply, Mr Wain submits the respondent does not challenge the decision of the judge that the appellant is not a foreign criminal for the purposes of the Article 8 claim. The judge considered the appellant's Article 8 claim in that context. Mr Wain submits that in Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 350 (IAC) the Upper Tribunal said the FtT is not deciding an appeal against the decision to make a deportation order and/or the decision that removal of the individual is, in the Secretary of State's view, conducive to the public good. The FtT is concerned only with whether removal etc in consequence of the refusal of the human rights claim is contrary to section 6 of the Human Rights Act 1998. If Article 8(1) is engaged, the answer to that question requires a finding on whether removal etc would be a disproportionate interference with Article 8 rights. The judge could not have considered the merits of the original decision to deport the appellant in 2015 and the judge was right therefore, Mr Wain submits, not to consider the background to the original deportation order. Mr Wain submits the judge considered whether the decision to refuse to revoke the deportation is in breach of the appellant's Article 8 rights and the issue for the judge was whether the decision was proportionate. Mr Wain submits the judge considered the relevant public interest considerations set out in s117B of the 2002 Act and did so, recognising that the appellant is not a foreign criminal. The judge clearly took that into account as a relevant factor in reaching the decision. The judge noted the appellant re-entered the UK in breach of the deportation order and reached a decision that was open to him. Mr Wain submits there is no material error of law in the decision of the FtT .
Decision
8. It is common ground between the parties that the only ground upon which permission to appeal has been granted concerns the judge's assessment of the appeal in circumstances where the appellant is found not be to a 'foreign criminal'.
9. The appeal before the FtT arose from the respondent's decision dated 24 April 2023 to revoke the deportation order previously made. In addition to considering the position under EU law and the 2016 EEA Regulations, the respondent considered, separately, whether maintaining the appellant's deportation would be in breach of the appellant's Article 8 rights. It is uncontroversial, as the judge said at paragraph [23] of the decision, that the appellant could not appeal under the 2016 Regulations from within the United Kingdom, but was still entitled to appeal on human rights grounds.
10. In Wilson (NIAA Part 5A; deportation decisions) the Upper Tribunal said:
"(1) In a human rights appeal, the decision under appeal is the refusal by the Secretary of State of a human rights claim; that is to say, the refusal of a claim, defined by section 113(1) of the Nationality, Immigration and Asylum Act 2002, that removal from the United Kingdom or a requirement to leave it would be unlawful under section 6 of the 1998 Act. The First-tier Tribunal is, therefore, not deciding an appeal against the decision to make a deportation order and/or the decision that removal of the individual is, in the Secretary of State's view, conducive to the public good. It is concerned only with whether removal etc in consequence of the refusal of the human rights claim is contrary to section 6 of the Human Rights Act 1998. If Article 8(1) is engaged, the answer to that question requires a finding on whether removal etc would be a disproportionate interference with Article 8 rights.
(2) The Secretary of State's decisions under the Immigration Act 1971 that P's deportation would be conducive to the public good and that a deportation order should be made in respect of P would have to be unlawful on public law grounds before that anterior aspect of the decision-making process could inform the conclusion to be reached by the First-tier Tribunal in a human rights appeal."
11. The appellant's immigration history is set out in the respondent's decision dated 24 April 2023. The decision refers to the appellant having two convictions:
i) On 9 October 2008 the appellant was convicted at Kingston-Upon Thames Magistrates Court of Burglary and Theft-Dwelling. He was sentenced to 6 months imprisonment.
ii) On 8 October 2015 the appellant was convicted at Kingston-Upon Thames Crown Court, of going equipped for theft, for which he was sentenced to 18 months' imprisonment. He appealed against the sentence. On 20 November 2015, the sentence was reduced to 8 months' imprisonment.
12. On 24 November 2015 a decision was made to deport the appellant and a Deportation Order was signed. A copy of the deportation order was in the respondent's bundle that was before the FtT. Neither the appellant nor the respondent provided by FtT with a copy of the respondent's decision of 24 November 2015 explaining the reasons for the decision. It is however uncontroversial that the appellant did not challenge that decision.
13. There will clearly be cases, as the Tribunal recognised in Wilson, where a Court or Tribunal finds that a decision to make a deportation order was unlawful on public law grounds. However that is not the case here. The appellant did not challenge the decision made in 2015 at the time, but more importantly, the judge could not have found the decision to be unlawful on public law grounds if the decision was not even before the Tribunal. I accept the judge found the appellant is not a "foreign criminal" for the purposes of his Article 8 claim. However, when one looks at the judge's decision, that is not to say the judge found the previous decision to make a deportation order was unlawful. The decision to deport the appellant was plainly made under the relevant Immigration (European Economic Area) Regulations in force at the time.
14. Mr Garrod submits the respondent's decision in November 2015 was reached on the basis that the appellant was considered to be a persistent offender. Absent the decision, I cannot be satisfied that that is correct. The respondent is likely to have decided to deport the appellant in 2015 taking into account his convictions and on the grounds of public policy. However, even if Mr Garrod is correct, that does not assist the appellant.
15. The judge's finding that the appellant is not a "foreign criminal" for the purposes of his Article 8 claim involved different considerations. It is true that the judge found the appellant is not a 'persistent offender', but the judge was considering the position as it is now, rather than the position as it was in 2015. That is abundantly clear from what is said by the judge in paragraphs [31] to [34] of the decision. The judge started by noting "the appellant maintains that he is not a persistent offender.". He goes on to say "in assessing whether he is (my emphasis - present tense rather than 'was')... A "persistent offender" is not a permanent status that can never be lost once it is acquired, but an individual can be regarded as a "persistent offender" even though he may not have offended for some time... ", making it clear that he is assessing the position as it is now, rather than what the position may have been in 2015. If there were any doubt, one only has to turn to what the judge said at paragraph [34]:
"34. The Appellant is perhaps fortunate not to have faced prosecution for breach of the immigration laws of this country in view of his cavalier treatment of the deportation order...... There is no evidence that the Appellant has troubled the police or the criminal courts since 2015 and although I cannot be certain that he has learnt his lesson I cannot see that the Respondent can establish that he is a persistent offender."
16. The judge quite properly therefore addressed the appellant's appeal on Article 8 grounds at paragraphs [37] to [52] of the decision. The judge started his consideration by saying:
"As the Appellant is not a foreign criminal at the date of the hearing I am not required to apply sll7C and the Exceptions set out there. I still have to apply sll7B as Article 8 is engaged. The Appellant has established some form of private life in the United Kingdom as he has lived here from 2007 apart from short breaks spent in Lithuania following his deportation. He also has a family life here with his wife and child. The maintenance of the decision to deport has consequences of such gravity as to potentially engage the operation of Article 8 in that it will disrupt his private and family life. The decision is clearly in accordance with the law. I therefore have to decide if the decision is proportionate."
17. Having found that the appellant cannot now be described as a 'foreign criminal' the judge's approach to the assessment of the Article 8 cannot be criticised.
18. The judge noted, at [5], the appellant accepted in cross-examination that "he had told lies in his statement" claiming he was living in Lithuania when he was actually living in the UK at the time. He accepted that having been deported, her immediately returned to the UK.
19. The judge referred to the appellant's conduct following his deportation in paragraph [20] of the decision: "..The Appellant originally claimed to have only returned to the United Kingdom in June 2020 in breach of the deportation order having made no attempt to apply to have the order revoked through the proper channels. However, it appears from his evidence that he returned to the United Kingdom far earlier than that shortly after he (sic) removed and that he has remained here since then apart from trips back to Lithuania for no more than 2 weeks at a time. He was apparently able to return either by flying directly to the United Kingdom or alternatively travelling via the Republic of Ireland."
20. The judge notes concerns about the misleading information provided by the appellant's representatives (UK Migration Lawyers Ltd) when they applied on his behalf to revoke the deportation by their letter dated 4 October 2021, concerning the whereabouts of the appellant and his relationship with his partner; "At that time the Appellant was still in the United Kingdom although their letter suggested otherwise.... The Appellant had married Ms Monika Janckaitiene in Lithuania on February 23 2020 and it was said that that she was pregnant (although her son had actually been born the previous August) It was also said that she "travels to see the applicant" but that she could not live with him on a full time basis. However, in evidence she told me she had been living with the Appellant in the United Kingdom since 2019." The judge also noted, at [22] that the detailed Grounds of Appeal lodged by different representatives (Axis Solicitors Ltd) in May 2023 suggested "..the Appellant was living outside the United Kingdom. It was said, for example, that if the Appellant did not have a deportation order against him he would have visited the UK to see his son. No address was given for the Appellant in the notice other than his solicitors address."
21. At paragraph [39] of the decision the judge referred to the appellant's breach of the deportation order as evidenced by his rapid return to the United Kingdom following his deportation in December 2015. The judge said all the evidence suggests the appellant was well aware that he should not be in the United Kingdom. Nevertheless the judge referred to the best interests of the appellant's son and the role the appellant plays in his life and the appellant's relationship with his partner. Having considered a range of relevant factors, including relevant public interest considerations the judge said, at [51] and [52]:
"51. ..the fact that a person might return to the UK in breach of a deportation order, is a serious matter that should be given significant weight in favour of the public interest. A person should not be able to benefit from a clear breach of the order, which undermines the effectiveness of the system of immigration control. Such actions are likely to provide strong justification for continuing the order even an appellant might otherwise be able to argue that the continuation of the order is nor the proper course where, for example, 10 years have elapsed since the making of the order under paragraph 391(a) - see Smith (paragraph 391(a) - revocation of deportation order) (20171 UKUT 166. The public interest is not only in ensuring that a deportation order is implemented but also that it is fully effective.
52. The Appellant's family circumstances are not sufficient to displace the strong public interest in the maintenance of effective immigration control particularly when it comes to those who seek to avoid the normal consequences of deportation by entering the United Kingdom without seeking to revoke the deportation order to which they are still subject. His attempts to mislead the Respondent (and the Tribunal) as to his location and the relevant facts when he made his current application and then appealed show that he has still not understood the need to be honest and straightforward in his dealings with those in authority and displays a certain contempt for the rules by which society is governed. Not only did he claim to be out of the United Kingdom but in his solicitor's letter of October 4 2021 they not only used Ms Janckaitiene's maiden name (even though the Appellant was then married) and said that she was pregnant and had no family in Lithuania. In his statement of November 30 2023 he gave a Lithuanian address and claimed that neither his wife nor himself could "bear the separation form one another". All of that was wrong. He also produced evidence of his wife's flights to Lithuania and some social media images no doubt in an effort to support the illusion that he was still in Lithuania. His claim in evidence that he was wrongly convicted of the 2013 offences and was innocent is also not indicative that he has learnt his lesson. When I look at all the circumstances, I consider that the decision to refuse to revoke the deportation order was proportionate I therefore dismiss his appeal under Article 8. He can be removed."
22. It is now well established that judicial caution and restraint is required when considering whether to set aside a decision of a specialist fact finding tribunal. In particular: (i) They alone are the judges of the facts. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. It is probable that in understanding and applying the law in their specialised field the tribunal will have got it right. Appellate courts should not rush to find misdirection simply because they might have reached a different conclusion on the facts or expressed themselves differently .
23. Here, the decision of Judge Cary must be read as a whole. The judge gives adequate reasons for the findings made and conclusion reached. A fact-sensitive analysis was required. The findings and conclusions reached by the judge were neither irrational nor unreasonable in the Wednesbury sense, or findings and conclusions that were wholly unsupported by the evidence. I reject the overall claim that the analysis of the evidence is irrational or perverse. The conclusion reached by the judge was based on the particular facts and circumstances of this appeal and the strength of the evidence before the Tribunal.
24. In my judgment, the grounds of appeal do not disclose a material error of law capable of affecting the outcome of the appeal.
25. It follows that I dismiss the appeal
Notice of Decision
26. The appeal to the Upper Tribunal is dismissed.
27. The decision of First-tier Tribunal Judge Cary promulgated on 24 September 2024 stands.
V. Mandalia
Upper Tribunal Judge Mandalia
Judge of the Upper Tribunal
Immigration and Asylum Chamber
9 April 2025