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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER |
Case No: UI-2024-005828 |
|
First-tier Tribunal No: HU/50293/2024 |
THE IMMIGRATION ACTS
Decision & Reasons Issued:
9 th May 2025
Before
UPPER TRIBUNAL JUDGE KEBEDE
UPPER Tribunal JUDGE PICKUP SITTING IN RETIREMENT
Between
Hussain Shah
(NO ANONYMITY ORDER MADE)
Appellant
and
Secretary of State for the Home Department
Respondent
Representation :
For the Appellant: Mr C Holmes of Counsel
For the Respondent: Mr A Tan, Senior Home Office Presenting Officer
Heard at Manchester Civil Justice Centre on 25 April 2025
DECISION AND REASONS
1. This is a decision to which both judges have contributed.
2. The appellant appeals to the Upper Tribunal against the decision of the First-tier Tribunal dated 31 October 2024 dismissing his appeal against the respondent's decision of 8 January 2024 to refuse his human rights claim.
3. The single ground of appeal is that the First-tier Tribunal erred in law by taking into account conduct of the Appellant that pre-dates the end of the implementation period ('the specified date') without applying the protective provisions of Directive 2004/38/EC ('the Directive') to that assessment, relying on SSHD v Vargova (Slovakia) [2024] UKUT 336 (IAC) and the application of Article 20(1) of the Withdrawal Agreement (WA). It is argued that the First-tier Tribunal took 'pre-dating conduct' into account at [29] and [43] of the impugned decision but failed to apply the requirements, including that of proportionality, when assessing the appellant's conduct.
4. The First-tier Tribunal refused permission to appeal on 16 December 2024 but when the application was renewed to the Upper Tribunal, permission was granted by Upper Tribunal Judge Pinder in the decision issued on 13 February 2025, considering the grounds arguable but adding that "any issues of materiality will need to be considered at the next hearing."
5. At the conclusion of the error of law hearing before us, we reserved our decision to be given in writing, which we now do.
6. We are grateful for the succinct submissions of both representatives at the hearing before us, which we have carefully considered and taken into account, along with all documentary material, including Mr Homes' initial skeleton argument of 11 November 2024 and the renewed grounds of appeal, dated 20 December 2024.
7. The relevant background can be summarised as follows. The appellant, an Italian citizen, claims to have entered the UK lawfully as a minor in 2011. In 2016, he applied for an EEA Registration Certificate, which was refused. However, he was granted Indefinite Leave to Remain (ILR) under the EU Settlement Scheme (EUSS) on 2 December 2019.
8. Thereafter, he committed criminal offences, the most recent for offences of violence committed in January 2021 and for which he was imprisoned in January 2023 with concurrent terms amounting to 21 months but consecutive to an activated earlier sentence of four months, making a total term of imprisonment of 25 months, which sentence was served by 24 July 2023. The appellant has been on bail since 29 August 2023.
9. As a result of his offending behaviour, deportation proceedings commenced with a stage 1 decision notice issued on 7 February 2023. Subsequent to his response, a Stage 2 deportation letter was issued on 8 January 2024, refusing his human rights claim. The appellant appealed to the First-tier Tribunal, resulting in the decision which is the subject of this appeal to the Upper Tribunal.
10. The respondent made clear to the First-tier Tribunal that reliance was placed only on the offending behaviour of January 2021. At [9] of the decision, the First-tier Tribunal noted that crucial to the appeal was whether the appellant was entitled to any additional protection as an EU national with ILR. The judge carefully summarised the effect of the decision in Vargova and the point at which any procedural safeguards under Articles 20 and 21 of the WA come into play. The judge's summary of the law is not challenged by the appellant.
11. At [10] of the First-tier Tribunal decision, the judge referred to the 'bright line' distinction between the regimes that apply to those who commit offences prior to the end of the transition period and those who commit offences after the specified date. In short, Vargova held that Article 21 did not import substantive EU law rights in respect of post-transition period conduct. As the judge correctly summarised at [11] of the decision, "the enhanced tests which previously were available to EU nationals pre 31 December 2020 are only available for people who committed offences before that date."
12. At this stage it is worth pointing out that at the First-tier Tribunal appeal hearing, the appellant's representative relied only on article 8 ECHR and abandoned a previously submitted skeleton argument addressing European law issues.
13. Before us, Mr Holmes clarified the issue before the Upper Tribunal in simple terms, asking "did the First-tier Tribunal rely on pre-Brexit conduct?" to justify the deportation decision.
14. The skeleton arguments point first to [29] of the decision, where the judge noted that the offences which led to the deportation proceedings were not his first offence and provided a summary of the earlier offences, concluding "The 2021 offences demonstrated the appellant had progressed in a negative way rather than a positive way."
15. Complaint is also made as to [43(ii)] of the decision, where, in support of the conclusion that the appellant was not socially and culturally integrated in the UK, the judge stated, "He has a history of anti-social behaviour in 2018/2019 and 2021."
16. Mr Holmes' argument is that the judge was in error of law in taking into account and holding against the appellant his pre-Brexit conduct without applying the tests relevant to the question of expulsion as set out in Directive 2004/38/EC, or giving the appellant the benefit of the protections proffered by the Directive.
17. After careful consideration, we reject the premise of the appellant's argument. It is quite clear that the respondent relied only on the 2021 criminal behaviour when instituting deportation proceedings. That was specifically made clear to the First-tier Tribunal, as the judge noted at [8] of the decision. We also note that the appellant's representative at the First-tier Tribunal appeal hearing specifically abandoned any EU law argument against deportation.
18. We are satisfied that in drawing a 'bright line' between pre and post specified date offending which triggers deportation proceedings, the WA safeguards are not to be read as encompassing any and all reference to relevant conduct or behaviour prior to the specified date. We are in agreement with the judge of the First-tier Tribunal refusing permission to appeal in considering that the protections of the Directive do not operate as to require a judge considering deportation based on post-transition period criminal conduct to entirely disregard all pre-specified date conduct when such conduct is part of the relevant factual landscape in the considerations that must be made in a deportation appeal. To do so would be entirely artificial. In any event, we are also satisfied that the extent to which there was any reference to or reliance on pre-specified date conduct was not material to the outcome of the appeal, given the careful assessment made by the First-tier Tribunal.
19. In all the circumstances, and for the reasons outlined above, we are not satisfied that any error of law is disclosed in the making of the decision of the First-tier Tribunal. It follows that the appeal must be dismissed.
Notice of Decision
The appellant's appeal to the Upper Tribunal is dismissed.
The decision of the First-tier Tribunal stands as made and the appeal remains dismissed.
We make no order as to costs.
DMW Pickup
Judge of the Upper Tribunal
Immigration and Asylum Chamber
26 April 2025