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

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004259
	First-tier Tribunal Nos: HU/56644/2024 LH/04474/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 28 ^th of November 2024

 

Before

 

UPPER TRIBUNAL JUDGE McWILLIAM

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

ERGYS KAPXHIU

(No ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Mr A Slatter, Counsel instructed by Farani Taylor Solicitors

For the Respondent: Mr N Wain, Home Office Presenting Officer

 

Heard at Field House on 21 November 2024

 

 

DECISION AND REASONS

1.               The Appellant is a citizen of Greece. His date of birth is 12 June 1992.

2.               On 9 September 2024 the First-tier Tribunal (Judge Boyes) granted the Secretary of State for the Home Department (SSHD) permission to appeal against the decision of the First-tier Tribunal (Judge Hussain) to allow the Appellant's appeal against the decision of the SSHD on 12 December 2023 to refuse his application under the EUSS. The SSHD made a deportation order against the Appellant on 21 July 2021 following his conviction for an offence of being concerned in the supply of cannabis on 6 April 2021. The Appellant also appealed against the decision of the SSHD on 5 June 2024 to refuse his application for leave to remain on human rights grounds.

3.               In line with the case of Abdullah & Ors (EEA; deportation appeals; procedure) [2024] UKUT 66 in relation to the decision, under the EUSS, the primary issue is whether the Respondent's decision with reference to reg 27 of the Immigration (European Economic Area) Regulations 2016 (" the 2016 Regs") is justified.

4.               The Appellant has a right of appeal under Regulation 8(3)(a) of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 ("CRA Regulations") against the decision of 12 December 2023 to refuse to grant him status under the EUSS. In relation to the human rights decision of 5 June 2024 the Appellant has a right of appeal under the NIAA 2002 pursuant to s. 84(2).

5.               The Appellant came to the UK in 2017. He returned to Greece in April 2019 to complete military service upon which he returned to the UK on 28 February 2020. It was accepted by the Respondent that the Appellant had family life with his partner, P, and their child who was born on 3 November 2023. It was accepted that the Appellant has a genuine and subsisting relationship with both and that P is a citizen of Albania who is settled in the UK. Their relationship was formed when the Appellant was lawfully in the United Kingdom.

6.               The judge made the following findings:

"50 For clarity, I should state that I accept in its entirety the evidence given by the appellant save for the following.

51 I find difficult reconciling on the one hand the appellant's claim that he is remorseful about what he has done and putting forward and entirely fanciful story about hoe he came to be involved in the trading of drugs. The idea that suddenly he bumped into someone in the park who asked him to become a courier for him without asking questions about the contents is simply a pie in the sky. Equally, unreal is the appellant's claim that he did this for money reasons in a context where he was out of income and a job because of the pandemic. The United Kingdom has one of the most generous welfare states in the world which came to its citizens' aid during the pandemic. Those unemployed were able to receive benefits and assistance which housing costs whilst those in employment, but unable to attend because of the lockdown received payments through furlough. Millions of people managed to survive relying on these means. The appellant could have done so if he wanted to. It seems to me unavoidable the conclusion that the appellant got involved in drugs because that was a quick means of making money. In other words, he did so to feed his greed.

52 Despite the finding I make above, I accept that since his release on bail in January 2022, he has not indulged in trading of drugs or attracted any attention from the police. I accept that the appellant is dedicated to his partner and child. It is to his credit that since his release on bail, he has been in active employment earning to provide for himself. There is written confirmation from the appellant's employer of his engagement in work.

...

58 Once again for certainty, I should state that the conduct resulting in the appellant being arrested on 20 April 2020 clearly took place before the specified day which was 31 December 2020. It is beyond doubt that the decision taken by the respondent involved considerations of principles in regulation 27 of the 2016 regulations. So much is obvious and apparent on the face of the notice of decision of 12 December 2020.

...

62 The respondent has reproduced the provisions of paragraph (5) of regulation 27 on the second page of the notice of refusal of 12 December 2023 as follows:

• The decision must comply with the principle of proportionality

• Be based exclusively on the personal conduct of the person concerned

• The personal conduct of the individual must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the individual and that the threat does not need to be imminent

• Matters isolated from the particulars of the case or which related to considerations of general prevention do not justify the decision

• The individuals previous criminal conviction do not in themselves justify the decision

• The decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds as specific to the person.

63 From the 'principles' set out above, it appears to me that the respondent has focused mainly on the principle of proportionality, threat to fundamental interest of society and prevention of future crime. In relation to proportionality, the respondent, no less than twice refers to the risk posed by the appellant to the public. However, despite a careful search of the material before me, I could not find what this claim was based on. If anything, the OAsys report produced at page 258 of the respondent's bundle, where the assessor is required to assess the risk of the appellant seriously reoffending over the next two years, the percentage given as 27 and is described as being 'low'. In addition, as noted earlier, since the appellant's release in January 2022, there is no indication that he has come to the adverse attention of the law enforcement authorities. I find therefore that this concern about the appellant posing a threat is not made out by the evidence.

64 In relation to the fundamental interest of society, the respondent on the third page of the refusal letter identifies protecting the public from the devastating effects of drug offending. There cannot be any doubt that this is a fundamental interest of society that requires protection. However, whilst the respondent on the third page of the refusal notice suggests that all the 'available evidence indicates that you have a propensity to reoffend', and on the fourth page the same is repeated where it states 'there is a real risk that he may reoffend in the future', I have not been pointed to the evidence that supports this position.

65 In fact, as I have pointed out above, since his release in January 2022, the appellant has not come to the adverse attention of the law enforcement authorities, rather he has settled into a paid job and is focused on supporting his family. The respondent, in the refusal notice accepts that the appellant has family life with his partner and child.

66 It is worth noting at this juncture, that the appellant's conviction on 16 February 2021 was his only conviction. Therefore, it is unclear where the claim to him being a repeated offender comes from.

67 In relation to preventing the appellant from committing further offences, I have noted above the prediction made by those who prepare the OAsys report which was that of the appellant committing any further offense in the next two years being low. That prediction has turned out to be in the appellant's favour, in that he has not committed any offence at all.

68 In view of the above, I find that the respondent has not proven that the appellant's past conduct represents a genuine and present threat to affect one of the fundamental interests of society. In so doing, I take into account that the seriousness of an offense may itself suggest a present and continuous threat. However, in this regard I note that whilst a term of imprisonment of one year and six months is not low, in the general scheme of things, drug dealing tends to attract much higher sentence and deservedly so.

69 In relation to the considerations in paragraph (6) of regulation 27, I take note of the fact that the appellant has a family in this country and that he appears to be financially self-sufficient. The respondent acknowledged that the appellant's partner was lawfully in this country when their relationship was formed and that her immigration status was not precarious. These factors must weigh in the scale in the appellant's favour. Whilst, I have regard to the claim that they will not be able to make a fresh start in Greece, I give very limited weight to that because, Greece is a member of the European Union whose standard of living would be comparable to this country. If the appellant's wife was able to learn sufficient English to work as a carer here, there is no reason why she cannot learn the Greek language also. However, this is not to say that there would not be a degree of hardship in making a fresh start in another country. I accept that the appellant's wife is well settled here and looks forward to making a home in this country.

70 Balancing all the factors, and for the reasons identified above, I find that the degree of disruption to the appellant and his partner's life resulting from making a fresh start would have a disproportionately harsh impact on their lives.

71 The overall finding is that the respondent has not demonstrated that the appellant's deportation, applying the principles in regulation 27 of the 2016 regulations, is justified."

The Grounds of Appeal

7.               The first ground of appeal is that the judge made a material misdirection of law giving inadequate reasons in respect of the assessment of the threat posed by the Appellant.

8.               The second ground of appeal relates to proportionality under reg 27(6) of the 2016 Regulations (as saved). It is said that the judge did not take into account material matters.

The Law

9.               The relevant law is set out in Regulation 27 and schedule 1 of the 2016 Regs. I will set out the salient parts as follows:

"Decisions taken on grounds of public policy, public security and public health

27. (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 respect of an EEA national who -

(a) has a right of permanent residence under regulation 15 and who] has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or

(b) is under the age of 18, unless the relevant decision is in the best interests of the person concerned, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989(1).

(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.

(7) ....

(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.)".

Schedule 1 - Considerations of Public Policy, Public Security and the Fundamental Interests of Society

" Considerations of public policy and public security

1.   The EU Treaties do not impose a uniform scale of public policy or public security values: member States enjoy considerable discretion, acting within the parameters set by the EU Treaties, applied where relevant by the EEA agreement, to define their own standards of public policy and public security, for purposes tailored to their individual contexts, from time to time.

Application of paragraph 1 to the United Kingdom

2.   An EEA national or the family member of an EEA national having extensive familial and societal links with persons of the same nationality or language does not amount to integration in the United Kingdom; a significant degree of wider cultural and societal integration must be present before a person may be regarded as integrated in the United Kingdom.

3.   Where an EEA national or the family member of an EEA national has received a custodial sentence, or is a persistent offender, the longer the sentence, or the more numerous the convictions, the greater the likelihood that the individual's continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat affecting of the fundamental interests of society.

4.   Little weight is to be attached to the integration of an EEA national or the family member of an EEA national within the United Kingdom if the alleged integrating links were formed at or around the same time as -

(a) the commission of a criminal offence;

(b) an act otherwise affecting the fundamental interests of society;

(c) the EEA national or family member of an EEA national was in custody.

5.   The removal from the United Kingdom of an EEA national or the family member of an EEA national who is able to provide substantive evidence of not demonstrating a threat (for example, through demonstrating that the EEA national or the family member of an EEA national has successfully reformed or rehabilitated) is less likely to be proportionate.

6.   It is consistent with public policy and public security requirements in the United Kingdom that EEA decisions may be taken in order to refuse, terminate or withdraw any right otherwise conferred by these Regulations in the case of abuse of rights or fraud, including -

(a) entering, attempting to enter or assisting another person to enter or to attempt to enter, a marriage, civil partnership or durable partnership of convenience; or

(b) fraudulently obtaining or attempting to obtain, or assisting another to obtain or to attempt to obtain, a right to reside under these Regulations.

The fundamental interests of society

7.   For the purposes of these Regulations, the fundamental interests of society in the United Kingdom include -

(a) preventing unlawful immigration and abuse of the immigration laws, and maintaining the integrity and effectiveness of the immigration control system (including under these Regulations) and of the Common Travel Area;

(b) maintaining public order;

(c) preventing social harm;

(d) preventing the evasion of taxes and duties;

(e) protecting public services;

(f) excluding or removing an EEA national or family member of an EEA national 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 direct victim may be difficult to identify but where there is wider societal harm (such as offences related to the misuse of drugs or crime with a cross-border dimension as mentioned in Article 83(1) of the Treaty on the Functioning of the European Union);

(h) combating the effects of persistent offending (particularly in relation to offences, which if taken in isolation, may otherwise be unlikely to meet the requirements of regulation 27);

(i) protecting the rights and freedoms of others, particularly from exploitation and trafficking;

(j) protecting the public;

(k) acting in the best interests of a child (including where doing so entails refusing a child admission to the United Kingdom, or otherwise taking an EEA decision against a child);

(l) countering terrorism and extremism and protecting shared values".

The Respondent's submissions

10.           Mr Wain expanded on the grounds. In respect of ground one, his focus was on schedule 1 (7) (c) and (g) and to support what he said was inadequacy of reasoning. He said that the judge's consideration of risk at [63] is flawed with reference to the decision MA (Pakistan) v SSHD EWCA Civ 163 (see [19]).

11.           Mr Wain said that the judge made inconsistent findings. At [51] the judge said that the Appellant got involved in drugs because that was a quick means of making money and that he did it "to feed his greed" and that he had fabricated a story. At [39] the judge noted that the Appellant originally pleaded not guilty and then changed his plea when he was told that his sentence would be reduced. These finding are inconsistent with the conclusion at [68] that the Respondent has not proved that the Appellant's past conduct represents a genuine and present threat.

12.           Ground two concerns the proportionality assessment under reg 27 (6). Mr Wain submitted that the judge did not take into account relevant factors. At [69] the judge found that there would be a degree of hardship for the Appellant's wife in relocating; however, he did not accept that the family could not make a fresh start in Greece which is a member of the EU with a comparable standard of living. What the judge says at [70] is that the degree of disruption, from making a fresh start would be disproportionate, but this does not take into account his findings at [69] or the Appellant's background at [35],[42] and [46].

The Appellant's submissions

13.           Mr Slatter relied on his Rule 24 response. In summary, in respect of ground one, he submitted that the judge had regards to the fundamental interests of society in schedule 1 (7) (c ) and (g). He relied on [13],[14], [63], [64] and [68] of the judge's decision. Mr Slatter relied on paras 3 and 5 of schedule 1 to support that the judge was entitled to take into account the length of the sentence. He said that the judge was entitled to attach weight to the OASys. The findings concerning the Appellant's motive had been superseded by events. The Appellant was now settled with a family and in employment. The finding at [70] is not inconsistent with [69]. The judge's conclusion at [70] is a global finding which balances all factors together. In respect of ground two, in summary, Mr Slatter said that the assessment of proportionality was lawful.

Conclusions

14.           I remind myself what the court of appeal said in UT (Sri Lanka) v SSHD [2029] EWCA 1095 at [19]. My focus is on whether there was an error of law and not whether I agree with the decision.

15.           The judge made a number of adverse findings concerning the Appellant. She noted everything that was not in his favour. I do not find that these were matters on which the judge failed to take into account when she assessed threat or proportionality. She was weighing up the evidence in order to make an assessment of the threat posed by the Appellant.

16.           In respect of schedule 1 (7) , I do not agree that the judge did not consider preventing social harm or tackling offences likely to cause harm to society in the context of (c) and (g). The judge at [64] said that there cannot be any doubt that protecting the public from the devastating effects of drug offending is a fundamental interest of society that requires protection. The Respondent relies on MA where the Court of Appeal said that, in the context of a deportation case, a risk of 17% over a two-year period in an OASys assessment, is not to be treated as insignificant and that it is good reason to support a deportation. In the Appellant's case there was an assessment of 27% risk over two years. I take into account that what may be a low risk for criminal sentencing is not the same as a low risk when assessing future behaviour. MA was a case where the Tribunal decided to depart from the conclusions in the OASys assessment. In this case the judge did not do so. She made findings of fact and attached weight to the OASys assessment of risk. MA does not support that the judge erred. What weight was attached to the OASys assessment was a matter for the judge. The judge took into account the evidence in the round. The OASys report was not the only piece of evidence informing the judge's decision and was not the sole reason for the judge's decision. The judge attached weight to the Appellant having been released in January 2022 and that there was no indication that he had come to the attention for the law enforcement authorities. I understand the argument that this was a relatively short period of time during which the Appellant was aware that he was potentially facing deportation, however, the judge's decision is not irrational. I note that by the time of the hearing before the judge, two years had expired since the assessment made in the OASys report. The judge was entitled to attach weight to the fact that the Appellant did not have a history of offending. The judge was permitted to attach weight to the change in the Appellant's circumstances since offending. Notwithstanding that the Appellant pleaded guilty at the last minute, was motivated by greed and fabricated a defence, the judge made an assessment of the evidence at the date of the hearing having accepted the Appellant's evidence. The Appellant at the time of the hearing had a partner and child and was employed. The judge gave adequate reasons for finding that the Respondent had not discharged the burden of proof in respect of the Appellant's conduct and the threat he posed. Ground one amounts to a disagreement with the findings of the judge.

17.           Ground two relates to proportionality under the 2016 Regs. Bearing in mind the judge's lawful conclusion that the Appellant's conduct does not represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests in the context of reg 27 (5) (c), it cannot successfully be argued that the decision of the Respondent is proportionate. In any event, there is no error in the finding of the judge. The judge noted factors in favour of the Appellant and those against and concluded that the decision was not proportionate. The judge took into account the evidence before him and made findings that are grounded in the evidence and adequately reasoned.

Notice of Decision

18.           There is no error of law. The decision of the FtT to allow the Appellant's appeal is maintained.

 

Joanna McWilliam

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

27 November 2024