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

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005000
	First-tier Tribunal No: EA/01689/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On the 06 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE FRANCES

 

Between

 

SECRETARY OF STATE FOR HOME DEPARTMENT

Appellant

and

 

MUHAMMED SHAHROZ KHAN

(NO ANONYMITY ORDER MADE)

Respondent

Representation :

For the Appellant: Ms S Lecointe, Senior Home Office Presenting Officer

For the Respondent: Mr Z Raza, instructed by DN Law Ltd

 

Heard at Field House on 31 January 2025

 

DECISION AND REASONS

 

1.              Although this is an appeal by the Secretary of State, I shall refer to the parties as in the First-tier Tribunal. The appellant is a national of Pakistan born on 15 June 1993. His appeal against the decision to deport him under the Immigration Act 1971 ('IA') was allowed under Regulation 8 of the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 ('ICRA') by First-tier Tribunal Judge Gibbs ('the judge') on 25 September 2024.

2.              On 7 October 2021, the appellant was granted indefinite leave to remain under the EU Settlement Scheme. On 17 July 2024, he was convicted of committing an act outraging public decency by behaving in an indecent manner and sentenced to 12 weeks' imprisonment. He has two previous convictions of 21 April 2022 and 8 May 2022 for driving offences.

 

3.              On 18 July 2024, the respondent made a decision to deport the appellant on the basis his deportation is conducive to the public good under section 5(1) IA 1971. The respondent stated,

"As a result of your criminality, the Secretary of State deems your deportation to be conducive to the public good and as such you are liable to deportation under section 3(5)(a) of the Immigration Act 1971."

The appellant appealed under Regulation 8 of the ICRA 2020 on the grounds that the decision was in breach of his rights under the Withdrawal Agreement ('WA') or not in accordance with section 3(5) IA 1971. The appellant completed a Section 120 Notice with reasons as to why he should not be deported.

 

4.              At the appeal hearing the Home Office Presenting Officer ('HOPO') conceded the respondent had not established that the appellant was a foreign criminal under section 117D of the Nationality and Immigration Act 2002 ('NIAA') because he had not been sentenced to a period of imprisonment of at least 12 months, he was not a persistent offender and he had not been convicted of an offence that caused serious harm. The judge took this concession into account when considering the reasonableness of the respondent's conclusion that the appellant's deportation was conducive to the public good.

 

5.              The judge found that there was no indication of what matters were taken into account by the

respondent when reaching her decision and no analysis of the factors which might be relevant to whether the appellant's deportation is in fact conducive to the public good. The judge found that the respondent had failed to give a precise and full explanation as required by Article 30(2) of Directive 2004/38/EC that is preserved by Article 21 of the WA. The judge concluded the decision breached the appellant's rights under the WA and then went on to consider whether the decision was in accordance with section 3(5) IA 1971.

 

6.               The judge reminded herself of the scope of this ground of appeal, namely reviewing the respondent's decision and considering whether the decision maker had acted in a way in which no reasonable decision maker could have acted, or whether they had taken into account some irrelevant matter or disregarded something to which they should have given weight. She stated:

"I am hampered in that task by the respondent's failure to provide detailed evidence in support of her decision or any explanation of the basis upon which it was reached beyond a reference in the decision letter to the appellant's 'criminality' (including the appellant's PNC)."

 

7.               The judge found that, contrary to Home Office guidance, there was no indication that any of the individual circumstances and factors listed in the guidance had been considered by the decision maker. She stated:

"I am satisfied on the evidence before me that the decision maker has failed to consider relevant material, disregarded matters to which he should have given weight and by making such a restrictive decision without having regard to these relevant factors contrary to the guidance issued, has acted in a way that no reasonable decision maker would have done."

The judge concluded the decision was not in accordance with section 3(5) IA 1971.

 

 

Grounds of appeal

 

8.               The respondent appealed on the grounds the judge had made a material mistake of fact and misdirected herself in law. The respondent submitted there was no concession by the HOPO and the respondent's reasons were sufficient. The fact the appellant was not a foreign criminal under section 117D NIAA 2002 did not mean the decision to deport was unlawful following Wilson (NIAA Part 5A; deportation decisions) [2020] UKUT 350 (IAC).

 

9.               The judge had misinterpreted the appellant's right of appeal against the Stage 1 deportation decision with regard to the ICRA and the WA and she had failed to apply the relevant case law that limited the scope of the appeal. The respondent submitted the judge had encroached upon what would be deemed a full merits appeal by expecting further consideration of the reasons behind the appellant's proposed deportation which was reserved for an Article 8 consideration when a Stage 2 decision had been made. In addition, the appellant's offending behaviour occurred after the UK left the EU and therefore the appellant's appeal had to be decided under national legislation.

 

10.           In submissions, Ms Lecointe relied on the grounds and stated that she had been informed that a revised Stage 1 decision had been made on 4 December 2024. It is unfortunate the respondent did not consider whether to proceed with this appeal in light of that revised decision and the lack of merit in the grounds (see my reasons below).

 

11.           Mr Raza submitted there was no error of law in the judge's decision which was consistent with Wilson because she had considered factors in addition to section 117D NIAA 2002 such as the lack of reasoning and Home Office guidance. She adopted the correct public law approach in reviewing the respondent's decision. In response to a question from me about the application of Vargova (EU national: post 31 December 2020 offending: deportation) [2024] UKUT 336, Mr Raza noted this decision was promulgated the day after the First-tier Tribunal decision in the appellant's case. He submitted the First-tier Tribunal decision was consistent with Vargova, but in any event the judge had considered whether the decision was in accordance with national legislation in the alternative and therefore there was no material error of law.

 

 

Conclusions and reasons

 

12.           I have listened to a recording of the hearing before the First-tier Tribunal and the HOPO conceded that the appellant was not a foreign criminal under section 117D NIAA 2002. There was no material mistake of fact as alleged in the grounds.

 

13.           The judge properly directed herself in law at [8] to [20]. She reminded herself of the limited scope of the appeal at [29] when considering whether the decision was in accordance with the IA 1971.

 

14.           Contrary to the grounds the judge did not conduct a full merits appeal. The respondent quoted Article 31(3) in the grounds. It states, "The redress procedures shall allow for an examination of the legality of the decision, as well as of the facts and circumstances on which the proposed measure is based". That is exactly what the judge did. It is clear on a proper reading of the decision that she examined the facts and circumstances upon which the decision was based and found the reasoning was lacking and contrary to Home Office guidance. These matters were in addition to the concession that the appellant was not a foreign criminal. There was no misapplication or failure to apply Wilson.

 

15.           The judge properly directed herself on the scope of the appeal and there was no misinterpretation of Regulation 8 of the ICRA 2020. The judge was well aware the appellant's offending behaviour occurred after the UK left the EU and she considered the procedural safeguards preserved by Article 21 WA. This was consistent with Vargova in which the UT held that:

" ...Article 21 WA does not import into domestic law the substantive safeguards which are found in the Directive, such as a requirement to apply the EU law concept of proportionality. The 'safeguards' which are available to such individuals as a result of Article 21 WA are restricted to procedural safeguards only."

 

16.           In any event, the judge considered the WA and the IA 1971 in the alternative. Any error in respect of the WA was not material to the decision to dismiss the appeal. I find there was no material error of law in the decision of 25 September 2024 and I dismiss the Secretary of State's appeal.

 

Notice of Decision

 

Appeal dismissed

 

 

 

J Frances

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

31 January 2025