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

 

IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI- 2024-005010
	First-tier Tribunal No: HU/53300/2023 LH/01419/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

21 February 2025

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

DEPUTY UPPER TIRUBNAL JUDGE BEACH

 

Between

 

TOMAS ALBERTO DE SOUSA ESTEVES

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Ms Imanovic, Counsel instructed by MSR Solicitors

For the Respondent: Mr Thompson, Senior Home Office Presenting Officer

 

Heard at Field House on 31 ^st January 2025

 

DECISION AND REASONS

1.              The appellant appeals with permission against a decision of First-tier Tribunal Judge Parkes promulgated on 13 ^th August 2024, dismissing his appeal against a decision of the Secretary of State made on 13 ^th February 2023 to make a deportation order under Regulation 32(5) of the Immigration (European Economic Area) Regulations 2016 ("the EEA Regulations 2016") and to refuse a human rights claim.

2.              The appellant's position was that he had established ten years' residence in the UK and that he was not a genuine, present and sufficiently serious threat to public security or public policy. The appellant's position was further that the decision was not a proportionate decision under the EEA Regulations 2016. The appellant also relied on the family life exception in Section 117C of the Nationality, Immigration and Asylum Act 2002 or alternatively stated that there were very compelling circumstances over and above the exceptions which outweighed the public interest in deportation.

3.              The Secretary of State did not accept that the appellant had resided in the UK for at least 10 years. The Secretary of State accepted that the appellant had established permanent residence in the UK. The Secretary of State's position was that the appellant posed a genuine, present and sufficiently serious threat to public security or public policy on serous grounds and that the decision was proportionate under the EEA Regulations 2016. The Secretary of State's position was also that the appellant did not fulfil the requirements of the exceptions in Section 117C of the NIAA 2002 and that the appellant had not shown that there were very compelling circumstances over and above the exceptions which outweighed the public interest in deportation.

4.              The judge heard evidence from the appellant and from the appellant's partner. The judge found that the appellant had not shown that he had ten years' continuous, lawful residence in the UK. The judge further found that the decision to deport the appellant from the UK was a proportionate decision for the purposes of the EEA Regulations 2016 and Section 117C of the NIAA 2002.

5.              The appellant sought permission to appeal on the grounds that the judge had erred:

(i)             in his assessment of whether the appellant had established ten years' residence in the UK;

(ii)          in failing to provide adequate reasons as to why the deportation of the appellant from the UK was proportionate under the EEA Regulations 2016

(iii)        in failing to provide adequate reasons for rejecting the appellant's Article 8 claim.

6.              On 6 ^th November 2024, Upper Tribunal Judge Hoffman granted permission to appeal.

7.              We heard submissions from both representatives. Ms Imanovic submitted that the judge had failed to properly consider the appellant's integrative links when assessing whether the appellant had reached ten years' continuous residence in the UK. We referred Ms Imanovic to the judgment in Hafeez v SSHD [2020] EWCA Civ 406 and she agreed that, in light of that judgment, Ground 1 was difficult to argue. With regard to the proportionality assessment under the EEA Regulations 2016, Ms Imanovic submitted that the judge took account of evidence which was not before him by taking account of an unsigned witness statement from the appellant. She submitted that this was important because the judge placed weight on the comments in that witness statement and found that the appellant was disingenuous regarding his offending behaviour and that it affected the appellant's credibility overall.

8.              Ms Imanovic further submitted that the judge did not give cogent reasons for rejecting the OASys assessment in particular the assessment of the risk of reoffending. She submitted that the judge had erred in finding that the appellant was still subject to licence conditions at the date of the hearing. She submitted that the lack of reoffending as well as an assessment of rehabilitation and the appellant's integrative links was all of relevance when assessing whether the appellant posed a genuine, present and sufficiently serious threat to public security or public policy and when assessing proportionality under the EEA Regulations 2016. Ms Imanovic submitted that the judge failed to make any findings regarding the appellant's partner's circumstances in the Article 8 assessment. She submitted that there was no assessment of the impact on the appellant's child and no assessment of the partner's mental health conditions.

9.              Mr Thompson submitted that the judge was able to take account of the appellant's unsigned witness statement because it formed part of an appellant's bundle that had been uploaded to MyHMCTS. Mr Thompson submitted that the judge had clearly considered the balance sheet approach and had had regard to the appellant's age and his prospects of rehabilitation amongst other factors. He submitted that it was open to the judge to draw adverse inferences from the OASys assessment and to find that engagement was only so that the appellant would gain enhanced prisoner status. Mr Thompson submitted that the judge had made reference to a number of negative factors of which he was entitled to take account when assessing proportionality under both the EEA Regulations 2016 and Article 8. Mr Thompson submitted that the judge had given sufficient consideration to the proportionality assessment under the EEA Regulations 2016 and Article 8 and had assessed all the relevant factors.

10.           In response, Ms Imanovic submitted that the judge had failed to give adequate reasons as to why he rejected the OASys assessment's finding that the appellant was a low risk of reoffending. She said that the cumulative failings in terms of assessing rehabilitation, combined with the other factors, was sufficient to show that the judge had made a material error of law.

Discussion

11.          We bear in mind that an appellate tribunal should be wary of setting aside a decision by a lower Tribunal. In doing so we apply what was held in in Ullah v SSHD [2024] EWCA Civ 201 at [26]: 

12.          We further bear in mind what was said in Volpi v Volpi [2022] EWCA Civ 464 at [2] and what was held in HA (Iraq) [2022] UKSC 22 at [72]. 

13.          The judge found that the appellant had not established ten years continuous residence in the UK. In reaching that finding, the judge focused almost exclusively on the appellant's offending behaviour. He did not consider any other integrative links which the appellant may have formed in the UK; there was no assessment of the appellant's education experience in the UK, his family links or other links with the community. When assessing integrative links and whether they have been broken by a period of imprisonment, it is necessary to consider all the relevant factors and it is arguable that the judge failed to do this. However, in light of Hafeez [37-43] this is not a material error of law as the appellant was sentenced to 43 months in a young offenders' institute on 8 ^th October 2019 and only arrived in the UK in 2013. He had not, therefore, established ten years continuous residence at the date of the decision which was made on 13 ^th February 2023; by that date the appellant had been in custody in a young offenders' institute for over 3 years which broke the continuity of residence the appellant had in the UK.

14.          The judge moved from his finding regarding the appellant's length of residence to consideration of whether it was proportionate to deport the appellant from the UK. There was no clear, separate consideration of whether the appellant posed a genuine, present and sufficiently serious threat to public policy or public security. We note, too, that the appellant's grounds also moved from an attack on the judge's findings regarding integrative links to an attack on the judge's findings regarding proportionality under the EEA Regulations 2016 without addressing the issue of whether the appellant posed a genuine, present and sufficiently serious threat to public policy or public security.

15.          Doing so, in our view, is the omission of a significant step in reasoning, albeit one which is not directly pleaded. As was noted in Dumliauskus [2015] EWCA Civ 145 at [40] confirmed at [55] it is only if there is a risk of reoffending that the power to expel arises.

16.          In assessing whether the decision to deport the appellant was proportionate under the EEA Regulations 2016, the judge places significant weight on the appellant's offending behaviour. The judge makes reference to an earlier OASys assessment where the appellant was considered to have engaged primarily in the hope of gaining enhanced prisoner status [23]. There is no particular engagement with the later Probation documents including a later OASys assessment which were contained in the appellant's bundle before the FtT. It is difficult to separate out the judge's findings with regard to the risk posed by the appellant and those relating to the proportionality of deportation as the judge appears to have addressed these together rather than separately rather than adopt the correct approach which is to identify first whether there is a risk of reoffending. The judge notes that the OASys assessment found that the appellant would be at low risk of reoffending and that the appellant had not, in fact, reoffended since his release from prison but placed little weight on those factors because the appellant had been subject to licence conditions and was still subject to the threat of deportation. The basis for finding that this outweighed the assessment of low risk in the OASys assessment is unclear, particularly when the judge's emphasis was on the earlier OASys assessment rather than the later one which did not raise the same issues with regard to the appellant's engagement.

17.          Whilst there is an assessment of the relocation of the appellant with his partner and child to Portugal, there is very little assessment of the appellant's links to the UK and the effect on the appellant if he were deported to Portugal. There is no clear reference to the factors in Schedule 1 of the EEA Regulations 2016 when assessing whether the deportation of the appellant would be proportionate, bearing in mind that it was for the respondent to justify deportation.

18.          We find that the judge has not properly assessed or taken account of all relevant factors when assessing the proportionality of deportation under the EEA Regulations 2016 and that this is a material error of law.

19.          We further find that the judge has not taken account of all relevant factors when assessing whether the effects of deportation on the appellant's partner and child would be unduly harsh. There was evidence before the judge that the appellant's partner required family support as a result of her diagnosed PTSD following an attack on her in her home. The judge has noted that the appellant's partner was diagnosed with PTSD but has not considered the effect on her of being removed from her family support if she relocated to Portugal with the appellant or of the appellant's support being removed from her if she remained in the UK without the appellant.

20.          We are satisfied that, for the reasons given above, the judge has made a material error of law in his assessment of the EEA Regulations 2016 and his assessment of whether the effects of deportation on the appellant's partner and child would be unduly harsh. We are satisfied that it would be in the interests of justice to remit this appeal to the First-tier Tribunal to be heard again afresh by a judge other than Judge Parkes

Notice of Decision

(1)           The decision of the First-tier Tribunal involved the making of an error of law and we set it aside.

(2)           We remit the appeal to the First-tier Tribunal to be heard by a judge other than Judge Parkes. For the avoidance of doubt, none of the findings of fact are preserved.

 

Signed F Beach Date: 11 ^th February 2025

Deputy Judge of the Upper Tribunal