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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DA/00465/2017

 

 

THE IMMIGRATION ACTS

 

 

Heard via Video Link at Field House	Decision & Reasons Promulgated
On 14 May 2021	On 05 October 2021

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

 

 

Between

 

Mr EFREN ALEXANDER MUJICA

(ANONYMITY DIRECTION NOT MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

 

 

Representation :

For the Appellant: Ms E Harris instructed by McKenzie Beute & Pope

For the Respondent: Ms A Everett, Senior Home Office Presenting Officer

 

 

DECISION AND REASONS

1.              This is an appeal under the Immigration (European Economic Area) Regulations 2016 ("the EEA Regulations") against the decision of the Secretary of State to refuse to revoke a deportation order against the appellant, a decision made on 28 July 2017. His appeal against that decision was allowed in a decision of the First-tier Tribunal promulgated on 19 December 2019. That decision was, for the reasons set out in my decision of 9 March 2020 (copy attached), set aside. Owing, amongst other things, the COVID pandemic and difficulties in obtaining instructions from the appellant, it was not possible to hear the re-making of the appeal until 14 May 2021.

2.              The appellant is a citizen of Italy born on 24 January 1995. He was born in Venezuela but arrived in the United Kingdom on 12 October 2000 to join his mother Maria Luisa Alejandrina Cuculo, an Italian citizen. Other than a caution administered on 4 February 2006 for burglary and theft from a non-dwelling, the appellant was not convicted of any offences until 2016. On 22 August 2016 the appellant was convicted of a number of offences between 12 April 2016 and 16 June 2016. These are as follows:-

12 April 2016 Burglary with intent to steal

13 May 2016 Assaulting a police constable

13 May 2016 Using threatening, abusive and insulting words and behaviour with intent to cause fear or violence

16 June 2016 Assaulting a constable and possessing an offensive weapon in a public place

17 June 2016 Assaulting a constable and criminal damage less than £5,000

17 May 2016 Sexual assault on a woman

27 April 2016 Possession of a knife in public place

3.              The appellant was sentenced at Southampton Crown Court by His Honour Judge Henry who imposed the following sentences:-

For the burglary four months' imprisonment.

Threatening a member of the public with a craft knife ten months' custody consecutive to the burglary charge.

For the offences of 13 May four months and three months concurrent plus four months for the sexual assault, again consecutive.

For the offences on 16 June he was sentenced to four months concurrently on each and two months concurrent for criminal damage plus six months for possession of a knife on that occasion consecutive to those sentences but concurrent of the sentences for the offences on 16 June. This resulted in a total of two years' imprisonment and the appellant was required to be on the Sex Offenders Register for seven years).

4.              On 7 February 2017 the respondent wrote to the appellant giving him notice that he may be liable to deportation pursuant to the Immigration (European Economic Area) Regulations 2016.

5.              On 8 February 2017 the appellant signed a disclaimer ticking the box which provided "I am aware that I have an opportunity to lodge representations against my deportation but I wish nevertheless to leave the United Kingdom without doing so". These papers were served in substitution for papers served in 2016 based on the mistaken premise that the appellant was a citizen of Venezuela.

6.              On 6 March 2017 the Secretary of State made a deportation order against the appellant under Section 5(1) of the Immigration Act 1971 in accordance with Regulation 32(3) of the EEA Regulations. On 8 March 2017 the appellant signed a further disclaimer stating that he nevertheless wished to leave the United Kingdom and waive his appeal rights. The appellant was removed to Italy in consequence of the deportation order on 4 May 2017. On 17 June 2017 the appellant's representatives sought a revocation of the deportation order which was refused on 26 July 2017.

7.              The respondent noted the appellant's convictions concluding that there had not been a change in circumstances. It was noted that the case put was that the appellant's mother had since relocated to Italy, that he had stated he did not wish to be deported, did not understand that he was consenting to deportation when he signed the disclaimer as he did not have sufficient mental capacity, and wishes to be returned to the United Kingdom to appeal the decision to deport him.

8.              The respondent did not accept on the basis of the documentation that the appellant had been resident in the United Kingdom in accordance with the EEA Regulations for a continuous period of five years. She concluded, having considered in detail his criminal offending and the OASys Report, that in the absence of any evidence that he had addressed the reasons behind his violent, sexual and otherwise aggressive behaviour that he continued to pose a real risk of reoffending in future, posing a significant and unacceptable risk of harm to women, unknown individuals, known individuals and others in the United Kingdom. It also observed that there was no indication that he would be able to financially support himself on release and absent evidence of any improvement in his personal circumstances it was reasonable to conclude that absent employment and stable accommodation he may have to revert to reoffending.

9.              The respondent considered also that the appellant he had a propensity to reoffend, presented a genuine, present and sufficiently serious threat to the fundamental interests of society and that it was proportionate to maintain the deportation order against him. She noted also that there was no evidence about the appellant's two children nor, having had regard to Article 8 of the Human Rights Convention was she satisfied that the appellant had established a family life with a partner, that he met the requirements of the Immigration Rules or that there were very compelling circumstances such that his deportation order should be revoked.

10.          There is on file an OASys assessment from 9 February 2017 in which it is noted at [2.8] that the appellant has a history of mental illness, substance abuse and low IQ. It is noted also that there was a psychiatric report from a Dr Cummings which, it is said, "offers an extensive and detailed account of Mr Mujica's life". In his opinion and recommendations, the doctor states that:

"[t]he [appellant] presented with a disordered mental state both times he saw him - 15 6 16 and 22 6 16 but with some improvement in the latter".

11.          He goes on to say "there is overwhelming evidence from reviewing his medical records that Mr Mujica's mental state although thought disordered, is clearly related to his use of illegal drugs".

12.          The report notes that the appellant had been on remand since May 2016 and had been to several prisons. At HMP Winchester the In-Reach mental health team allowed a period of assessment without medication and illegal substances. It is noted that the appellant still presented as thought disordered with paranoia and was due to be seen by the prison psychiatrist with a view to prescribing an antipsychotic medication as he had been prescribed previously.

13.          Further, at section [2.11] it appears that the appellant has three children but could not recall more detail, said he had mental health problems but did not fully answer questions.

14.          Reading the OASys assessment it appears that the appellant had at various different times given different accounts of when he was born, when he had come to the United Kingdom, as to the number of children he had had as well as to reasons why he was in Southampton. There are also indications that he had injected heroin and had taken ecstasy [8.9] and that there is a strong link between drugs and his mental health. It is also noted [9] that the appellant has significant problems as a result of binge drinking or excessive use of alcohol and violent behaviour related to alcohol. At section [11] the report records:-

"It is difficult to assess what elements of Mr Mujica's behaviour is as a result of his drug use or his mental health problems. From my dealing with Mr Mujica it appeared that he was avoiding talking about anything difficult and was only focusing on one issue and that was his deportation and new life in Italy. He would not be drawn into how he would cope in Italy or that he would be leaving his mother behind. He demonstrated no planning or consequential thinking".

15.          Again, at section [12.8]:-

"Mr Mujica showed a poor attitude to his offending behaviour and was not able to offer any insight, remorse or empathy towards his victims. He was not willing to consider any help from Probation with gaining a better understanding even if this meant he would receive a prison sentence. He was assessed [R10.6] of presenting a medium risk in the community to the public, known adults and staff, risk likely to be greatest when he was under the influence of alcohol and drugs. The risk likely to be increased due to unstable accommodation, lack of finance, support, feeling of persecution".

16.          In terms of factors likely to reduce the risk the report states [R10.5]:-

"No drugs or alcohol, engaged with MH services and treatment plan, confirmed a diagnosis, engaged with drug services and agreed to drug testing, stable home where there are firm boundaries and structure, education and plan to increase free time with constructive activities, victim empathy to gain a better understanding of the effect his behaviour has on others".

17.          Finally, in the summary sheet the OGRS 3 probability of proven reoffending is 33% in the first year and 15% in the second. The OGP probability of non-violent reoffending is 59% in year 1 and 73% in year 2.

The Law

18.          The 2016 EEA Regulations were revoked on 31 December 2020 but the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020/1309) ("EEA Transitional Regs") preserve some (but not all) of the 2016 Regulations as set in out in schedule 3 to the Transitional Regulations.

19.          In addition to EEA Transitional Regs, the 2016 EEA Regulations are also preserved for other purposes by the Citizens' Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020 ( "Citizens' Rights TP Regulations") and the Citizens' Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations ("Citizens' Rights Restriction Regulations") (SI 2020/1210).

20.          As the representatives agreed at the hearing, it is not easy to discern whether either of these sets of regulations are relevant to this appeal, or indeed what the effect is of the Transitional Regulations; and, for that reason, I gave directions for submissions on their applicability to be made in writing. Ms Harris provided detailed, lucid and helpful submissions which I have taken into account in reaching my decision.

21.          I am not, however, satisfied that either the Citizens Rights TP Regulations or the Citizens' Rights Restriction Regulations affect this appellant for the reasons set out below.

22.          The appellant does not fall within the Citizens Rights TP Regulations as he was not residing in the United Kingdom and so cannot apply for residence status under the Immigration Rules as a person so entitled by virtue of the EU Withdrawal Agreement.

23.          The Citizens Rights Restriction Regulations set out in reg 2 the categories of persons to whom them apply. The appellant does not fall within reg. 2 (2) having neither leave to enter or remain under the relevant immigration rules nor is he present in the United Kingdom. Further, he is not a person to whom article 32 (1)(b) of the Withdrawal Agreement applies as he is not a person who had requested authorisation to receive a course of planned health treatment. Although he might appear to fall within reg 2(3), he does not as he was not a person protected by the citizens' rights provisions in Part Two of the EU Withdrawal Agreement at the time he became subject to a decision to remove him under regulation 23(6)(b) of the EEA Regulations 2016. That is because the appellant was removed to Italy in May 2017 and does not come within the scope of Article 10 or Title III of the EU withdrawal agreement as he ceased to be resident in the United Kingdom well before the end of the transition period.

24.          By operation of paragraph 2 of Schedule 3 to the Transitional Regulations, deportation orders made by virtue of the EEA Regulations continue to apply until any time limit placed on them is reached or until revoked.

25.          I am also satisfied that be operation of paragraphs 5 and 6 of Schedule 3 to the Transitional Regulations that, subject to amendments in italics, the following parts of the EEA Regulations continue to apply as follows:

27.-” Decisions taken on grounds of public policy, public security and public health

(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.

...

(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.

...

(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.).

26.          As Ms Harris submitted, although reg. 34 is not include in paragraph 6, it is partially preserved by operation of paragraph 2 (5) as this is deportation that falls within paragraph 2(1) or (3) of Schedule 3. Reg 34 as it applies to this appeal provides.

34.-” Revocation of deportation and exclusion orders

(1)  ...

(3)  A person who is subject to a deportation or exclusion order made on the grounds of public policy, public security or public health in accordance with regulation 27 may only apply to the Secretary of State to have it revoked on the basis that there has been a material change in the circumstances that justified the making of the order.

(4)  An application under paragraph (3) must set out the material change in circumstances relied upon by the applicant and may only be made whilst the applicant is outside the United Kingdom.

(5)  On receipt of an application under paragraph (3), the Secretary of State must revoke the order if the Secretary of State considers that the criteria for making such an order are no longer satisfied.

(6)  The Secretary of State must take a decision on an application under paragraph (2) no later than six months after the date on which the application is received.

27.          I am satisfied also that regs. 36 and 37 continue to apply.

28.          There is, as Ms Harris submits, a tension in the wording of reg. 34 in that regs. 34 (3) and 34(5) presuppose that the making of the order in the first place was justified. I accept that is a material issue insofar as the Upper Tribunal has to consider the circumstances at the date the order was made. But, the enhanced levels of protection are not applicable to assessing prospectively the threat any appellant poses at the date of the decision to refuse to revoke the deportation order or after that. That is because of Article 21 of the Directive which provides:-

"Article 21 Continuity of residence

For the purposes of this Directive, continuity of residence may be attested by any means of proof in use in the host Member State. Continuity of residence is broken by any expulsion decision duly enforced against the person concerned".

29.          That is consistent with Regulation 3(3) of the EEA Regulations which provide:-

"(3) Continuity of residence is broken when -

(a) a person serves a sentence of imprisonment;

(b) a deportation or exclusion order is made in relation to a person; or

(c) a person is removed from the United Kingdom under these Regulations".

30.          I remind myself that I am here considering whether the decision in this case to refuse to revoke the deportation order complies with the provisions of the Directive, in particular article 33 which, so far as is relevant, provides:

Article 32

Duration of exclusion orders

1.   Persons excluded on grounds of public policy or public security may submit an application for lifting of the exclusion order after a reasonable period, depending on the circumstances, and in any event after three years from enforcement of the final exclusion order which has been validly adopted in accordance with Community law, by putting forward arguments to establish that there has been a material change in the circumstances which justified the decision ordering their exclusion.

31.          The change must be "material". It is implicit in the reference to the circumstances "which justified the decision" that the test applied at the time of the order can no longer been met and, that, bearing in mind the free movement rights under the Directive, that entry could no longer be refused.

32.          Ms Harris submits that the appellant was, at the time of the decision made, entitled to the benefit of reg 27 (4) (a) in that it was accepted that the appellant had (a) acquired the right of permanent residence and (b) had been continuously resident in the United Kingdom for a period of 10 years.

33.          First-tier Tribunal Judge Graves did find that the appellant had arrived in the United Kingdom at the age of 15 on 12 October 2000. That finding was on the basis that, as the dependant of his mother who had been exercising Treaty rights, he acquired permanent residence on 12 October 2005, as he had been under 21 at that point. Although permanent residence was not introduced until the 2006 Regulations came into effect, that is not material, given that Schedule 4, paragraph 6 of those regulations has the effect of deeming residence under the Immigration (EEA) Regulations 2000 to be residence under the 2006 Regulations.

34.          It cannot, however, be argued that there was a sustainable finding in respect of entitlement to reg 27 4 (a) as the findings at [38] fail to take into account any of the relevant jurisprudence as to whether integrating links had been built up and had been broken, nor is this an issue pursued at the hearing.

35.          I do, however, note that there is insufficient evidence to show that the appellant was coerced into agreeing to go to Italy and giving up any right of appeal. On the contrary, the evidence from what he told probation services is that he was looking forward to a fresh start in Italy.

36.          I am however, satisfied that as at the date of the decision to deport the appellant he had acquired permanent residence. It does, however, need to be recalled that this residence has come to an end, but it was still a circumstance as at the date the deportation order was made albeit not one the respondent took into account in reaching the conclusion that deportation was justified.

37.          Unlike the First-tier Tribunal I heard evidence from the appellant and from his mother. The appellant adopted his witness statement adding that he was now being looked for by a charity in Italy, Caritas, who had assisted him in working voluntarily to keep him occupied and giving him the opportunity to do things such as helping other people. He said that he was now free from alcohol and drugs and had been for three years confirmed in the letter of January 2021 but that there was nothing newer than that and it was difficult owing to the pandemic to get in touch with the doctor. He confirmed that he is taking Olanzipine, an antipsychotic.

38.          In cross-examination, the appellant said that he had been able to access doctors in Rome through Caritas and that it was the local authority that helped him with the testing. He said he had tried to get a job but it was not easy to do so given the economic situation in Italy but he had not been able to get anything other than jobs in coffee shops for a short period of six months or less. He said that after arriving in Rome he had spent six months on the streets and since then had been with Caritas and without them, would still have been on the street

39.          I also heard from the appellant's mother who adopted her witness statement of October 2019 adding that she thought her son was now a changed person. She said that he helps other people in Caritas and she could see the change in him and that he had become a nice person who cares for others. She said that she thought this was because he was no longer involved with drugs or alcohol.

40.          I also heard evidence from the appellant's former partner who adopted her witness statement. She was not cross-examined.

41.          I note that the appellant was removed to Italy, having signed a disclaimer. Whilst I note that he and his mother gave evidence in their witness statements from 2019 that in effect, he was not told the truth about the papers he was given or what he was signing, that is in direct contrast to what is recorded in the OASys Report referred to above. In the circumstances I am not satisfied that his removal from the United Kingdom was affected by any underhand means and I find that he freely consented to sign a disclaimer.

42.          I am satisfied from the medical report now presented to me that the appellant has been, certainly as recently as January 2021, free from drugs as confirmed from tests carried out on him in Italy. It appears also that he sleeps at the Caritas shelter and during the day stays inside the centre. While the report stated there has been negative results for the use of substances in recent months, no date is given for when the negative results started. It is evident from the report that he had contacted the addiction service on 18 April 2018, had several interviews with the physician and psychiatrist and that the "monitoring of urinary metabolisms have been negative for the use of substances in recent months" but no more detail.

43.          There is no indication here of testing for alcohol abuse of which was previously a problem, nor is there any indication of over how long a period the negative tests have been obtained. I note, however, that the appellant is said to have been co-operative keeping appointments and maintaining appropriate behaviour and that his tests applied as to his evaluation showed a positive result with respect to motivation for change. These are positive signs and strongly indicative of the appellant having again got some stability in his life.

44.          I am satisfied also by the witness statement from the appellant's mother and from his former partner that he maintains a close relationship with his mother. He is her only child and she is understandably distressed at the state he now finds himself in, and I accept also that he has a relationship, albeit by telephone, with his son who is approaching 16.

45.          I accept that to a significant degree, the appellant's past offending behaviour was as a result of drug and alcohol abuse. That is evident from the OASys report. It is also evident that the appellant has now engaged with support from Caritas and also with drug abuse monitoring and many of the protective factors identified are now in place.

46.          But I do not know how he would react if he now returned to the United Kingdom to live with his mother. He does not appear to have any greater prospect of employment here than he does in Italy given current conditions and it is unclear what medical or drug monitoring support would be available for him in comparison to what he receives in Italy which appears to be working for him. He has, I accept, shown significant progress which is to be praised.

47.          I accept that the appellant has, recently at least, been more stable and no longer reliant on drugs. That he has managed to achieve this through COVID lockdown is impressive. That appears to be largely as a result of support from an addiction service and a charity, Caritas. How the appellant would react on return to the United Kingdom is unclear. There is no evidence before me of what support he would get beyond family, and in particular with respect to his drug misuse which appears to need specialist help and which has clearly been of benefit to him. I accept that he would have the support of his mother, and has the incentive of developing a better relationship with his son.

48.          It is noteworthy that in this case, the appellant's offending took place over a relatively short period of time when he was clearly out of control on account of drug abuse. That is, on the basis of the evidence, no longer a factor given that he is, on the evidence before me, no longer abusing drugs. He has gained a degree of stability in his life and is in a position to take employment.

49.          Accordingly, taking all these factors into account, and noting that the appellant has progressed recently in Italy, there has been a change in his circumstances. Is that then "material" as is required by the Directive and the Regulations?

50.          Given the appellant's circumstances, lack of ties to family, community, persistent offending including drugs, a bladed weapon and sexual assault, and risk of reoffending, as set out in the OASys report, I have no hesitation in concluding that at the date of the decision to deport the appellant, that decision was justified, assuming that he had not met either of the enhanced levels of protection, a finding that the respondent was entitled to reach on the basis of the evidence before her.

51.          Is that test no longer met? In considering that issue, I take into account the factors set out in Schedule 1 to the EEA Regulations.

52.          Looking at the evidence in the round, given that the appellant has now accessed proper support and treatment, has engaged with support, and would have a stable home with his mother, that despite the previous offending (primarily drug-driven) that he no longer represents a genuine, present and sufficiently serious threat. In reaching that conclusion, I note no evidence of reoffending, and that the appellant has now redeveloped and strengthened family ties.

53.          While the offending was clearly serious, it is notable that it is strongly correlated to drug addiction and lack of treatment for mental health which is no longer the case. The appellant now helps others at Caritas which has helped him to gain a sense of self-worth and stability. He has the support of his mother. The likelihood of reoffending has, on the basis of the protective factors identified in the OASys report greatly reduced.

54.          In terms of para 7 of Schedule 1, I conclude that in the light of the lack of the now limited threat that the appellant presents, that these factors do not, either singly or cumulative, militate against the appellant presenting a genuine, present and sufficiently serious threat, given the greatly reduced threat of reoffending. I accept that the appellant is still subject to being on the sex offenders register, but that is a function of the offences he committed.

55.          Taking all of these factors into account, I conclude that there has been a material change in the appellant's circumstances, such that the deportation order made against him can no longer be justified.

56.          For that reason, I allow the appeal. Whether that will allow the appellant to re-enter the United Kingdom is a matter on which he will need to take legal advice.

 

Notice of Decision

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

2.             I remake the appeal by allowing it under the EEA Regulations.

3.             No anonymity direction is made.

 

 

Signed Date 24 August 2021

 

Jeremy K H Rintoul

Upper Tribunal Judge Rintoul

ANNEX - ERROR OF LAW DECISION

 

A picture containing text Description automatically generated

IAC-AH-SC-V1

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DA/00465/2017

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House	Decision & Reasons Promulgated
On 9 March 2020
Extempore	.......................................

 

Before

 

UPPER TRIBUNAL JUDGE RINTOUL

 

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

Efren Alexander Mujica

(ANONYMITY DIRECTION NOT MADE)

Respondent

 

 

Representation :

For the Appellant: Mr N Bramble, Senior Home Office Presenting Officer

For the Respondent: Mr M Murphy of Counsel

 

 

DECISION AND REASONS

1.              The Secretary of State appeals with permission against the decision of the First-tier Tribunal promulgated on 19 December 2019, allowing the appeal of Mr Efren Alexander Mujica against the decision of the Secretary of State made to refuse to revoke a deportation order against him, this being a decision made on 28 July 2017. The appeal was under the Immigration (European Economic Area) Regulations 2016 ("The EEA Regulations")

2.              It is in the circumstances of this case, necessary to set out some of the detail of the history which led to this decision. The respondent, who is an Italian Citizen, was convicted of several offences, resulting in a deportation order signed on 6 March 2017, though the Secretary of State's case is that the respondent signed a disclaimer on 8 February 2017 and then on 8 March 2017 waived his right of appeal against that decision. That then resulted in the respondent being removed to Italy to put into effect the deportation order.

3.              This appeal was previously allowed by the First-tier Tribunal but was then appealed by the Secretary of State to the Upper Tribunal which remitted the decision to the First-tier Tribunal for a fresh decision, in this case that is the decision of Judge Graves, against which this appeal lies.

4.              There are set out in the decision of the First-tier Tribunal a history of the facts which led to the deportation order being made. I do not consider that there is any dispute as to the crimes which gave rise to that. Whether or not the respondent was entitled to the medium or the higher level of protection against the decision had he appealed it in March 2017 is less clear. In this case the judge heard evidence from the respondent's mother. He heard submissions from both representatives including Mr Murphy who appeared before me today.

5.              There is a significant difficulty with the approach taken by the First-tier Tribunal in this case. There was insufficient consideration of the scope of the appeal which is against the decision to refuse to revoke an expulsion order which in turn needs to be considered through the prism of Article 21 of Directive 2004/38 which provides that for the purposes of that Directive continuity of residence may be attested by any means of proof, continuity of residence is broken by any expulsion decision duly enforced against the person concerned.

6.              The starting point for the consideration of this decision must be the grounds of appeal and the appeal which is set out in Regulation 34 which permits a person to apply to have a deportation of exclusion order to be revoked on the basis there has been a material change in circumstances that justify the making of the order, sub-paragraph (iv) providing that the application must set out the material change in the circumstances. There is an appeal against that decision and it is governed by Regulation 37 of the EEA Regulations. It is not dispute that this is an EEA decision within the meaning of the Regulations.

7.              The judge considered in some detail the nature and duration of the respondent's residence in the United Kingdom in order to assess what would have been the appropriate test with respect to the respondent's residence in the United Kingdom. The judge considered whether the respondent had acquired permanent residence and so was entitled to the medium level of protection under reg 27(2) of the EEA Regulations and also whether he was entitled to the highest level of protection under reg 27 (3) of those regulations.

8.              The judge made findings on that issue, but what is in issue here is whether there had been a material change of circumstances such that the decision to expel should have been revoked and it is unfortunate that much of the reasoning has been taken up with a concentration on the position as it would have been had this been an appeal made in 2017 against the decision to deport. That is not necessarily a material error, but it is of note that Ground 1 of the grounds of appeal submits that the judge had erred in conflating the decision to deport and a decision to revoke a deportation order.

9.              The main thrust of the grounds is this. It is that the finding that there had been a material change of circumstances is not properly reasoned and/or is perverse and that the findings that the respondent does not any longer represent a threat are not made out.

10.          At paragraph 18 of the grounds, the Secretary of State sets out five specific factors which it is said were not taken into account in reaching the decision as to whether there had been a material change in circumstances coupled with the observation at paragraph 21 that a lack of offending for a period of three and a half years dating back from date of hearing was taken into account yet did not take into account that a substantial part of that was spent whilst the respondent was in prison.

11.          In fairness, the factors set out abreast in paragraph 18 of the grounds, are repeated in paragraphs 44 to 45 of the decision, in particular and the judge at [48] does note that the respondent is a long-term drug user who abused substances giving rise to psychotic and violent tendencies. It is noted also that his statement does not address his circumstances now, or what he has done to address his risk of offending. There is then at discussion of the evidence from his mother as well as input from social workers. It was also noted that he had been treated as a missing person by the police and taken to hospital and treated by antipsychotics at [49]. Also, that he had been taken to a shelter at [50], the judge noting at [51] that it was unfortunate that the most recent report was not made available.

12.          I consider that there has in this case been an insufficient consideration of the previous offending behaviour in light of a lack of evidence directly from the appellant as to his change in circumstances if any. It was noted that he has not given evidence. I do not consider that the judge was properly entitled to find that there was strong evidence that relates directly to whether the respondent continues to pose a great risk to public, as found at [52], yet to find that he is making significant steps towards rehabilitation. That does not mean that he is nearly there nor is it a sufficient basis for which it could be said that he no longer poses an ongoing risk to the public given how he had behaved in the past. It is also, I consider a valid criticism to take into account that there is no offending behaviour when, as the Secretary of State properly points out, a large part of that has been the appellant was in prison.

13.          Further, there appears to have been little proper concentration of what the relevant test would have been as to whether the respondent does continue to represent a genuine, present and sufficiently serious threat such that his exclusion from the United Kingdom can be maintained. It is unclear from the decision what test the judge applied despite having directed herself in respect of Article 21 of the Directive. Given the effect of reg.21, the higher level tests set out in reg 27(2) and 27(3) are not applicable Accordingly, and as it appears that the judge has also taken into account in reaching the final conclusion that the decision made previously was flawed, that the decision involved the making of an error of law and I set it aside.

Notice of decision

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

2.              The decision will be remade in the Upper Tribunal on a date to be fixed.

3.              Any new material on which either party seeks to rely must be served on the other party and on the Upper Tribunal at least 10 working days before the date of the next hearing.

 

No anonymity direction is made.

 

 

Signed Date: 13 March 2020

 

Upper Tribunal Judge Rintoul