Upper Tribunal (Immigration and asylum chamber), 2019-04-12, DA/00495/2017
| Jurisdiction | UK Non-devolved |
| Date | 12 April 2019 |
| Published date | 05 June 2019 |
| Hearing Date | 25 March 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | DA/00495/2017 |
Appeal Number: DA/00495/2017
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00495/2017
THE IMMIGRATION ACTS
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Heard at RCJ |
Decision & Reasons Promulgated |
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On 25 March 2019 |
On 12 April 2019 |
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Before
DEPUTY UPPER TRIBUNAL JUDGE DAVEY
Between
Lukasz Tadeusz Boguszewski
(ANONYMITY DIRECTION not made)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Mohzam, solicitor of Burton & Burton Solicitors
For the Respondent: Mr I Jarvis, Senior Presenting Officer
DECISION AND REASONS
1. The Appellant, a national of Poland, date of birth 28 March 1986, appealed against the Respondent’s decision, dated 18 August 2017, for deportation made under the Immigration (European Economic Area) Regulations 2016 (the 2016 Regulations).
2. His appeal came before First-tier Tribunal Judge Clemes on 9 November 2017 and in a decision [D] promulgated on 28 November 2017 the Judge dismissed his appeal.
3. Permission to appeal that decision was given by Upper Tribunal Judge Grubb on 14 May 2018.
4. The Judge in granting permission said:-
“It is arguable that the judge erred in law in considering the basis upon which the Appellant could be legally deported under EU law. It appears that the judge accepted that the Appellant had been in the UK since 2006, although only exercising Treaty rights since 2008 (see paras 25 and 26). In which case, it would appear that the Appellant had been in the UK for at least 10 years prior to the decision to deport and could only be deported on imperative grounds of security (reg 27(4)(a)). The judge only considered the legality of his deportation on the ‘lesser’ basis of ‘serious grounds of public policy’ based upon a permanent right of residence. …”.
5. The argument advanced by Mr Mohzam was that the Appellant had entered the United Kingdom lawfully in 2006. Mr Mohzam did not dispute the finding as the Appellant was not, until early 2008, exercising treaty rights as a qualified person under Regulation 6. Whilst the Appellant had in the succeeding years of 2007, 2009, 2010, 2011, 2012, 2013 been convicted of a number of offences, and in 2016 for the index offence of possessing controlled drugs and producing a controlled drug : For which he was sentenced to fourteen months’ imprisonment in total, which led to the deportation notice served by the Respondent on 15 May 2017, that the grounds did not reflect the fact that the Appellant had by that stage been in the UK as a fact, according to his argument, for over ten years. He further argued that the Judge had not properly addressed the Article 8 ECHR based claim; in that the proportionality assessment had failed to take into account the length of time the Appellant had spent in the United Kingdom.
6. At the hearing of the appeal the Appellant, who had been hoping to attend for the purposes of his appeal having now returned to Poland, was not produced, but it did not feature as an issue that was argued before me as to some bases upon which the appeal should be adjourned. The e-mail and information relating to the non-attendance of the Appellant was shown to Mr Mohzam before the hearing.
7. Mr Jarvis countered the arguments:- first, If you calculated the time the Appellant had been exercising treaty rights in the UK he had not, as a fact on the evidence, i.e. from early 2008 [D23-25] and the deportation decision, 18 August 2017, he was imprisoned on 3 May 2017, did not demonstrate the ten years’ residence, and in the sense of exercising treaty rights. Secondly, more than that, the Appellant’s criminal history showed that he had not been lawfully in the UK other than simply as a fact through being able to reside here under the provisions of the EEA directive as represented in the Regulations. Mr Jarvis argued that even if that argument failed the fact was that the Appellant had been imprisoned, had been involved in criminality, and that in the light of the case law the ten year period had not been established.
8. Third, Mr Jarvis relied upon the case of Vomero, a decision of the Grand Chamber of the Court of Justice of the European Communities on 17 April 2018. The decision of the court addressing, amongst other things, the implications on the cumulation of ten years’ residence and the implications of interruptions in that period, said [paragraph 70]:-
“As to whether periods of imprisonment may, by themselves and irrespective of periods of absence from the host Member State, also lead, where appropriate, to a severing of the link with that State and to the discontinuity of the period of residence in that State, the Court has held that although, in principle, such periods of imprisonment interrupt the continuity of the period of residence, for the purpose of Article 28(3)(a) of Directive 2004/38, it is nevertheless necessary — in order to determine whether those periods of imprisonment have broken the integrative links previously forged with the host Member State with the result that the person concerned is no longer entitled to the enhanced protection provided for in that provision — to carry out an overall assessment of the situation of that person at the precise time when the question of expulsion arises. In the context of that overall assessment, periods of imprisonment must be taken into consideration together with all the relevant factors in each individual case, including, as the case may be, the circumstance that the person concerned resided in the host Member State for the 10 years preceding his imprisonment …”.
At [71] the court said:-
“Indeed, particularly in the case of a Union citizen who was already in a position to satisfy the condition of 10 years’ continuous residence in the host Member State in the past, even before he committed a criminal act that resulted in his detention, the fact that the person concerned was placed in custody by the authorities of that State cannot be regarded as automatically breaking the integrative links that that person had previously forged with that State …”
and at [72]:-
“As part of the overall assessment, mentioned in paragraph 70 above, which, in this case, is for the referring court to carry out, it is necessary to take into account, as regards the integrative links forged by B with the host Member State during the period of residence before his detention, the fact that, the more those integrative links with that State are solid — including from a social, cultural and family perspective, to the point where, for example, the person concerned is genuinely rooted in the society of that State, as found by the referring court in the main proceedings — the lower the probability that a period of detention could have resulted in those links being broken and, consequently, a discontinuity of the 10-year period of residence referred to in Article 28(3)(a) of Directive 2004/38.”
9. Other relevant factors were pointed out and the court noted [D74]:-
“While the nature of the offence and the circumstances in which it was committed shed light on the extent to which the person concerned has, as the case may be, become disconnected from the society of the host Member State, the attitude...
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