Upper Tribunal Immigration and Asylum Chamber

[2024] UKUT 00393 (IAC)

Fecha: 24-Sep-2024

The appeal

The appeal

33.

The Respondent initially sought permission to appeal on the basis that the First-tier Tribunal erred in law on the following four grounds:

(i)

that the First-tier Tribunal adopted a legally flawed approach to the construction of the provisions in Appendix EU to the Immigration Rules; specifically (i) that the interpretation given had the effect that a person had enhanced protection as an EEA national offender after the United Kingdom’s withdrawal from the European Union where he would not have had the same protection before, which can not have been intended by the Respondent nor required by the EU Withdrawal Agreement; and (ii) the phrase ‘deportation order’ was mis-read, as the conduct relied upon included offending after the specified date, that was sufficient to conclude that the deportation order satisfied the definition in paragraph (b)(i) for ‘deportation order’ in Annex 1 to Appendix EU. The provision in (b)(ii) being expressly in the alternative.

(ii)

that the First-tier Tribunal erred in finding that the Appellant had five years’ continuous residence in the United Kingdom in circumstances where the Appellant himself did not positively assert his continuity of residence without absences during the relevant time.

(iii)

that the First-tier Tribunal erred in finding that the Appellant was no longer a persistent offender and/or the threat posed by him was not sufficiently serious in circumstances where (i) there was a factual error in the gap between the last offence in September 2022 and the date of hearing in January 2024 (which was sixteen months and not two years as relied upon by the First-tier Tribunal); (ii) where the approach taken was contrary to that in Chege (“is a persistent offender”) [2016] UKUT 187 (IAC), which did not require a person to continue to offend up to the date of decision to be considered a persistent offender; and (iii) where the First-tier Tribunal failed to properly consider the seriousness of offending by limiting itself to considerations of individual offences and whether there was public revulsion, without considering the frequency of offending and propensity to reoffend. The ground also asserts the First-tier Tribunal erred in finding there was no escalation in seriousness of offending because committing a crime following an earlier conviction is itself an escalation and results in increased sentences following each conviction.

(iv)

that the First-tier Tribunal erred in allowing the appeal on human rights grounds as this aspect of the decision was entirely based upon the conclusions under Appendix EU and the EEA Regulations; which for the reasons in grounds one to three were wrong in law.

34.

There was no dispute that permission was expressly granted by the First-tier Tribunal on grounds one, three and four; but disagreement between the parties as to whether permission had also been granted on ground two. Prior to the hearing, the Respondent asserted that permission had been granted on all grounds, and in the alternative, sought an extension of time for a renewed application for permission to appeal on the second ground to the Upper Tribunal.

35.

At the hearing we gave a preliminary indication that the First-tier Tribunal’s grant of permission was clear, that permission had expressly been granted on limited grounds (one, three and four) and refused on the second ground on the basis that it did not identify any arguable error of law. We also indicated that we were not minded to grant an extension of time for what was now a very late application for permission to appeal without any good reason for the delay, particularly where the ground appeared to have little arguable merit. At the hearing, Mr Malik KC did not pursue the application for an extension of time or the application for permission to appeal and for the avoidance of doubt, we formally refuse both. It was open to the First-tier Tribunal to find that the Appellant had resided continuously in the United Kingdom between 2014 and 2019 in circumstances where the Appellant had not specifically declared that he had not had any relevant absences during that time. The First-tier Tribunal considered all of the evidence of residence in the round, including of employment, access to health services and detention and reached a conclusion which was unarguably lawfully and rationally open to it on that evidence. The appeal has therefore proceeded on the basis of grounds one, three and four only, which we address in turn below.

36.

We are grateful to Counsel for their helpful skeleton arguments and oral submissions on the remaining grounds, which we refer to in summary below.