SM (Bulgaria) v Secretary of State for the Home Department

LORD JUSTICE McCOMBE: This is a renewed application for permission to appeal to this court from a decision of the Upper Tribunal (Immigration and Asylum Chamber) of 7th July 2014, setting aside a previous order of the First Tier Tribunal of 20th May 2011, re-making that decision and dismissing the applicant's appeal from a decision of the Secretary of State to make a deportation order against the applicant. By an earlier decision of 19th January 2012, a differently constituted Upper Tribunal had held that the First Tier Tribunal's original decision had erred in law and that the appeal should be re-heard in full by the Upper Tribunal itself.

The applicant is a Bulgarian national, born on 14th August 1968, therefore now I think 48 years old. He arrived in the United Kingdom illegally, bearing a false passport, in July 1999. He married a British citizen, called in the proceedings below by the letter "C", in 2000. He returned to Bulgaria and applied formally to join his wife in the United Kingdom. The application was granted on 20th August 2001 and he was granted then indefinite leave to remain.

On 18th June 2004 he was convicted of a number of offences relating to the importation and supply of illegal drugs and was sentenced to a total of 18 years' imprisonment. The papers indicate that drugs to a street value of about £1 million were said to have been involved. He had been arrested for the offences in January 2002, i.e. he had had leave to remain for just over a year at the date of the arrest, when he was taken into custody. He remained in custody until released on licence in 2011. I am informed by Mr Lewis, who appears for him today, as he has through most of these proceedings, that the licence is due to expire in 2020.

The applicant had previously been married in the United States and had been dealing in drugs in Los Angeles before moving his enterprise to the United Kingdom. He had been arrested in the United States and had absconded from bail, ending up in the United Kingdom via a return to Bulgaria, as I say, in 1999. After his incarceration in this country, the US authorities appear to have lost interest in his offending there and there seem to have been no further attempts at extradition.

The applicant has a son, now aged 13, born in August 2002, shortly after his arrest and entry into custody. During the course of his imprisonment it is said that his son visited the applicant with his then wife. That marriage, however, had ended in divorce, a relationship that had foundered no doubt because of the entry into custody, after about five years in about 2004. It seems that the ex-wife and the son maintained contact with the applicant after his release from prison in early 2011 and they remained on friendly terms. As a group, they had been based originally in Doncaster, but the applicant came to London in the hope of better chances of work. However, the applicant's ex-wife became effectively confined to the Doncaster area in September 2013, when her mother was diagnosed with a serious illness.

It is to be noted that the applicant's probation officers, in May 2011 and May 2012, assessed the applicant as posing a low risk of re-offending. Before the tribunals the applicant also relied upon a report by a well-qualified expert who made a similar assessment of the applicant's likelihood of re-offending.

It was argued before the First Tier Tribunal that removal of the applicant would be disproportionate, bearing in mind his protection from removal as an EU citizen from removal from other EU states. He also relied at that stage -- I assume for the moment also -- upon his family and private life protected by Article 8 of the Convention. The First Tier Tribunal accepted those arguments and allowed the applicant's appeal.

The initial panel of the Upper Tribunal, presided over by the Vice President, Mr Ockelton, considered that that decision was erroneous and ill-reasoned and had failed to give proper account to the seriousness of the applicant's offending. They directed the re-hearing of the appeal.

Before the Upper Tribunal, on the new hearing, full evidence was re-heard, including from the applicant himself. The Tribunal bore in mind the lengthy period of incarceration which fell to be deducted in any assessment of the period of the applicant's presence in the United Kingdom; so that from the period from 1999 to 2014, when the matter was before that Tribunal, the period from 2002 to 2011 had to be deducted, i.e. nine out of the 13 or 14 years of presence. The Tribunal also considered that the applicant's leave to remain was effectively revoked by the combined effect of regulation 24 sub-regulation (3) and section 5(1) of the Immigration Act 1971.

That conclusion is criticised by Mr Lewis, in his helpful arguments for the applicant, on the basis that such an effect would only be achieved by the making of a deportation order, and not a mere decision to make such an order. Mr Lewis recognises in his main skeleton argument on the appeal that if his argument on this point is correct, it does not give rise to a status of permanent residence as derived from the EU regulations, but is a relevant factor. Of course, it is also a relevant factor that a deportation order was about to be made.

The Upper Tribunal did not accept that the risk of re-offending was low in view of what, reading the decision, seems to have been its view of the applicant's deep-seated past offending, both in the United States and in this country. Given the threat of deportation, the Upper Tribunal thought that the absence of offending since release in 2011 was a less weighty factor in the applicant's favour than might perhaps otherwise have been the case. On release, the probation report had assessed the applicant as having a medium risk of re-offending. Mr Lewis has taken me to passages this morning showing that that more adverse assessment was qualified by steps that might be taken (and indeed, as he submits, have been taken) to lower the risk presented by the applicant and that the Upper Tribunal has, in effect, failed to have proper regard to the professional material on the risk of re-offending, which he submits, no doubt correctly, is an important factor in this case.

The Upper Tribunal considered that the applicant presented a "continuing danger to society" (the phrase they used). It considered the applicant's close relationship with his son. However, it concluded that the proportionality analysis did not lead to the family factors outweighing the serious threat to the interests of society posed by the applicant, including what it perceived to be a continuing relevant risk of re-offending.

On these materials, Mr Lewis for the applicant maintains three points which were rejected on the initial consideration of the case on the papers by Rafferty LJ. Those three points were these. First, he said that the Upper Tribunal's first decision that the First Tier Tribunal's conclusions were erroneous in law was itself erroneous. I was not prepared to entertain argument on that point given that the substance of the matter was an appeal against the decision made by the Upper Tribunal itself: that was what the appeal is, not an appeal from the more historic decision directing a further appeal in this case. Secondly, Mr Lewis said that the Upper Tribunal wrongly assessed the materials directed to the applicant's risk of re-offending, the outline of that I have already given in what I have said so far in this judgment. Thirdly, he submits that the Upper Tribunal got the law wrong about the effect of the applicant's leave to remain constituted by the decision to make a deportation order for the reasons that I have endeavoured to identify. Thus, he says, in his written arguments, it demonstrates an inherent flaw in the Upper Tribunal judge's understanding of the relevant law.

The question for me is whether this appeal, given those points, raises an important point of principle or practice or whether there is a compelling reason to permit the second appeal. Mr Lewis submits that of course in this case this was one where the Upper Tribunal became the primary fact finder, and I note of course that this is not a case of two previous decisions adverse to the applicant since the Upper Tribunal reversed a decision in the applicant's favour. That is no doubt also a matter to be taken into account.

However, for my part, I do not find that this proposed appeal does satisfy the second appeals test on any of the bases carefully suggested by Mr Lewis, to whose argument I pay compliment.

As to Mr Lewis' first point, I have already dealt with that: this is an appeal against the substantive decision of the Upper Tribunal, not the order directing a re-hearing.

As to the second point, the simple fact is that the Upper Tribunal took a decision, in my judgment, on the facts, balancing the various considerations. That decision was adverse to the applicant. One can see the arguments that might be ranged against the correctness of the decision that was taken. That does not give rise, in my judgment, to any important point of principle or practice. Nor do I find a compelling reason for a further appeal to this court on what was essentially pure questions of fact taken by the superior specialist tribunal. Factual appeals of this sort are precisely the type that the second appeals test is designed to exclude from this court.

In any event, here we have a serious offender, a drugs importer and dealer, present in the United Kingdom for 15 years, of which nine have been spent in custody. He had a relationship with a 13-year-old son which was close, but hardly resembled family life at all, let alone family life outweighing the obvious detriment to the UK society posed by his likelihood of re-offending as assessed by the senior tribunal. His type of offending is precisely the type to be met by deportation orders, which should take effect absent the most compelling reasons.

This renewed application is therefore refused.