Daha Essa v The Secrtary of State for the Home Department

The background to this appeal is set out in the Ruling and Directions (Annex 1 to this determination) that the panel issued on the 24 April 2013 following the hearing of the previous day. By that ruling we concluded that the panel of the First-tier Tribunal who dismissed Mr Essa’s appeal against deportation on the 18 April 2011 had made a material error of law. We indicated that the appeal would be remade by the Upper Tribunal on the 18 June 2013 with the findings of fact made by the First-tier Tribunal preserved with the exception of its decision on the risk that the appellant presented to the public and his prospects of rehabilitation. We further indicated the material that we concluded would be helpful in determining this whole appeal and directed that the Home Office respond to the appeal by 4 pm on 4 June 2013.

The appellant provided within the relevant time, an updated report from Mrs Davies the expert instructed in 2011, although little information had been provided by the Probation Service as anticipated in Direction 38 (b). No information of any kind had been received by the Home Office by 4pm on the 4 June 2013.

On the 11 June 2013 the Tribunal received a letter from Mr Allan who had previously represented the Secretary of State. It sought a short adjournment of the case listed for the 18 June 2014 because:

The appellant’s solicitors understandably objected to this application that was in due course refused and has not been renewed before us on the date of the renewed hearing. We are surprised that the application was made when it was. It must have been perfectly apparent to the Secretary of State long before the 23 April 2013 that this was an important case. It represented a decision by the Court of Appeal setting aside a refusal of permission to appeal by the Upper Tribunal on the basis of a novel issue of EU law. Any such decision of the Court of Appeal raises second appeal criteria and is almost certainly bound to contain an important issue of law. The Secretary of State was represented at a contested hearing by counsel at the Court of Appeal, but chose to be represented by Mr Allan a Senior Home Office Presenting Officer before us. If it had been intended to instruct counsel in the event that Mr Allan’s submission before us on the 23 April 2013 that remaking was not necessary failed to carry the day, we should have been told then and not subsequently.

We are further dismayed that no regard was had to our directions until very late in the day. We announced our decision on the hearing of the 23 April 2013 that the appeal would be re-made because it contained a material error of law and heard observations by both parties upon a potential time table that was set in order to bring this long standing deportation appeal to conclusion, but to give a reasonable opportunity to both sides to file all the material that we thought would be needed to enable us to properly remake this decision.

Written directions setting out what had already been spelt out orally were sent thereafter to remind the parties of the directions we had given orally but the timetable had started from the date on which the directions were first given on the 23 April 2013. If the Secretary of State fails persistently to adhere to directions and fails to give the Tribunal the assistance it needs on certain questions, then she cannot complain if the matter proceeds when a reasonable opportunity to provide assistance has expired.

As it is Mr Allan recognised that the failure to adhere to the directions meant that no fresh information had been provided by the Home Office, and no indication given of a wish to cross examine any of the witnesses called by the appellant. In the circumstances the opportunity to probe some factual issues was expressly waived.

We once again remind the Secretary of State of her obligation under rule 2(4) of the Upper Tribunal Rules 2008 to assist the Tribunal in pursuing the overriding objective of economical, fair and efficient disposal of these appeals in a prompt time scale. Ignoring such directions until the last possible moment is a breach of such a duty and is very likely to lead to less weight being given to the Secretary of State’s case than it otherwise might have been.

In the event Mr Allan did produce a helpful skeleton argument the night before the hearing for which we are grateful. That skeleton made plain that it was accepted positively by the respondent that Mr Essa a Dutch national of Somali origin has achieved a right of permanent residence before the conviction giving rise to these proceedings had arisen.

Having regard to the oral submissions of both parties we conclude the following issues arise for determination by us:-

At what point in the proceedings does the Tribunal decide whether the highest level of protection afforded by Article 28(3) of Directive 2004/38/EC applies?

When does the duty to facilitate rehabilitation arise?

What is the appropriate decision in this remade appeal having regard to the present state of the evidence and the principles of EU law?

It will be seen from the facts set out in the ruling that the appellant has been in the UK for approximately 12 years (depending on his month of entry in 2001). It would appear that he could argue that imperative grounds of public security should now apply to him as he has at the date of hearing before us, “resided in the host state for the previous ten years” (see Article 28 (3) (a) Citizens Directive).

Mr Allen’s first submission in response was that Mr Essa could not prove residence for the previous ten years because of his criminal sentence. He was first detained for the index offence in April 2007 and spent some 50 days on remand in custody. In June 2008 following conviction after a trial he was sentenced to five years detention in a young offenders institution. He had completed his custodial term on 23 October 2010. He was then held in immigration detention until February 2011 when he was released on bail subject to his licence conditions. If you remove the 30 month period of detention as a prisoner from the period of 12 years residence in the UK Mr Essa’s length of present residence is less than 10 years. Second, the imprisonment as a criminal offender breaks the continuity of his residence so even if he had achieved ten years residence outside penal custody, it was not for the previous ten years.

In the case of Jarusevicius [2012] UKUT 124 IAC the Upper Tribunal expressed the opinion obiter , that a period of criminal detention could not break the continuity of residence for the purpose of imperative grounds as otherwise no person who faces expulsion within ten years of his release from such a sentence could rely on imperative grounds, and the Court of Justice would not have delivered its opinion on imperative grounds in Case C-145/09 Land Baden-Wurtemberg v Tsakouridis [2011] CMLR 11.

Shortly afterwards the Court of Appeal decided the case of FV (Italy) [2012] EWCA Civ 1199 where a claimant had resided for 22 years in the United Kingdom, was convicted of manslaughter and sentenced to eight years imprisonment and had served a sentence of over four years between 2001 and 2006 before a decision to deport him was taken in 2007. It had been previously conceded that the claimant lawfully resident for more than 10 years, had a right of permanent residence and so the test of imperative grounds applied (Footnote: ¹) .

The Secretary of State sought to withdraw this concession relying on a sequence of domestic authorities and the principle of two years absence in Article 16 (4). We set out the relevant passages at Annex 2. Reviewing the authorities including the observations in Jarusevicius, the Court of Appeal concluded that the period of imprisonment did not break the continuity of residence for the purpose of applying the imperative grounds, and neither should the period of imprisonment be automatically discounted from the total length of residence. The question was whether a person who had achieved a right of permanent residence remained integrated within the host state or had acquired another centre of personal life outside it (Pill LJ at [85] and [86] and Aikens LJ at [126]).

Mr Allan reminds us that two references have been made to the Court of Justice by this Tribunal addressing in different ways the question of the effect of imprisonment on residence rights namely: Case C-400/12 MG and Case C-378/12 Onuekwere . Decisions in these cases are outstanding at the time this determination is being made. We recognise that the decisions in these two cases may lead to further guidance that requires the principles we will set out in this decision to be revisited. However, in the light of the case law discussed in FV (Italy) a recent decision of the Court of Appeal made after the orders for reference in MG and Onuekwere , we conclude that we can identify the basis of decision making in this field of law that should be applied by judges of the First-tier and Upper Tribunal unless the Court of Justice or a higher court provides guidance to the contrary.

For ease of reference we will borrow from regulation 6 of the Immigration (European Economic Area) Regulations 2006, the term qualified person to describe a national of an EEA state who is undertaking an activity that gives rise to lawful residence under the Citizens Directive after the expiry of the initial entry period of three months. We abstract from the case-law the following principles:

Permanent residence within the meaning of Articles 16 to 18 of the Citizens Directive requires the claimant to be continuously lawfully resident under EU law, that is to say is residing in the host state as a qualified person or the family member of a qualified person for a period of five years.

In determining whether permanent residence is acquired voluntary absences from activities that make a person a qualified person may break the continuity of residence applying the provisions of Article 16 (3). Periods of enforced military service do not break the continuity of such residence.

Periods of penal custody following conviction and sentence and periods of remand in custody that are followed by conviction and a sentence of imprisonment do not contribute to the acquisition of permanent residence by a claimant who was a qualified person shortly before the period of detention. The claimant is not employed, self sufficient etc during these periods and imprisonment is not considered as contributing to the claimant’s integration in the host state.

Periods of wrongful detention, pre-trial remand that lead to an acquittal or a non-custodial sentence, or periods of immigration detention can count towards permanent residence if the claimant qualifies before and after the detention in question.

If a cumulative period of five years residence as a qualified person has been achieved by the claimant discounting periods of penal custody, it is uncertain whether such a term will break the continuity of residence for the purpose of acquiring the right of permanent residence. By reference to the developing principles relating to ten years residence, the indications are that it may not do so.

If permanent residence has been acquired but a custodial sentence is served in the period of residence between years five and ten, then the period of residence in prison may be counted towards the ten years if the person concerned remains integrated with the host state by reason of home, employment, family and social nexus.

Once a period of ten years lawful residence in the host state has been acquired, a custodial sentence does not break the continuity of residence up to the date of the decision to deport.

For the avoidance of doubt, we should indicate that it is now clear, earlier decisions to the contrary notwithstanding, that residence that straddles the coming into force of the Directive or preceded membership of the EU by the claimant’s state of origin can be taken into account, as long as the time for transposing the Directive into domestic law has passed and the claimant is an EEA national with free movement rights at the date of the relevant decision (see Case C 424/10 Ziolkowski [2011] CJEU at [61] to [63].

Applying these principles to the primary facts in this case, we note that the appellant has been resident in the United Kingdom since 2001 and the age of 12. He was admitted as the dependent child of an EU qualified person and has remained dependent in whole or in part on his mother with whom he resides when at liberty ever since.

It is accepted that he acquired permanent residence before April 2007, and we can find no indication in the evidence that he has ceased to be integrated in the United Kingdom, has acquired new links abroad, or has been out of the United Kingdom for a period of two years or more. We conclude that in assessing his length of residence for the purpose of identifying the relevant test to be applied in his case, the whole of his residence from 2001 until the date of the decision to deport can be taken into account, including the thirty months of the custodial term of his sentence.

FV (Italy) and the authorities cited therein, identify the date of the decision to deport as the basis for assessment of the relevant criteria and the calculation of relevant residence is made by working back from that date. The date of the decision to deport is October 2010 and thus a few months short of 10 years from whichever date he entered in 2001.

Accordingly, the level of protection against expulsion afforded to the appellant is that identified by Article 28 (2) of the Directive: serious grounds of public policy. However, in assessing private life, degree of integration, present risk and/or degree of rehabilitation the Tribunal can receive post-decision evidence (see s.85(4) NIAA 2002 and the decision of the UT in Boodhoo and another (EEA Regs: relevant evidence) [2013] UKUT 00346 (IAC)). We are conscious that where a passage of two years has expired since the first decision was made to deport, the Citizens Directive Article 33 (2) requires the Member state to check that the individual is currently and genuinely a threat to public policy and there have been no material change of circumstances.

As we observed in our ruling and directions the Court of Justice in Tsakouridis used the term ‘genuinely integrated’ to describe those for whom the prospects of rehabilitation were a relevant issue in the assessment of the balance.

Tsakouridis was a case where the Court examined the issue of imperative grounds relating to those who had resided in the host state for ten years or more. The Court of Appeal in the instant case did not elaborate on whether the principles apply generally or only to those who had permanent rights of residence. As the case below was determined on the basis of an assumption that the appellant had rights of permanent residence, we conclude that the Court of Appeal did not consider that only those with ten years residence could benefit from the principle.

In our directions for remaking, we invited the parties to consider the matter and suggested that the test was genuine integration rather than the precise number of years of residence. Mr Allan’s skeleton argument disputed that proposition and suggested that genuine integration was not a novel test but only shorthand for the structured approach based on length of residence.

We agree that the Court’s reference to genuine integration must be directed at qualified persons and their family members who have resided in the host state as such for five years or more. People who have just arrived in the host state, have not yet become qualified persons, or have not been a qualified person for five years, can always be removed for non-exercise of free movement rights irrespective of public good grounds to curtail free movement rights. If their presence during this time makes them a present threat to public policy it would be inconsistent with the purposes of the Directive to weigh in the balance against deportation their future prospects of rehabilitation.

If they achieve rehabilitation on return to their state of origin with whom they have not yet lost links then they can always apply to revoke the deportation order against them that would otherwise prevent them exercising free movement rights in the host state in the future.

However, we conclude that it is not necessary for the claimant to have resided 10 years, although the longer the residence the greater the degree of integration is likely to be, and the weightier the prospects of rehabilitation would be as a factor against removal. We observe that the EU permanent right of residence means what is says. After it is acquired it is no longer necessary for the EEA national to be a qualified person exercising an economic activity or self sufficiency in order to qualify for residence.

In the light of the Secretary of State’s express recognition that Mr Essa acquired permanent residence before April 2007, we do not need to explore the difficult questions that may arise at the periphery of the decided cases.

The problem area concerns those EEA nationals and their family members who have been resident in the host state for five years or more but who have not been engaging in activity that makes them a qualified person for a continuous period during that period. They may have resided in the host state for many years beyond the minimum five years and achieved a substantial degree of integration there and loss of contact with their state of origin. We will reserve the question of whether the prospects of rehabilitation can be a factor in these cases for future consideration.

We accept Mr Allan’s further submission that even in a case where it clearly applies as a consideration, such as the present one, the prospects of rehabilitation are only one factor and not a determinative consideration. Since this is a novel principle to be applied by judges of both chambers without much substantive guidance we have considered the issues at a level of generality before applying the following principles to the case in hand.

We observe that for any deportation of an EEA national or family member of such national to be justified on public good grounds (irrespective of whether permanent residence has been achieved) the claimant must represent a present threat to public policy. The fact of a criminal conviction is not enough. It is not permissible in an EEA case to deport a claimant on the basis of criminal offending simply to deter others. This tends to mean, in case of criminal conduct short of the most serious threats to the public safety of the state, that a candidate for EEA deportation must represent a present threat by reason of a propensity to re-offend or an unacceptably high risk of re-offending. In such a case, if there is acceptable evidence of rehabilitation, the prospects of future rehabilitation do not enter the balance, save possibly as future protective factors to ensure that the rehabilitation remains durable.

It is only where rehabilitation is incomplete or uncertain that future prospects may play a role in the overall assessment. Here we must take our guidance from the Court of Justice in Tskouridis and the Court of Appeal in the present case remitting the matter to this Tribunal. It is in the interests of the citizen, the host state and the Union itself for an offender to cease to offend. This is most likely to be the case with young offenders who commit a disproportionate number of offences, but many of whom will stop offending as they mature and comparatively few of whom go on to become hardened criminals and persistent recidivist offenders. We can exclude consideration of offenders beneath the age of 18 as EEA law will prevent their deportation save in the unusual event that it is in their own interest (Article 28 (3) (b) of the Citizens Directive).

If the very factors that contribute to his integration that assist in rehabilitation of such offenders (family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like) will assist in the completion of a process of rehabilitation, then that can be a substantial factor in the balance. If the claimant cannot constitute a present threat when rehabilitated, and is well-advanced in rehabilitation in a host state where there is a substantial degree of integration, it may well very well be disproportionate to proceed to deportation.

At the other end of the scale, if there are no reasonable prospects of rehabilitation, the claimant is a present threat and is likely to remain so for the indefinite future, we cannot see how the prospects of rehabilitation could constitute a significant factor in the balance. Thus recidivist offenders, career criminals, adult offenders who have failed to engage with treatment programmes, claimants with impulses to commit sexual or violent offences and the like may well fall into this category.

The difficult category will be those offenders with mental health issues that medical science considers to be treatable, and who are receiving the appropriate treatment but whose prospects of rehabilitation are somewhat distant at the date of assessment. Although the Court of Appeal have made clear that there is no general duty on the Secretary of State to explain positively how deportation would assist rehabilitation, the interface of criminal law, mental health law, immigration and free movement law make it likely that this will be an era where tribunal judges will need particular information as to the consequences of deportation for the individual. If a proven treatment programme is interrupted with adverse effects on future prospects, if the claimant is transferred from a secure environment in the host state to an insecure one outside it, if facilities elsewhere are sub-standard and ineffective, these may well be factors against deportation. If the conduct is at the highest level of dangerousness, if prospects of future release are years away and speculative, if the conduct or the illness has resulted in the loss of the kind of social ties that sustain integration, and there are appropriate facilities in the state of origin to which the claimant could be transferred, it may well be that the balance comes out in favour of removal, and the social costs to the host state of the long term detention and treatment of such offenders may be a factor in that balance.

The most detailed accounts of the appellant’s conduct and attitude before, during and following his sentence come from the two reports of Ms Davies the Chartered Forensic Psychologist dated 23 March 2011 (44 pages excluding appendices) and an addendum of 20 May 2013 (23 pages). Ms Davies has assessed the information that she has gathered using the Historical Risk Management Tool (HCR-20) developed in 1997 to assess risk of violence (‘actual attempted or threatened harm to a person or persons’) for which she gives the literature reference. This assessment examines 20 factors under the headings: historical risk factors (10), clinical risk factors (5), risk management factors (5) and protective factors (5) before going on to make an overall assessment of risk. She explains that historical factors are the more static and unchanging ones, whilst clinical factors are more dynamic in nature and associated with the possibility of change. In the most recent report she has produced a sequence of tables designed to show changes between 2011 and 2013. Mr Allan was able to demonstrate that there were some errors in Table 2 C4, Table 3 R1 and R2, that might distort the progress made. During the course of the hearing Ms. Davies was able to email the appellant’s instructing solicitors and acknowledge that the errors were in the tables rather than the discussion of the factors in the report and she confirms her overall opinion of risk having regard to them.

We found Ms Davies’s report to be reliable and helpful. She was clearly comprehensive and objective in her assessments, explained her methodology and terminology, and had the benefit of considering data obtained from prison and probation service.

By contrast the report by Ms Meadows the offender manager was shorter (8 pages), more of a pro-forma summary of scores than a personal assessment, and undated although it must have been in existence before November 2010 and apparently based on an OASys assessment last conducted 26 March 2010. Judges of both immigration chambers who do not also sit as criminal judges or have extensive knowledge of the tools used by the National Probation Service may need a little more by way of background information to be able to evaluate such material. Although we understood there are sound management reasons why the full data extracted in an OASys assessment is not provided to the offender, what would be valuable to a judge considering risk factors is the extent of any progress made during the sentence and licence period, and any material shift in OASys assessment that we understand from the London Probation trust at least to be conducted regularly at intervals of between 6 months and 12 months. The failure to properly understand such reports is not limited to the untutored judiciary. Mr Allan accepts that the observation in the Home Office decision letter of 20 November 2010 that the overall score of low risk of offending ‘conflicts with the written comments of the offender manager’ was inappropriate. It is perfectly possible to have an overall assessment of low risk of offending despite the presence of historic risk factors and initial disruptive behaviour in prison; there is no conflict with the assessment made in the same report, that the risk of potential harm to the public, were the offender to commit a future violent offence, is high.

We accept that the overall assessment is whether the risk of serious harm to the public by the claimant re-offending is sufficiently high to be unacceptable in all the circumstances, in which case the offender remains a present risk to public policy.

However, by far the biggest problem with the data available to us emanating from the Probation Service is that it is out of date. No fresh assessment has been conducted since 2010, and the limited up date information contained in the correspondence that the appellant’s solicitors have had with the probation service does not tell us much other than there was no unexplained failure to report to the licence officer, no offending or breach of licence conditions. We are unable to resolve a factual issue live in 2010 whether the claimant had failed to take up a victim awareness course or whether on reflection it was considered not appropriate that he be offered such a course.

We are disappointed not to have had the benefit of a more thorough assessment from the Probation Service of his behaviour on licence but we must decide the case on the materials available to us and this we now do.

We take account of the witness statements of the appellant and his family and the fact that there has been no application made to cross examine any of the makers. They present a consistent picture.

The appellant was born in October 1988 and was 12 when he arrived in the UK to reside with his mother and a number of other siblings in 2001. He attended school and left with seven or eight GCSEs and started at college before his arrest on the index offence

He was 18 when he committed the index offence of knife point robbery in January 2007, and by that stage he had one previous conviction aged 17 for handling stolen goods. He contested his guilt at trial; showed no remorse or awareness of the terrifying nature of his conduct on his victim who was trapped in an empty railway carriage at the time of the events. He continued to deny guilt for some time after sentence.

From April 2007 to October 2010, he was in detention on remand or serving the custodial part of his sentence of five years detention in a young offenders’ institution. From the data we have been provided with from his successive prisons, he seems generally to have been regarded as polite, well mannered, cooperative and was given enhanced status, however there have been a number of adjudications for un-cooperative and abusive behaviour including a number of warnings whilst he was at HMP Highpoint in 2010.

In 2010 before completion of his custodial term his offender manager assessed that there was some suspicion of inappropriate life styles prior to April 2007 and the offending indicates reckless and risk-taking behaviour.

He had only been released on bail for some two months when he came before the First–tier panel in March 2011 who were not convinced that his recent behaviour was motivated by factors other than to avoid deportation and would be durable.

He has successfully completed his period of licence from February 2011 to April 2013. He has complied with the terms of his immigration bail since February 2011 including being detained on two occasions in 2011 and 2012 when it was anticipated that his removal was imminent. He has had some employment since his release but he states that the uncertainty as to his future and his recall to immigration detention have interrupted the prospects of stable employment for the time being.

We have no doubt that Mr Essa constituted a serious threat to public order when he committed the index offence and was sentenced in June 2008. He had committed a robbery by threatening his victim with a knife with a six inch blade. He did not use the knife to cause physical injury and was not considered a dangerous offender by the trial judge. However, possession of such weapons in a public place itself constitutes a threat to public order, and potentially a serious one. He remained in denial about his conduct and the threat that he represented to others and the risk of harm to others if he committed a future violent offence was sufficiently serious and insufficiently mitigated by insight and rehabilitation to make him eligible for deportation.

He had made significant advances in his rehabilitation by the time he appeared before the panel in March 2011, although it was faced with a difficult issue of assessing how far those advances were durable.

There have been further substantial advances between March 2011 and June 2013. We summarise them:

He has complied with his conditions of licence and bail even when he faced the threat of imminent removal.

He has remained at home with his mother and continued to have close contact and support from his siblings and wider family.

He has acknowledged his guilt; the impact of his offending on others, and the need to sustain a law abiding and responsible life style. Ms Davies was satisfied that he has improved victim empathy. We note however that he has continued to minimise guilt in that he still denies to Ms Davis that he was actually in possession of a knife as opposed to pretending to the victim that he had a knife.

He has taken some employment although there is substance in his observation that it is difficult to enter stable employment in his precarious circumstances.

He has recently (January 2013) started a relationship with a girl friend that may prove to be durable and a source of stability, although Ms Davies discounts such a relationship as a protective factor until it has lasted 12 months.

Ms Davies’s overall conclusion is that his risk of re-offending has reduced and she now considers him to be a low risk of violent recidivism and in the low risk range for general recidivism and at the current time presents a low risk of harm to others. She gives an indication of the kind of warning signs that would be apparent if there was deterioration in this prognosis including inappropriate peer group associations, feeling under pressure to prove himself, reporting that he is being unfairly treated, poor emotional management evidenced by verbal outbursts (9.2.1). There is no evidence of substance abuse, mental illness, psychopathy or personality disorder (5.1.10 to 5.1.13). Among the factors that Ms Davies identifies as of significance in this assessment are:

There is no countervailing information or assessment since March 2011. We conclude that, with the benefit of the 27 month period since the panel examined his case, his progress and family support has been proven to be genuine and durable. His remaining family in the Netherlands have not played the same kind of role in his life that his mother, siblings and more extended family have in the United Kingdom.

He is now 24 years of age and we are satisfied more mature and aware of the consequences of his actions than he was in 2007. We are aware that his licence period has concluded and if he succeeds in this appeal neither the discipline of immigration bail nor the prospect of undermining his appeal will operate as a control factor in the future. We agree with Ms. Davies’s assessment that deportation would undermine important aspects of his support network and progress to date, and would remove an incentive to durable rehabilitation that exists while he remains in a host state. He can be under no doubt what the consequences would be if he offends in the future.

We recognise that there is room for further progress in employment, personal relationships, and independent living but the support factors to encourage him to develop stability in these aspects of his life are stronger in the United Kingdom than the Netherlands.

Making our own assessment on the material now available to us we conclude:-

The appellant would constitute a threat to public policy in this case if he were to commit a future violent offence. We consider that the current assessment of the risk of his doing so is low and this assessment has been tested by his release into the community for over two years.

The appellant has resided in the United Kingdom for 13 years and just over half his life. He has strong family connections here and is well integrated. His prospects of preserving and developing his rehabilitation are significantly improved by continued residence here. Deportation to the Netherlands would remove important support factors and incentives to behave and would appear to be positively detrimental to his future rehabilitation.

In all the circumstances of his case, deportation now for the conduct leading to his conviction would be disproportionate.

We accordingly re-make the appeal by allowing it. Both members of the panel have contributed to this decision