EEA national convicted of vandalism wins appeal against ‘disproportionate’ deportation order

The Inner House of the Court of Session quashed the order after ruling that it was not open to the First-tier Tribunal to find that the appellant’s conduct constituted “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.

Lady Paton, Lord Brodie and Lord Glennie heard that the appellant “SA” had been in the UK since 2013, was in employment and had an ongoing relationship with a UK national.

Index offence

The matter which brought him to the attention of the Secretary of State for the Home Department was a conviction at Hamilton Sheriff Court for vandalism, with what was described by the FTT as “a domestic abuse aggravator”, for which he was fined £100.

The evidence was to the effect that there was an argument between the appellant and his partner’s sister, in the presence of the appellant’s partner, and then he broke a window.

The FTT considered the resultant conviction for vandalism in the light of the appellant’s previous convictions in Romania, listed in the Secretary of State’s decision letter of 2 June 2016, which were: 2001, theft; 2003, theft; 2004, illegal possession in public places of offensive weapons.

What the FTT had before it was evidence of the breaking of a window in the context of a domestic argument, which it described as “a conviction for an offence against a person”.

But the judges observed that that was not in fact borne out by the conviction itself, which was for vandalism, ie the breaking of a window in the context of a domestic argument.

On behalf of the Advocate General it was argued that the index offence, when taken with the previous Romanian convictions, demonstrated a “propensity to reoffend involving violence”, which was the approach and conclusion adopted by the FTT in its decision dated 16 August 2016.

‘Irrational decision’

However, the court described that approach and conclusion as “irrational” for four reasons.

Delivering the opinion of the court, Lady Paton said: “First, the offence of causing damage to property does not suggest any propensity to commit violence against a person. Secondly, the offence of causing damage to property does not suggest any likelihood of a recurrence of the type of offending which took place in Romania. In fact, the Romanian offences are wholly dissimilar. Thirdly, the index offence was, as the FTT itself recognises, ‘not a particularly serious offence’. Fourthly, the Romanian offences were more than 10 years old.”

The court observed that the FTT’s decision demonstrated “apparent confusion” in relation to the question of onus of proof.

It was accepted that the burden of proof was on the Secretary of State, but the FTT’s decision stated that the burden was on the appellant, which the Upper Tribunal described as an “immaterial slip”.

However, the judge considered that this proposition “influenced its whole approach to the decision-making process”.

‘Wholly disproportionate’

The court also noted that the FTT had considered question whether the personal conduct of the appellant represented “a genuine and sufficiently serious threat” affecting one of the fundamental interests of society.

But the relevant regulation, regulation 21(5)(c) of the Immigration (European Economic Area) Regulations 2006, speaks of “a genuine, present and sufficiently serious threat.”

In other words, the FTT has omitted a material word, namely “present”.

Lady Paton said: “This, combined with the previous point, results in a background of uncertainty when considering the framework within which decisions were to be made. “

“Accordingly,” she added, “having regard to the information before the FTT, we consider that it was not open to it to find that the personal conduct of the appellant represented ‘a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’ (regulation 21(5)(c)). In addition, it is our view that deportation in these circumstances would be wholly disproportionate, contrary to regulation 21(5)(a).

“Accordingly we are of the opinion that the UT erred in law in (i) failing to regard the confusion over onus and the omission of the word ‘present’ as not constituting a material error of law; (ii) failing to hold the irrationality argument to have foundation.”

Allowing the appeal, the court held that both the FTT and UT “materially erred in law” and therefore quashed the deportation order.