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Enhanced Protection in European Deportation Case

Our client is a Lithuanian national (EEA national). He was sentenced for the imprisonment of 15 months after having been convicted for Assault to Severe Injury. The Home Office made a deportation order against him. His previous solicitors based in Glasgow appealed the deportation order but thereafter stopped acting for him He engaged us just a week before the appeal hearing. We requested his previous solicitors to provide us with all his documents with them and also requested the First-tier Tribunal to grant us an adjournment so we could obtain his employment history from HMRC and all his documents from his previous solicitors in order to compile an appeal bundle in support of the appeal. The First-tier Tribunal refused our request to grant an adjournment and proceeded with the appeal hearing. We had complied an appeal bundle with whatever documents our client could provide as he had lost many of his employment documents from the past years which is understandable as he has been in the uK since 2005 and has had moved many houses. The presenting officer representing the Home Office at the appeal hearing accepted that our client had acquired permanent residence before he was sentenced to imprisonment. Therefore, he is entitled to midlevel protection afforded under Regulation 27(3) of the Immigration (European Economic Area) Regulations 2016. However, he did not accept that our client has been in the UK for more than 10 years before he sentenced to imprisonment. Our argument was that as our client had acquired permanent residence, he cannot be removed as the evidence on record confirmed that he has been in the UK for more than 10 years, therefore, he is entitled to enhance protection under Regulation 27(4) the Immigration (European Economic Area) Regulations 2016. If the Judge was not convinced with this argument, then our alternative argument was that our client's offence was not serious enough to be deported as his permanent residence entitled him to midlevel protection. The judge dismissed our client's appeal holding that he was not convinced that our client was in the UK for more than 10 years and that even if he had acquired permanent residence, his offence is serious enough to be deported from the UK. We made an application for permission to appeal to the Upper Tribunal along with an application for consideration of fresh evidence as by then we had received our client's employment history from HMRC confirming that he was working in the UK since 2005. The Tribunal judge considering our application for permission to appeal set aside the decision of the First-tier Tribunal under Rule 35 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 that dismissed our client's appeal, and the Judge directed our client's appeal to be reheard by the First-tier Tribunal. Interestingly, in the meanwhile, the Home Office detained our client to remove him to Lithuania. The basis of this removal was that his removal is not suspended while his appeal his pending a decision. We made a representation to the Home Office bringing to their attention their own policy guidance available at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/635692/regulations-33-and-41-v6.0EXT.pdf . Please see page 10 of the said guidance. The relevant portion is produced below:

“As a matter of policy, removal decisions pursuant to regulation 23(6)(b) where the person has a right to permanent residence and the person has not been sentenced to a period of imprisonment of at least four years will not normally be certified under regulation 33. However, consideration of whether or not it is appropriate to certify must be given to all cases on an individual basis.”

It’s an undisputed fact that the appellant has permanent residence and only 15 months of the sentence which is much less than 4 years as required as per the above guidance. We also sent to the Home Office the decision of the Judge setting aside the dismissal of the appeal. The Home Office in view of our representation withdrew the removal direction against our client and released him from the detention. He was already being sent to London for his removal. His family was very happy to have him back.

The fresh appeal hearing before the First-tier Tribunal was fixed for next week. However, the Home Office lawyer requested the tribunal an adjournment to look into the matter in view of our client's employment history issued by HMRC. We didn't object to the adjournment request of the Home Office as it saves our client expenses he would have incurred in attending the hearing in Glasgow. We are hoping that the Home Office will withdraw the deportation order before the next hearing date as the evidence clearly confirm that our client continuously worked in the UK for13 years before he sentenced to imprisonment, and therefore he was entitled to enhanced protection under Regulation 27(4) of the Immigration (European Economic Area) Regulations 2016.

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