The Secretary of State for the Home Department v Leandro Santos De Sa E Vasconcelos

Prospects of rehabilitation may be a substantial factor in the proportionality assessment for deporting an EEA national only where the person is genuinely integrated in the host state and there are reasonable prospects of rehabilitation. It cannot ordinarily carry substantial weight where the person has no permanent right of residence, little integration and an uncertain prospect of rehabilitation.

In assessing a present threat to public policy, the Tribunal must consider NOMS statistical assessments of reoffending. It is not bound by them. It may find a continuing risk where the evidence as a whole, including minimisation of offending and absence of reliable evidence of rehabilitation, supports that conclusion.

A party seeking to adduce updating evidence must comply promptly and specifically with procedural directions. Serious non-compliance will ordinarily justify refusal of an adjournment.

The Secretary of State appealed against a First-tier Tribunal decision of 8 March 2013 which had allowed the Portuguese claimant’s appeal against deportation.

The First-tier Tribunal found that the claimant remained at risk of opportunistic offending and therefore presented a genuine, present and sufficiently serious threat to public policy. It nevertheless allowed the appeal because it considered that his prospects of rehabilitation were better in the United Kingdom than in Portugal.

The central issues were whether that treatment of rehabilitation involved a material error of law, whether the factual findings on risk and integration could stand, and whether late further evidence should be admitted when re-making the decision.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal made a material error of law by treating comparative prospects of rehabilitation as decisive. The Upper Tribunal set aside its decision and re-made it by dismissing the claimant’s appeal.

2. Applying Daha Essa [2013] UKUT 316 (IAC), rehabilitation may be a substantial consideration where an EEA national is genuinely integrated in the host state and has reasonable prospects of rehabilitation. The claimant had not acquired permanent residence, had little evidence of social, cultural, family or economic integration, and had uncertain prospects of rehabilitation. Rehabilitation therefore could not carry substantial weight in the proportionality balance.

3. The First-tier Tribunal’s adverse credibility and risk findings were open to it. The claimant had minimised his participation in the index offence and had given inconsistent accounts of his circumstances and future support. Although NOMS statistical material had to be considered, it was not determinative. The Tribunal could assess all the evidence and infer a continuing risk of opportunistic offending.

4. Immigration (EEA) Regulations 2006 regulation 21 provided the applicable code. Appendix FM had no role in that assessment. On the established facts, the public-policy criteria for deportation were met and exclusion was proportionate.

5. The claimant’s late and unspecified request to adduce further evidence was refused. He had not complied with directions, identified the proposed evidence, or shown a material development. The Tribunal nevertheless took account of the limited information arising from the bail material.

6. The Tribunal also held, alternatively and for the avoidance of doubt, that time for the Secretary of State’s permission application would be extended if necessary.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the Secretary of State’s appeal, found a material error of law, and re-made the decision by dismissing the claimant’s appeal: [2013] UKUT 378 (IAC).
• First-tier Tribunal: On 8 March 2013, allowed the claimant’s appeal against deportation because it considered that rehabilitation prospects were better in the United Kingdom than Portugal.