Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00055/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 25 October 2016
On 27 October 2016

Before:

UPPER TRIBUNAL JUDGE GILL

Between

Secretary of State for the Home Department

Appellant

And

Jonas Lauzikas
(ANONYMITY ORDER NOT MADE)

Respondent

Representation:
For the Appellant: Mr L Tarlow, Senior Presenting Officer.
For the Respondent: Ms J Elliott-Kelly, of Counsel, instructed by Lawrence Lupin Solicitors

DECISION AND REASONS
1. This is an appeal by the Secretary of State for the Home Department (the "Secretary of State") against a decision of Judge of the First-tier Tribunal Blundell (hereafter the "judge") who, following a hearing on 24 June 2016, allowed the appeal of Mr Lauzikas (hereafter the "claimant"), a national of Lithuania born on 22 July 1988 against a decision of 26 February 2015 to make a deportation order against him under the Immigration (European Economic Area) Regulations 2006 (hereafter the "Regulations"). The Secretary of State also certified his human rights claim under regulation 24AA of the 2006 Regulations. The claimant lodged an appeal against the decision to make a deportation order and issued judicial review proceedings against the certification of his human rights claim under regulation 24AA.
2. The claimant claimed to have arrived in the United Kingdom in November 2012. He came to the attention of the authorities on 14 June 2014 when he was arrested for possession of an imitation firearm. On 4 December 2014, he appeared at the Crown Court at Ipswich and pleaded guilty to one count of possessing an imitation firearm with intent to cause fear of violence. He was subsequently sentenced to 14 months' imprisonment. He had no previous convictions. On 13 August 2015, the claimant returned voluntarily to Lithuania, whilst his appeal before the First-tier Tribunal and judicial review proceedings were pending. He subsequently returned to the United Kingdom to attend the hearing before the judge.
3. The circumstances of the claimant's offence were that, on 14 June 2014, he and three others went to a property with the intention of confronting those that were occupying the property, including the victim who was the partner of his (the claimant's) ex-partner. The offence was committed over money owed by the claimant to the victim, the return of which the victim had demanded by a text message sent by the victim to the claimant earlier on the day of the offence. The claimant took an imitation firearm with him. After an exchange of threats and insults at the property, the claimant broke a pane of glass and discharged the imitation BB gun in the house. A fight then occurred in the street, during which time the claimant continued to fire his BB gun, hitting one of the occupants.
4. It was common ground before the judge that the claimant could not benefit from the enhanced protections in regulations 21(2) or (4) and that his expulsion was permitted if it can be justified on grounds of public policy and is in accordance with the considerations in regulation 21(5).
The judge's decision
5. The judge found that the claimant did not present a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. He gave his reasons at [38]-[64] of his decision, which I will now summarise.
6. In his analysis of the evidence, the judge considered the case advanced by Ms P Ellis, who represented the Secretary of State before him, as to the risk posed by the claimant. He also considered the documents and reports before him. There were the following documents, amongst others, before the judge:
(i) The Pre-sentence Report ("PSR") by a Mr Edwin Oguledo that was before the sentencing judge. This report was written at the end of December 2014.
(ii) Two OASys reports issued by the National Offender Management Services, the earlier of which was prepared by Mr Oguledo on 31 December 2014 and the second of which was prepared by Ms Rachel Stephenson on 18 March 2015. The second report was issued shortly before the claimant was released from his sentence of imprisonment. The authors of the OASys reports had considered there to be "an emerging pattern of violent behaviour". The first report assessed the claimant as representing a medium risk of re-offending and the second report stated that he represented a higher risk of re-offending. The risk of harm to a known adult was raised from medium to high.
(iii) A report from a Ms Gemma Clarke of Expert Psychological Services Limited.
7. The different assessment of risk in the two OASys reports prompted a letter from the claimant's solicitors to the author of the second OASys report. The judge also considered the response of Ms Grant-Williams dated 28 July 2015 to the letter from the claimant's solicitor. The response stated, inter alia that:
"? (the) risk at the point of sentence ? differs in imminence from the risk at the point of release. Whilst on remand and in prison, it was perceived that his risk was controlled at the time and the assessing officer took the view that the risk was medium as custody was recommended. Concerning his release from prison, the assessor considers the change in circumstances and the fact that there is still a risk of repeat re-victimisation given that the victim's current partner, at that time was the offender's estranged wife."
8. At [51], the judge said that a range of documents was provided to Ms Clarke. The documents included those set out above. Ms Clarke agreed that there was a medium risk of serious harm. However, in her opinion, the risk of re-offending was low. At [51], the judge quoted from Ms Clarke's report, including the following extracts:
? At the present time Mr. Lauzikas has stable accommodation, is in a stable relationship, is employed, there is no evidence of emotional, behavioural or cognitive instability, violent attitudes or pro-criminal orientation and he is not in conflict with anyone. If there were to be a significant change in his personal circumstances, his risk and likelihood of him causing serious harm would need to be reviewed.
? Identifiable indicators of risk of serious harm are present in that he has committed a past violent offence as evidenced by the index offence and the use of a weapon within the offence that had the potential to cause serious harm. However, whilst there is evidence of a history of violence [e.g. index offence), Mr. Lauzikas does not have a significant history/pattern of violent behaviour in his history; the offence committed appeared out of character and to be an isolated incident, and the circumstances in which it occurred are no longer present and unlikely to reoccur and therefore, I consider his risk of reoffending to be low.
[1.6] Assessment using the Level of Service Case Management Inventory (?) indicates a very low level of risk for general offending at the current time. The LS-CMI highlights general risk/need factors related to Mr. Lauzikas' criminal history (being incarcerated upon conviction), lack of further education (A-Level equivalent) and absence of participation in an organised [leisure] activity. The presence of these factors results in a risk handing in the very low range with a score of 3 [Very Low risk range is 0-4 with total scores ranging from O-43].
9. At [52], the judge continued his summary of Ms Clarke's report as follows:
The summary continues, at [1.7], to note that the appellant accepted responsibility for his offending, that he had reasonable insight into it and that he endorsed no attitudes which were supportive of violence or weapons. She considered that he was motivated not to reoffend and to live a 'prosocial' life in the community. At [1.8], she thought that his risk would be raised initially if he moved to the UK as he would not have accommodation, a prosocial network and being potentially isolated. She considered that those risks would be offset by relocating (as planned) with his girlfriend and by the fact that he could return to his old employment. At [1.9], she considered that there were a high number of 'protective factors' which guarded against further offending. Her overall conclusion, having assessed all of the evidence, was that the appellant presented 'a low level of risk for future violent reoffending and a very low level of risk for future general (non-violent) offences': 1.10. She considered his offending to be an isolated incident which appeared out of character. She offered the following insight, at [1.13]:
Whilst not seeking to excuse or minimise Mr. Lauzikas' violent behaviour; after reading his file information and interviewing him his offending behaviour does appear out of character and to be an isolated incident that occurred within the context of his wife leaving him, his friend entering into a relationship with his wife, his friends siding with his wife and new partner and him becoming socially isolated. He felt hurt and rejected by his friend and ruminated on his behaviour, as well as fearing he would not be able to be a father to his son, allegedly being told by his ex-wife's family that he was no longer his father. He did not speak to family in Lithuania about the situation he found himself in. He reported fearing being harmed by his friend and his [ex] wife's family and bought the imitation firearm for protection. He allowed his emotions and grievance thinking to flaw his thinking and it is within this context that he committed the index offence. The chances of Mr. Lauzikas experiencing a high number of stressors, as he did during the lead up to his offending, simultaneously, is very low and therefore. the likelihood of offending occurring in a similar context is very low.
10. At [57], the judge said that he accepted that the offence committed by the claimant was "a clear case of premeditation" but he went on to consider Ms Clarke's conclusions and the claimant's evidence about the circumstances of, and leading to, the offence. He concluded that the claimant's actions in bringing the BB gun and in taking it to the house, whilst premeditated, were borne out of a highly unusual and highly stressful set of circumstances which are highly unlikely to re-occur. I quote [57] (Ms Easty, mentioned in this quote, was Counsel for the claimant and [T] was the victim in the offence committed by the claimant):
Ms Ellis drew my attention, understandably, to the conclusion in the PSR that this was 'a clear case of premeditation'. I agree that this is a significant conclusion and I agree that it is well-founded. The appellant accepts that he bought the gun and he accepts that he took it with him to the house. I agree with Mr Oguledo that he clearly intended to use that weapon in the way he did. Ms Ellis is entitled to submit, as she did, that these are the actions of a man who is predisposed to violence. I note Ms Clarke's conclusions about this, however. She felt that the appellant had been driven to a point of such stress that he acted in a way which was completely out of character. This is undeniably her field of expertise but it chimed with my own evaluation of the appellant's evidence at the hearing. He described during cross-examination how he had found out that his wife was seeing his friend [T] very shortly after [the claimant's son]' birth. He had come home one day and found them sitting on the sofa, seemingly in an embrace. Tensions rose and the police were called on that occasion but no charges followed. The appellant was clearly upset when he recalled these events. His first son had just been born and he was settling into the new role of fatherhood when his family life fell apart. He was no longer able to live with his wife and child and he missed his son desperately. His actions in buying the BB gun and in taking it to the house were premeditated, therefore, but I accept Ms Easty's submission that they were borne out of a highly unusual and highly stressful set of circumstances which are highly unlikely to re-occur.
11. For these reasons, the judge said, at [58], that "(there) is no proper basis upon which to conclude that (the claimant's) actions were part of 'an emerging pattern of violent behaviour'". He drew attention to the fact that the claimant had one conviction, that he was released from custody in March 2015, that he had not re-offended, that there was no pattern before his conviction, there has been no pattern afterwards and, finally, that his conduct in prison had been shown to be exemplary.
12. At [59], the judge said that he considered that the fact that the claimant had not undertaken any courses which addressed his offending behaviour did not mean that he was likely to commit a second offence. The judge said that he found the claimant's evidence at the hearing to be truthful, and, in this respect, said as follows:
He came across as a quiet and reflective man who had genuinely benefitted from the opportunity to reflect on the consequences of his actions. As Ms Easty reminded me, a sentence of imprisonment is designed to punish and to rehabilitate. Sadly, one frequently encounters individuals on whom the second goal is wasted. I was quite satisfied that this appellant was sincere in the account that he gave of having thought carefully about the consequences of his actions on his victims and his own family life. He had suffered when he was unable to see his son because he had been in prison and I accept his evidence that he was committed to avoiding such separation again. I note that he continues to see [the claimant's son] when he is brought to Lithuania by Santa, as she confirms in her statement, and I accept that his desire to continue seeing his son serves as a very real incentive for him not to make a similar mistake in the future.
13. At [60]-[61], the judge considered the fact that the risk of serious harm to known adults was raised from medium in the PSR to high several months later. He agreed with Ms Clarke that the raising of this risk was nothing more than an exercise in caution and that he did not accept that "? it would be remotely appropriate to proceed now on the basis that the appellant poses a high risk of harm to a known adult", drawing attention to the following evidence and stating, on the basis of such evidence, that: "Thankfully, the understandably cautious approach adopted by the Probation Service proved unwarranted."
He was released from immigration detention in March 2015 and he left the UK five months or so earlier?. The [claimant] did no harm to [T] and has put his differences with his ex-wife behind him so successfully that the two adults co-operate to enable him to have a meaningful relationship with his son.
14. For these reasons, the judge said, at [62] that he rejected Ms Ellis's attempt to undermine the foundations of Ms Clarke's report. He said that he considered Ms Clarke's evaluation of the claimant to be correct, and preferred it to the previous assessments of the Probation Service. He said that he therefore accept her assessment which she summarised as follows :
In my opinion [the appellant] presents a low risk of reoffending and a medium risk of serious harm to a known individual if his personal circumstances change; in that there are identifiable indicators of risk of serious harm but [the appellant] is unlikely to do so unless there is a change in circumstances.
15. At [63], the judge said:
It is clear, as Ms Easty submitted, that the Tribunal's focus must be on the present circumstances. So much is apparent from regulation 21(5)(c). I accept that the appellant's life is currently in a state of stability. The difficulties with his relationship with Santa are behind him, as they both confirm. His relationship with his son is rekindled, as they also both confirm. He is employed in Lithuania and his employers in the UK have confirmed that they will re-employ him (Ms Ellis did not pursue in her written submissions a matter which had been canvassed in cross-examination relating to slight differences in the name of the employer across various documents). I accept that the appellant's behaviour in 2014 was an aberration and I accept his evidence that he has reflected on the consequences of his actions. I do not consider that he presents a genuine, present and sufficiently serious threat to the fundamental interests of the United Kingdom.
The grounds
16. The grounds contend that the judge materially erred in law in law for the following reasons:
(i) In reaching his finding that the claimant did not present a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, he simply relied upon Ms Clarke's assessment rather than look holistically at all of the evidence, including the nature of the claimant's offence. Although a person's criminal convictions do not alone provide a sufficient basis for deportation, they should not be ignored when assessing the risk posed by the claimant.
(ii) Ms Clarke's report was not determinative of the issue as to whether the claimant posed a genuine, present and sufficiently serious threat. In any event, Ms Clarke had assessed the claimant as posing a medium risk of re-offending of his circumstances changed. The judge had erred by failing to consider a change of the claimant's personal circumstances and the resulting risk to the public from any potential change in circumstances.
(iii) The judge failed to take into account the fact that the claimant has been outside the United Kingdom since August 2015.
(iv) The judge equated the low risk of re-offending in the report of Ms Clarke with the absence of a genuine, present and sufficiently serious threat.
Submissions
17. At the hearing, Mr Tarlow relied upon the grounds. He submitted that the grounds essentially distil into one argument, that the judge had placed too much weight on the report of Ms Clarke and that, in doing so, he failed to take into account all of the circumstances.
18. I asked Mr Tarlow to draw my attention to the particular evidence or circumstances that was/ were overlooked by the judge. He submitted that the judge overlooked the threats of violence made by the claimant to his former partner.
19. I then informed Ms Elliott-Kelly that it was not necessary for her to address me. I announced my decision, that the judge did not make any material error of law and that his decision would stand for reasons which I would give subsequently in writing.
Assessment
20. I deal first with the written grounds. The main complaint in the grounds concerns the judge's assessment of Ms Clarke's report. There is simply no basis upon which his assessment of her report and his reliance upon her report can legitimately be criticised. It is not the case, as contended in the grounds, that the judge simply relied upon her report and failed to consider the evidence as a whole. It is self-evident, from my summary of the judge's assessment, that he did consider the evidence as a whole, including the PSR and the two OASys reports relied upon on behalf of the Secretary of State. It is not the case that he treated the report of Ms Clarke as determinative. He also considered the subjective evidence of the claimant and his ex-partner besides the evidence in the forms of the PSR and the OASys reports relied upon on behalf of the Secretary of State.
21. The judge considered, in terms, Ms Clarke's evidence that the claimant presented a medium risk of serious harm to a known individual if his circumstances change, at [62]-[63], but said (at [63]) that the Tribunal's focus must be on the present circumstances. He found that the claimant's life was in a state of stability and that the difficulties with his relationship with Santa were behind him. It is plain from the judge's decision there was nothing about the claimant's then current circumstances to suggest that his circumstances may change materially in a way that could be foreseen. In these circumstances, it would have been an exercise in pure speculation if the judge had embarked upon a consideration of the risk posed if the claimant's circumstances were to change materially.
22. Mr Tarlow was correct to submit that the main argument in the grounds distils into the one short point, that the judge placed too much weight on the report of Ms Clarke. However, this as a matter for the judge.
23. Contrary to the grounds, it is not the case that the judge ignored the claimant's conviction. He took it into account in terms.
24. This leaves one remaining point from Mr Tarlow's submissions, i.e. that the judge failed to take into account all of the circumstances. When I asked him to draw my attention to the particular evidence that the judge overlooked, he said that the judge overlooked the threats of violence made by the claimant to his former partner. The only reference to threats by the claimant in the decision is at [29], where the judge, in summarising the submissions of Ms Ellis, mentioned that, on one version of the claimant's evidence, he mentioned having sent a threatening text message to [T]. Whilst it is true that this was the only reference to the evidence of threats by the claimant, the fact is that judges are not obliged to deal with each and every aspect of the evidence that is before them. The mere fact that something has not been specifically mentioned does not mean that it was overlooked. In my judgment, given that the judge considered the evidence that was before him in such detail and with such care, it simply cannot be said that he overlooked the evidence of the claimant having made threats to his explain partner. In any event, this is not material to the outcome, on any legitimate view, given the evidence before the judge, that the claimant's differences with his ex-partner had been resolved and the view I have expressed above, that it would have been an exercise in pure speculation if the judge had ventured to consider the risk in the event of an unforeseeable change in his circumstances.
25. My treatment of the Secretary of State's grounds and case is as briefly stated as her case was made before me. I take the view that the decision of the judge, which was a full, fair and very careful assessment, speaks for itself.
26. For all of these reasons, I have concluded that the judge did not err in law. The Secretary of State's appeal is therefore dismissed. The decision of the judge stands.

Decision
The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

Signed Date: 26 October 2016
Upper Tribunal Judge Gill