Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal no: DA/00237/2017

THE IMMIGRATION ACTS

At
Decision and Reasons Promulgated
On 15.01.2018
On 22. 01.2018

Before:
Upper Tribunal Judge
John FREEMAN
Between:
Robert Arthur RUTTEN
appellant
and

respondent
Representation:
For the appellant: Mr Andrew Jones, solicitor, Thompson & Co
For the respondent: Mr T Lindsay

DECISION AND REASONS
This is an appeal, by the , against the decision of the First-tier Tribunal (Judge MJ Gillespie), sitting at Hatton Cross on 15 August 2017, to a deportation appeal by a citizen of the Netherlands, born there in 1964.
2. The appellant's mother was British, but married to a Dutchman, who may or may not have been his real father. In 1972, his mother had fallen out with her husband, and brought the appellant, after about four years in the Netherlands as a small child, and his two younger brothers back to this country, where they have lived ever since. The appellant's mother is no longer alive, but he also has a half-sister and two grown-up children in this country, though he says he doesn't have much contact with his children. Besides immediate family, the appellant has an uncle and aunt and cousins over here. He hasn't been in touch with his father since he was 8, and has no friends or relations in the Netherlands.

3. The appellant's history in this country has been somewhat chequered: the serious convictions recorded against him are as follows, only noting for now those resulting in imprisonment.
1992 house-burglary (x2) 18 months' imprisonment
1996 driving whilst disqualified 3 months' imprisonment
2005 possession of cocaine with intent 2 years' imprisonment
2014 sexual assault by penetration 32 months' imprisonment
sexual assault (no penetration) 24 months, consecutive
possession of indecent images 8 months, concurrent
total 4 years 8 months
4. The 2005 sentence had led to a notice of intention to deport, but the appellant's appeal against that was allowed in 2006. This time a deportation order was served on 3 April 2017, and once again the judge allowed this appeal. The relevant legislation is the Immigration (European Economic Area) Regulations 2016 [the EEA Regulations], setting conditions for the exercise of the power to deport an EEA citizen found guilty of a criminal offence.
27.-(1) In this regulation, a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a right of permanent residence under regulation 15 except on serious grounds of public policy and public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who-
(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b) is under the age of 18, unless the relevant decision is in the best interests of the person concerned, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles-
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision;
(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person ("P") who is resident in the United Kingdom, the decision maker must take account of considerations such as the age, state of health, family and economic situation of P, P's length of residence in the United Kingdom, P's social and cultural integration into the United Kingdom and the extent of P's links with P's country of origin.
5. The judge rightly concluded, at 15, that the appellant's imprisonment had broken the continuity of his residence, counting back from the date of the decision under appeal, so that he could not claim the additional protection given by reg. 27 (4). Also rightly, he held, at 10, that the appellant's established time at large, and in full employment, between 1999 and 2005 entitled him to a permanent right of residence. The result, under reg. 27 (3), was that there had to be serious grounds of public policy or security for deporting him. This decision had to be made in terms of the considerations set out at reg. 27 (5) and (6).
6. The judge concluded, at 18, that this appellant did pose a 'genuine, present and sufficiently serious threat' (see reg. 5 (c)) to justify deportation, subject to the remaining proportionality considerations at (5) and (6). So far, neither side has challenged his decision. The question is on the way in which he reached his conclusions on proportionality, at 20 - 22. Paragraphs 20 and 21 are concerned with the appellant's family history in this country, and the judge's assessment of that is not challenged; nor is there any challenge to his conclusions on the appellant's lack of Dutch language or effective connexions in the Netherlands.
7. Permission was given on the basis that the judge had failed properly to assess the interests of society in making his decision on proportionality. While it may reasonably be assumed that, having just found at 18 that the appellant represented a 'genuine, present and sufficiently serious threat', the judge had not lost sight of that in reaching the decision he did at 22, the result he reached is also challenged on his approach to the appellant's 'social and cultural integration' into this country.
8. So far as can be seen from the judge's 22, he looked at the question of integration without going into the appellant's criminal history. If the appellant had been convicted of a single serious offence after many years with a good character, then that might not have been decisive. However, this was not the case: besides the four occasions (see 3) when the appellant had been sent to prison, his record showed that he had been convicted, since 1992, of offences punishable with imprisonment in 1996, 1999, 2001, 2011 and 2014. This was something the judge clearly needed to take into account in assessing the degree of the appellant's integration into this country, before reaching his decision on the proportionality of his deportation, and not doing so was a material error of law on his part.

9. Having announced that conclusion, I invited both parties first to make submissions as to whether I could go on at once to re-decide the case for myself. Bearing in mind that many of the judge's conclusions were not challenged by either party, neither suggested otherwise, and so I invited submissions on the merits of the case.
10. Both sides accepted that the law, especially on the question of rehabilitation, which formed a considerable part of the judge's reasons, is as set out in MC (Essa principles recast) [2015] UKUT 520 (IAC). The relevant parts of the judicial head-note follow, leaving out the frequent references to Dumliauskas & others [2015] EWCA Civ 145, and to the original decision in Essa (EEA: rehabilitation/integration) [2013] UKUT (IAC) 316:
3. There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6).
4. Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed .
5. Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime , not the mere possibility of rehabilitation. Mere capability of rehabilitation is not to be equated with reasonable prospect of rehabilitation.
6. Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) .
7. Such prospects are to be taken into account even if not raised by the offender .
8. Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State .
9. Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like . However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation
10. In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor. Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognise that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence.
11. As already seen, the judge had fallen short of the 'wide-ranging holistic assessment' required by failing to take account of the appellant's previous record. Bearing in mind the judge's entirely justifiable conclusion on the threat posed by the appellant, his overall proportionality assessment would be hard to justify, unless his approach to rehabilitation was correct. Otherwise I am content to take the judge's findings of fact as the basis for my decision, with one reservation, which follows: I shall come to the other in due course.

12. The judge found, at 22, that the appellant would have "? no visible prospects of employment or accommodation in the Netherlands". While this is no doubt correct, so far as it goes, Mr Jones realistically accepted that the Netherlands has to be treated as a civilized European country, where the appellant would be entitled to whatever welfare provision other citizens receive. He also accepted that, although the appellant has no Dutch, the general standard of English is well known to be very high in the Netherlands. On the question of the appellant's prospects of rehabilitation, Mr Jones accepted that the relevant material is in the reports referred to at 16 - 17. Otherwise I have taken account of both sides' submissions in reaching my conclusions.
13. On the question of rehabilitation, this is what the judge said:
He would have no visible access to continued rehabilitation and in particular to ? supervision on licence by probation officers with whom he shares a common national, cultural and social identity, not to mention a common language. ? So integrated is he in all aspects of life and society in the United Kingdom, and so alien is he to the country of his nominal nationality, that I hold his only prospects of continued rehabilitation, and of elimination of such threat as he does pose to the public, lie in this country, rather than in what is in all respects other than accident of history, a foreign country.
14. One would not have guessed from this passage that the judge was talking about a country so close, and so closely akin to this one as the Netherlands, though that is perhaps a matter of opinion. It is however clear from paragraphs 8 - 10 of the guidance in MC that the lack of 'visible access to continued rehabilitation' cannot form the basis of a decision on this point, and that, without evidence, of which there is none, it cannot be assumed that prospects of it are materially different in the Netherlands. Nor is lack of any access to a probation officer, let alone a culturally attuned one, to preclude deportation in general. Finally the degree of the appellant's integration, as well as his right to permanent right of residence, has to be fully taken into account, and the more serious the relevant risk of repeated offences, the more heavily that weighs in the proportionality decision.
15. At this point I need to consider the available evidence about the continued risk posed by the appellant. The sentencing judge described his most serious offences in these terms:
This lady was a friend. On two separate dates you abused her by sexually assaulting her when she was asleep in bed and then humiliating her by taking photographs on your phone showing what you were doing. The photographs were of her private parts. This was dirty, perverted behaviour.
16. The author of the current OASys report (22 February 2017) noted that this was the appellant's first conviction for sexual offences, but also that this part of his offending was not, in view of the other offences, an isolated incident, and re-assessed the risk as 'imminent and high'. Access either to female house-mates or partners would increase it, while successful completion of a SOTP [sex offender treatment programme], or lack of access to them would reduce it.

17. There was also a very detailed report (December 2016) by Dr Danielle Sturgess, who is a forensic psychologist employed by the Prison Service, and treatment manager of the appellant's core SOTP. While this report could not take account of the February 2017 OASys re-assessment, it does represents a more detailed view of the risk posed by the appellant than that does, and by someone even more qualified to make it.
18. Dr Sturgess does note (at 1.4.3) the further offences, involving indecent images of children and animals, which would lead to the OASys re-assessment; but the rest of her report is concerned almost entirely with the risk the appellant posed to female house-mates or partners. He seemed to have been fairly honest with Dr Sturgess about the events which had led to his convictions on this score, and she assessed his risk as follows (8.4)
[The appellant] would appear to be managing his risk factors effectively and so he is not considered to pose an imminent risk; however it is likely that his ability to do so is in part supported by being in custody. With regards to a community setting, his risk of causing serious harm, as assessed by OASys (02.01.15) is reported to be high to children and the public, medium to a known adult and low to staff. With regards to children, [the appellant] denies actively seeking out and making indecent images of children. He also denies any sexual interest in children and there was no evidence gained on Core SOTP to support such an interest. In reference to known adults, he has previously behaved violently towards intimate partners, often under the influence of alcohol. Should he engage in excessive alcohol consumption, then the imminence of risk he poses to an intimate partner is likely to increases, as is the potential for serious physical harm. Regarding his sexual offending, should [the appellant] (a) not be involved in an intimate relationship., (b) be engaging in excessive alcohol consumption and (c) fail to seek support from others, then his risk of recidivism is likely to increase.
19. At 10.1 Dr Sturgess says this:
Overall [the appellant] has engaged well in SOTP. He appears to have developed good insight into his risk and the skills he needs to manage this effectively in future. The skills he has learnt would appear transferable to managing other areas of potential risk, including Intimate Partner Violence and general antisocial behaviour.
20. The trouble with Dr Sturgess's assessment, and the reason for my second reservation about the judge's findings, lies in their relatively uncritical assessment of the appellant's explanation for the images found in his possession. The one described by the judge (11) as the photograph of a woman "in carnal connexion with a dog" he said he had found as a child and kept. This seems improbable, since mobile phones and other electronic devices were not in common use till the late 1980s, by which time this appellant was well grown-up; but it is not the main problem. This is that both the judge and Dr Sturgess (1.4.3) noted the appellant's explanation for possession of indecent images of children as having received them by accident on phones given to him in the past as payment for drugs.
21. The judge said this
The explanation in respect of the images of children has been consistently given since the time of assessment for sentencing purposes. Although it is not consistent with a plea of guilty, it has some weight as an explanation persisted in for a considerable time. I nevertheless can find no cause to treat the matter on any basis other than that forming part of the conviction and sentence, namely that the appellant admitted and was convicted for making [my emphasis] images of children.
22. This was an entirely correct approach, since the Crown Court trial record shows, on two out of the three counts concerned, that the appellant was convicted of making an indecent photograph or pseudo-photograph of a child on a specific date, 22 March 2013. However, what the judge did not go on to do was to consider the effect of this on the appellant's rehabilitation prospects. Contrary to the position on the appellant's offending against a grown-up woman, on which I should be prepared to accept Dr Sturgess's assessment, if it stood alone, and to his own plea before the Crown Court, he has not been prepared to be frank about his possession of child pornography with either the judge or Dr Sturgess.
23. Frankness must be a prerequisite of rehabilitation, especially where behaviour of this kind is concerned. The OASys assessor (2.10) described the appellant as being in "? a high level of denial regarding these offences", and went on to give reasons for saying that he was minimizing his actions, where those against a grown-up woman were concerned. This led to reservations about his motivation, set out at 12.8, and to re-assessment of his risk, at R10.3, as 'imminent and high'.
CONCLUSIONS
24. While I accept from Mr Jones, who represented the appellant before the judge, that he appears English in all respects, his degree of integration must be limited by his repeated criminal convictions and periods of imprisonment. So far as the appellant's work record is concerned, he was only in consistent full-time work, as shown by his contribution records (noted by the judge at 10) from 1999 to 2005, with variable records from then till 2016.
25. I also accept that the appellant would be without friends or family to turn to in the Netherlands; but the corollary of that, as Mr Lindsay pointed out, is that his having such advantages here has not prevented him committing serious offences over the years. There might be difficulties in the way of his getting back to work at nearly 54, following his latest convictions, in either country; but there is no evidence of his having any health problems. He has been here for a very long time; but never out of serious trouble for longer than the end of his 2005 sentence and his 2011 conviction.
26. If rehabilitation were a serious prospect for the appellant, then there might be clear advantages in terms of the specific availability of the core SOTP1, operated by people with direct access to his record. However, the current OASys assessment gives the appellant's risk as high and imminent, and, for the reasons I have given, I am not prepared to accept
that he has been frank enough about what he has done for rehabilitation to be a decisive factor in his case. That means the judge's fully justifiable assessment of the 'genuine, present and sufficiently serious threat' he poses, taking into account all the factors at 25, also justifies his deportation.
Home Office appeal allowed: decision re-made
Appeal against deportation
18 January 2018 (a judge of the Upper Tribunal)