Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00255/2016

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 26th April 2017
On 27th April 2017

Before

UPPER TRIBUNAL JUDGE MARTIN
UPPER TRIUNAL JUDGE RINTOUL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

mr RAMAN KALAHYRU
(ANONYMITY DIRECTION not made)
Respondent

Representation:
For the Appellant: Mr P Deller (Senior Home Office Presenting Officer)
For the Respondent: Mr J Butterworth (instructed by Charles Simmons Solicitors)

DECISION AND REASONS
1. This is an appeal to the Upper Tribunal by the Secretary of State in relation to a Decision of Judge of the First-tier Tribunal Callow promulgated on 14th March 2017 following a hearing on 16th & 20th February 2017 at Taylor House.
2. For the sake of continuity and clarity we will refer in this judgment to Mr Kalahyru as the appellant and to the Secretary of State as the respondent
3. This was a case concerning the deportation of a family member of an EEA national, who, it was accepted, had permanent residence in the UK.
4. The appellant is a national of Belarus born on 11th November 1994.
5. Following her marriage to a Polish national the appellant’s mother was granted entry clearance to join her husband in the UK where he was working. The appellant joined his mother and stepfather in the UK in 2005 having lived with his grandmother in Belarus up to that point. On 11th July 2011 the appellant was issued with a permanent residence card, as was his mother.
6. The appellant has at all times lived with his mother, stepfather and stepbrothers in the UK. He attended primary school and secondary school in the UK. He then attended college and thereafter worked with a recruitment agency in a variety of jobs until February 2015.
7. On 17th November 2013, aged 19, the appellant committed two offences of robbery of which he was convicted on 17th February 2015 and on 23rd March 2015 was sentenced to 29 months in a Young Offenders’ Institution.
8. On 1st June 2015 the appellant was served with a notice of liability to deportation and on 15th April 2016 was served with a notice of decision to make a deportation order. The appellant appealed.
9. On 27th June 2016 he was released from custody on licence and has lived with his mother, stepfather and brothers since.
10. It was his appeal against that deportation decision which came before Judge Callow.
11. Judge Callow allowed the appeal on the basis that his deportation would not be in accordance with the requirements of the Immigration (European Economic Area) Regulations 2006 (“EEA Regulations”); in particular, the judge was not satisfied that deportation was justified on the grounds of public security in order to address any “genuine, present and sufficiently serious threat” posed by the appellant’s continued presence in the UK.
12. The Secretary of State was granted permission to appeal by Upper Tribunal Judge Deans in March 2017. Judge Deans was less than impressed by the second and third grounds upon which permission was sought but found the first ground to be arguable.
13. The first ground asserts the judge had erred in finding that the appellant’s personal conduct did not represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
14. The Secretary of State submitted that the appellant’s propensity to commit robbery involving violence affected one of the fundamental interests of society and quoted from the case of Bualale [2008] EWCA Civ 806 where at paragraph 21 it was said:-
“This element in the scheme can be shortly dealt with. Protecting members of society from violent crime, at least of a sufficiently serious nature, is clearly a fundamental interest of that society. Mr Bualale by his propensity to commit robbery, threatens that fundamental interest”.
15. It was submitted the First-tier judge should have considered the guidance in Bualale in assessing the seriousness of the appellant’s offence. It was said that it is clear that a balance must be struck, when considering these authorities, between the seriousness of the past offending that involved violence and the risk of it being repeated. In such a balancing exercise the medium risk of serious harm as indicated in the OASys report of 16 February 2017 should be evidenced in findings. It was respectfully submitted that even a slight risk of the appellant reoffending could constitute a genuine, present and sufficiently serious threat and thus the judge made an error of law.
16. Secondly, with regard to the question of integration, it was submitted that the Judge had failed to give reasons for finding the appellant was well integrated. The grounds referred to paragraph 21 of the Decision and Reasons which said that the appellant had behaved well since his release from prison but that finding failed to take into account the short period of time the appellant had been at liberty. He was released from detention on 27 June 2016 and therefore the period in question was only just over six months which could not be considered weighty evidence that the appellant had been rehabilitated. Reference is also made to the fact that the appellant’s offending demonstrated a lack of integration and that had not been dealt with by the judge.
17. With regard to the first and second ground we find these to be those at large before us. Mr Deller did not press the third ground in relation to the so called “margin of appreciation”. He was wise not to do so.
18. In his submissions Mr Deller relied upon the grounds reminding us that the question to be answered is whether the judge had done a satisfactory job and considered properly the risk, given the very nasty offences committed by the appellant and the contents of the OASys report. He also reminded us that integration is not just a mathematical calculation.
19. In lengthy submissions Mr Butterworth argued that when studying the Decision and Reasons it is quite clear that the judge had correctly set out the applicable law and applied it. At paragraphs 19, 21 and 24 he had asked himself the right questions and given adequately reasoned findings. He had not approached integration as a mathematical calculation only but had taken all matters into account as set out in the case of Essa (EEA: rehabilitation/integration) [2013] UKUT 00316 (IAC). He had clearly taken into account the contents of the OASys report and come to the conclusion that the appellant was unlikely to reoffend and that he therefore did not represent a genuine, present and serious threat to one of the fundamental interests of society.
Our Consideration
20. We now turn to the Decision and Reasons.
21. It is important to note, as the judge set out in the Decision and Reasons, the sentencing remarks of Recorder Malins in March 2015. He said:-
“These were two terrifying nasty robberies, carried out in the dark of night. Mr C was, I think, walking along when one of you came up behind him and you are both in this robbery together. I think it was in his case that it seemed longer but it was probably 10 minutes, I will be corrected if I am wrong on the Crown’s account of sustained attack resulting in a painful and bloody nose, a bloody graze, a cut and a man who was clearly injured and clearly deeply upset and distressed... And I can tell you now that victims of this kind of thing remember it not just for days, but sometimes years, they dream of it. It is not over for them on the night it happens... A little later, Mr Maroof (?). You had done one robbery, now another. You approached him, pulled his headphones off. He ran. I think he fell. He was punched hard to the head twice by each of you and lost consciousness; significant force – horrible - at night-time and everything that I have said about the first robbery applies to that”.
22. It is clear from the sentencing remarks that it was a particularly nasty offence. It is also mentioned in the Decision and Reasons that, although this was the first conviction against the appellant, there had been a previous incident whilst the appellant was in school (aged 15) when he had been involved in the assault of another pupil and had also insulted a police officer. However, no action was taken in relation to those matters.
23. In his Decision and Reasons, after setting out the appellant’s immigration and criminal history the Judge set out the respondent’s case. He noted the agreement that the appellant had permanent residence and therefore that his deportation must be justified on serious grounds of public policy or public security.
24. The Secretary of State’s case was that there was a real risk the appellant might reoffend and pose a sufficiently serious threat of serious harm to the public if he were to be allowed to remain. The Secretary of State noted that in the absence of evidence that there had been any improvement in his personal circumstances since his conviction, it was considered reasonable to conclude that if he did not find employment or stable accommodation he might re-associate with negative peers and revert to offending to support himself and as such will continue to pose a risk of harm to public. In essence, the fact that the appellant had been assessed on a MAPPA level 1 by which it was appropriate for the appellant to be monitored under risk management strategies, indicated that he was a continuing risk to the public at large. The Secretary of State noted that there was an absence of any evidence of rehabilitation while in custody and a lack of any significant integration to the community in the UK. It was the Secretary of State’s case that there was no reason why the appellant could not work towards rehabilitation in Belarus.
25. During the hearing the judge heard evidence from the appellant and his witnesses who were apparently the appellant’s mother and a family friend.
26. We note that there is insufficient reference to the nature of the oral evidence in the Decision and Reasons. We do not know what his mother said or what questions were asked of her.
27. It is noted that following the comments by the Secretary of State in the decision about lack of documentary evidence, the appellant had produced a number of documents concerning his education and employment history in the UK. He also produced evidence of various courses taken whilst in custody, namely a drug and alcohol awareness course and one about understanding the restorative justice process.
28. The judge noted that the OASys report of February 2017 said that there were identifiable indicators of risk and that the appellant posed a medium risk of serious harm but that while he had the potential to cause serious harm he was unlikely to do so unless there is a change in circumstances - for example, loss of accommodation, relationship breakdown, drug or alcohol misuse. The judge noted that the appellant said he had greatly reduced his consumption of alcohol and avoided associating with his past peers.
29. The judge noted that the appellant’s mother had said that the appellant’s grandmother remained in Belarus and accordingly there appeared to be no good reason why the appellant could not live with her if deported.
30. The judge also noted that the other witness, a family friend, owned a building business and had offered the appellant full-time employment. The Judge made no finding as to whether that was genuine, long term, or had been taken up. He also did not make a finding as to why the offer was only then being made.
31. The judge then, having set out the burden and standard of proof, set out the law and various cases.
32. At paragraph 19 the judge found that there was reason to approach the appellant’s evidence addressing his criminal conduct with caution. He noted that he been convicted of two serious counts of robbery and other offences had taken place some 10 years ago, albeit that did not lead to charges. The judge also note that he exhibited from time to time an uncooperative attitude whilst in custody and that he had been assessed as posing a medium risk of serious harm.
33. The judge however then considered that the appellant had seen the error of his ways and taken steps to control his consumption of alcohol which seemingly had played a part in commission of the offences. He noted that he lived at home with his mother and stepbrothers and had been offered full-time employment. The judge found those factors, together with his continued observation of the conditions of his licence and the length of time he had been in the UK showed that he was integrated into society and that all those factors pointed against removal.
34. The judge then quoted paragraphs 32 to 35 and 40 of Essa and found that the appellant fell into the category of offender considered in paragraphs 32 to 34 of that case. He nevertheless found the appellant was likely to benefit from the support of his family while he re-establishes his life in community UK and that his expulsion would be a retrograde step in his rehabilitation and detrimental to the interests of the community. The judge noted that he had complied with the conditions of his licence and bail and that he had remained at home with his mother providing support for his younger stepbrothers. He noted that he openly acknowledged his guilt and was aware of the impact of his offending on others. He noted that he had a real prospect of employment and finally stated that while weight is attached to the risk of harm to the public, since his release from prison he had behaved well. He noted that he had lived in the UK for over 10 years and was well integrated. He found that if he were to be removed to Belarus, despite the presence of his elderly grandmother, deportation would remove important support factors and incentives to behave which would appear to be detrimental to his continuing rehabilitation.
35. The judge set out in some detail the content of the case of Straszewski and Anor [2015] EWAC Civ 1245 and applying the guidance therefrom, mindful of the fact that it was the respondent’s case that the appellant’s deportation is justified on “serious grounds of public policy or security” concluded that the appellant did not present such a threat. He found that “save for a weakness with personal consumption of alcohol, he had reformed”. He noted that the decision had to be based exclusively on his personal conduct and noted that the offences, although serious, were committed by the appellant when he was a minor. It was accepted, he said, that the appellant had learned his lesson and that it was unlikely that he would reoffend. He found the facts fell far short of serious grounds justifying deportation.
36. Starting at the end of what we have set out above, the judge made an error in stating that the offences were committed while the appellant was a minor. They were not.
37. The judge also stated that it was accepted the appellant had learned his lesson and that it was unlikely that he would reoffend. That was most certainly not accepted by the Secretary of State. It may be that the judge meant that he accepted it but we cannot see that the evidence justified that conclusion.
38. The most significant document before the judge was the OASys report which at the date of the hearing before the First-tier judge was right up-to-date being dated 16 February 2017.
39. The OASys assessment starts by giving a brief description of the offences themselves. The first offence involved a victim who was walking home when he felt someone put their arms around him and over his mouth and then taken down to the floor. He was searched and when he tried to shout for help was assaulted. He protected his face while the perpetrators kicked and punched him in the facial area before running away.
40. The second offence involved a person who was talking via a hands-free mobile phone device when one of the perpetrators grabbed the headphones but then fell. The victim ran off but was pursued by both perpetrators and whilst being chased the victim fell over. He was assaulted by both perpetrators who hit him in the head back and side before stealing two mobile phones and making off.
41. There is some suggestion in that assessment of the appellant minimising his involvement. However, it is also true to say that when discussing matters the appellant had displayed a good amount of victim empathy when discussing victim issues and said that he would like to apologise to the victims if he were given the opportunity.
42. The OASys report indicates that the appellant had said that the offences were probably related to financial gain and thus found that there would be a heightened risk of further offending if he had no money.
43. The OASys report states that the appellant enjoys a good and supportive relationship with his mother and younger brothers but a rather more strained one with his stepfather. The OASys report states that a conclusion could be drawn that the index offending is part of a pattern of aggressive behaviour. This is as a result of the assault incident at school when he was aged 15. The author of the report also indicates that lifestyle issues and peer issues were assessed to be linked with the offending. It is also noted that alcohol played a part of the offence and acted as a disinhibitor. The report also noted that the appellant had received a penalty notice for being drunk and disorderly a year prior to the offence
44. The report indicated that the appellant now believed that he could think through the consequences of his actions better and demonstrated a clear problem-solving approach which showed that he had reasonable skills when not impacted by the use of alcohol
45. In terms of the assessment of risk the OASys report indicated that it is members of the public who are at risk, the nature of that risk being physical harm due to the commission of robbery related offending. The risk was likely to be greatest when the appellant had been drinking or with peers and was financially motivated offending and thrill seeking. It assessed that the circumstances likely to increase risk were increased alcohol use, increased socialisation with pro-criminal peers, unstable work, lack of finances, not addressing offending behaviour and decreasing victim empathy. The appellant is then assessed as presenting a medium risk to the public in the community. A medium risk is defined as where there are identifiable indicators of a risk of serious harm. This is where the offender has the potential to cause serious harm but is unlikely to do so unless there are changed circumstances.
46. The report then goes on to note that it is condition of his licence to comply with probation supervision and not to contact or associate with his co-defendant without prior approval of his supervising officer and not seek to approach or communicate with the victim or their family members.
47. Finally, he is assessed as a medium risk in terms of the probability of proven violent offending but that however he is quite motivated to address his offending and quite capable of changing his behaviour and thus reduce offending.
48. It will be immediately obvious that we have set out significantly more detail of the OASys report than did the judge in his Decision and Reasons. The judge rather boldly states the appellant is unlikely to reoffend. The judge has not taken into consideration, or indeed set out, the appellant’s current situation. It is said that he is living with his family; however, he was living with his family prior to the commission of the offences. He does not set out how it is that his family’s involvement is assisting him in adjusting his behaviour. It is not said whether he is actually in employment despite having been at large for six months. The offer of a job from the friend would seem to indicate that he was not then working. In short, the judge has made findings that the appellant does not represent a genuine, present and sufficiently serious threat to the fundamental interests of society without any sufficiently detailed assessment of why it is that he does not. Neither does the Judge set out what particular fundamental interest of society is in issue. As indicated above, the judges erroneously attributed the offending to be behaviour as a minor which he was not. The judge noted that he has behaved well since his release but that was a period of only six months and at a time when he was on licence. In terms of finding that he is well integrated the judge has taken into account the length of time he has been in the UK and the fact that he has been educated here and has family here. However, he has made no comment at all as to how that fits with his offending as it cannot be said that a person who breaks the laws of a country is integrated into the society of that country.
49. The judge’s findings as regards to rehabilitation are also far from clear. The judge appears to have concluded that the appellant has rehabilitated himself through changing attitude and courses undertaken while in custody but at the same time finding, at paragraph 21, that his rehabilitation needs to continue which could not happen in Belarus. He fails to explain why.
50. Deportation cases, and particularly those involving family members of EU nationals who have acquired a right of permanent residence, are cases which require particularly careful and detailed consideration and given the importance of the decision both to the appellant and to UK society, it is vital that decisions are properly reasoned. This one is not. The judge’s findings are in many aspects completely unreasoned including at paragraph 24 where he says that the appellant has learned his lesson and is unlikely to reoffend. That is not only unreasoned but does not appear to be supported by the evidence of the OASys report.
51. For all the above reasons we find the judges made errors of law material to the outcome. We find that none of the findings can stand and the Decision and Reasons must be set aside in its entirety to be redecided. It is appropriate, because of the number of findings to be made, that the matter is remitted to the First-tier Tribunal.
Notice of Decision
52. The Secretary of State’s appeal to the Upper Tribunal is allowed. The First-tier Tribunal’s decision is set aside in its entirety. The matter is remitted to the First-tier Tribunal for a full rehearing.

No anonymity direction is made.

Signed Date 27th April 2017

Upper Tribunal Judge Martin