Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00351/2015

THE IMMIGRATION ACTS

Heard at The Royal Courts of Justice in Belfast
Decision & Reasons Promulgated
On 1 August 2016
On 22 August 2016

Before

UPPER TRIBUNAL JUDGE O'CONNOR

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

ROLANDAS [S]
(ANONYMITY DIRECTION NOT MADE)
Respondent

Representation:
For the Appellant: Mr M Matthews, Senior Presenting Officer
For the Respondent: Mr D Jones, instructed by McCallion Keown

DECISION AND REASONS

Introduction
1. The appellant before the Upper Tribunal is the Secretary of State for the Home Department ("SSHD"). I shall refer to Mr [S] as the claimant herein.
2. The claimant, born February 1987, is a national of Lithuania. The claimant was convicted at Newry Crown Court on 19 November 2014 for grievous bodily harm, and sentenced to a term of twelve months' imprisonment and twelve months on licence. As a consequence, on 4 August 2015 the SSHD decided to make a deportation order against him.
3. The claimant appealed this decision to the First-tier Tribunal and that appeal was heard by First-tier Tribunal Judge Grimes on 19 January 2016 and allowed under the Immigration (EEA) Regulations 2006 ("the 2006 EEA Regulations") and on Human Rights (Article 8) grounds, in a decision issued of 1 February 2016.
4. The SSHD appeals to the Upper Tribunal with the permission of Upper Tribunal Judge McGeachy granted on 25 March 2016.
Grounds of Challenge
5. The SSHD's pleaded grounds are lengthy and unfocused but were helpfully recast by Mr Matthews at the hearing in the following terms:
(i) The First-tier Tribunal undertook its consideration for Regulation 21 of the 2006 EEA Regulations unlawfully by first determining whether deportation was proportionate and only then determining whether the claimant represented a genuine, present and sufficiently serious threat to the fundamental interests of society. This is the reverse of the order that the Tribunal should have considered the issues;
(ii) The First-tier Tribunal erred in failing to take into account a significant discrepancy between the evidence given by the claimant and that of his partner, regarding the length of the claimant's abstinence from alcohol.
(iii) Alternatively, the First-tier Tribunal failed to give adequate reasons for resolving the aforementioned inconsistency in the claimant's favour.
(iv) When considering whether the claimant represents a genuine, present and sufficiently serious threat to the fundamental interests of society, the Tribunal erred in falling to take into account, or make findings in relation to, the likely harm caused if the claimant does reoffend;
(v) The First-tier Tribunal erred in its consideration of Article 8 ECHR in failing to direct itself to, and/or lawfully apply, section 117 of the Nationality, Immigration and Asylum Act 2002.
6. I observe at this stage that Mr Matthews withdrew reliance upon the specific paragraphs in the pleaded grounds, dated 10 March 2016, relating to the relevance of the percentage chance of the claimant reoffending.
Discussion and Conclusions
7. As to the first ground, whilst Regulation 21 dictates that it is appropriate to first to consider whether an individual represents a genuine, present and sufficiently serious threat to the fundamental interests of society prior to engaging with whether deportation would be proportionality, to undertake such tasks in reverse order cannot amount to an error capable of affecting the outcome of the appeal in circumstances where, as in the instant case, the decision-maker concludes that there is no genuine, present and sufficiently serious threat to the fundamental interests of society.
8. The only circumstances in which this would not be the case is where the decision maker impermissibly takes into account an irrelevant matter in its consideration of the question of whether the applicant represents a genuine, present and sufficiently serious threat etc. Mr Matthews was unable to identify any such feature of the Tribunal's assessment in the instant case. In the absence of the SSHD establishing that there was such a feature present in the decision making process which had infiltrated the First-tier Tribunal's mind from its earlier consideration of the proportionality assessment, this ground cannot be, and is not, made out.
9. As to the second ground, which Mr Matthews termed "the alcohol issue", the following facts are not contentious:
(i) The consumption of alcohol by the claimant played a large part in the offence which triggered the decision of the SSHD to make a deportation order.
(ii) In evidence to the Tribunal the claimant stated that he had abstained from alcohol for almost two years. His EEA partner asserted that she believed the claimant had not had any alcohol since the night of the assault, which had occurred in May 2012
(iii) The claimant was in detention between October 2014 and the 1 October 2015.
10. On this issue the First-tier Tribunal said as follows:
"18. The appellant also said that he has not had alcohol for almost two years and his partner said she believes that he has not had alcohol since the night of the assault. Given that alcohol was a significant factor in the commission of the assault, I accept that the intention of the appellant to refrain from consuming alcohol, coupled with the licence condition prohibiting its consumption, is a strong factor supporting PBNI's assessment that the appellant poses a low risk of reoffending."
11. The issue as to when the claimant last consumed alcohol, whilst highly relevant, was clearly not determinative of whether he represents a present threat to the fundamental interests of society. One question of significance for the Tribunal when assessing for itself the risk of re-offending was, however, whether the claimant had a current intention to refrain from consuming alcohol, and whether such intention was likely to be borne out in his actions. In coming to its conclusion on this issue the First-tier Tribunal clearly did not leave out of account the aforementioned inconsistency in the evidence. Rather, having taken into account this inconsistency the Tribunal, nevertheless, concluded that there was not a present and sufficiently serious risk of the claimant committing further criminal offences. The First-tier Tribunal were required to give no further reasons that it did on this issue.
12. In reality the above contention formed part of a wider ranging attack by the SSHD on the First-tier Tribunal's conclusion that the claimant did not represent a genuine, present and sufficiently serious threat to the fundamental interests of society.
13. The second limb of this attack is founded in the submission made in the fourth for the grounds identified above. In this regard I invited Mr Matthews to draw attention to any evidence, other than that discussed above, which it was said should have informed the First-tier Tribunal's conclusion on the issue of risk of harm caused as a consequence of any potential re-offending.
14. I was taken to a number of documents, the first being the report from the Probation Board of Northern Ireland, compiled on 5 November 2014. The following is said in that report, under the heading "Risk of Serious Harm":
"Mr Strelciuna's behaviour ... fell short of the threshold for posing a significant risk of serious harm to others in the future ... The defendant has been assessed as posing a medium likelihood of reoffending and not as posing a significant risk of serious harm in the future."
15. A further document, authored on 18 January 2016 by a Probation Officer at the PBNI states:
"Mr [S] has been assessed as not meeting the criteria for a significant risk of serious harm and he is assessed at a low likelihood of reoffending at this juncture."
16. The First-tier Tribunal conclusions on the aforementioned issue read:
"21. I have considered the personal conduct of the appellant. I take into account the judge's sentencing remarks and I accept that the appellant has been convicted of a serious assault which resulted in serious injuries to the victim. However I attach significant weight to the evidence from PBNI and I note that the appellant is engaged with PBNI in offence focussed work and is being supervised at present. I accept that the appellant is currently assessed by PBNI as presenting a low likelihood of reoffending and as not posing significant risk of serious harm to the public. Accordingly I find that the appellant's personal conduct does not represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society."
17. Mr Matthews was not able to draw anything to the Tribunal's attention which the First-tier Tribunal had left out of account, and nothing which could lead to a conclusion that the First-tier Tribunal's findings on this issue were irrational. Indeed, the Tribunal's conclusion was, it seems to me, inevitable; reflecting as it does the evidence before it. It is difficult to see what else the First-tier Tribunal could have said on this issue, in the absence of evidence pointing to a different conclusion.
18. For this reason, I reject the fourth of the SSHD's grounds.
19. Taken as a whole, the decision under the EEA Regulations is in my conclusion unimpeachable. The First-tier Tribunal took into account all the relevant evidence and Mr Matthews has not drawn my attention to any evidence which it left out of account. Its conclusion is certainly not irrational.
20. For all these reasons I conclude that the First-tier Tribunal's decision regarding the 2006 EEA Regulations does not contain an error of law capable of affecting the outcome of the appeal and its decision is to remain standing.
21. As a consequence, as Mr Matthews accepted, the SSHD's challenge to the decision made on the Article 8 ECHR ground is academic and I need not deal with it.
Notice of Decision

The SSHD's appeal is dismissed. The First-tier Tribunal's decision does not contain an error of law capable of affecting the outcome of the appeal.

Signed:

Upper Tribunal Judge O'Connor
Date 22nd August 2016