Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00551/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 October 2016
On 19 December 2016

Before

THE RIGHT HONOURABLE LORD BOYD OF DUNCANSBY
(SITTING AS A JUDGE OF THE UPPER TRIBUNAL)

Between

MEHRAD MOHMADI
(anonymity direction NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr C Lam, Counsel, instructed by David Tang & Co.
For the Respondent: Miss Brocklesby-Weller, Home Office Presenting Officer

DECISION AND REASONS

1. Mr Mehrad Mohmadi is a Dutch national who was convicted of perverting the course of justice and, on 31 July 2015, sentenced to twelve months' imprisonment. The Secretary of State made a deportation order against Mr Mohmadi He appealed the decision to the First-tier Tribunal.

2. The appeal was heard by First-tier Tribunal Judge S J Clarke. By a decision promulgated on 28 June 2016 she upheld Mr Mohmadi's appeal. The Secretary of State appeals with permission against the decision. In this decision letter I will refer to Mr Mohmadi as the appellant as he was before the First-tier Tribunal.

The Law

3. An EEA national may be removed from the UK if the Secretary of State has decided that the person's removal is justified on the grounds of public policy, public security or public health: regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations).

4. Where a decision is taken on the grounds of public policy or public security it must be taken in accordance with the principles set out in Regulation 21(5). These include that (a) the decision must comply with the principle of proportionality, (b) that it must be based exclusively on the personal conduct of the person concerned, and (c) that the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

5. Such a decision cannot be taken in respect of an EEA national with a permanent right of residence except on serious grounds of public policy or public security (Regulation 21(3). The Immigration Judge found that the appellant has not established a permanent right of residence.

6. The decision-maker must take into account considerations such as age, state of health, family and economic situation of the person, the person's length of residence in the UK, the person's social and cultural integration into the UK and the extent of the person's links with the country of origin.

The Circumstances of the Offence

7. On 7 September 2014 a death occurred outside a hotel in London as a result of an assault. One of the appellant's co-accused was convicted of manslaughter. The appellant's conviction related to his removal of a closed circuit CCTV hard drive and monitor which apparently showed the events leading to the man's death. They were hidden in the hotel and only found three days later. The sentencing judge described it as a calculated act and a serious offence.

8. In her determination the Immigration Judge noted that the Secretary of State concluded that the appellant poses a serious risk because the offender manager remained unsure why he did it and that the crime was a serious one.

9. On 23 May 2016 the appellant's probation officer wrote that the appellant's risk of reoffending and his risk of harm to the public are both considered to be low. Against that observation the Secretary of State cites the OASys Report of 4 October 2015 to the effect that the appellant accepted no responsibility for his offence.

10. The OASys Report also noted that the appellant was highly motivated and very capable. The trial judge noted that the appellant had expressed remorse and regret for the consequences of his actions. The appellant also expressed remorse at the hearing before the Immigration Judge. She found that the appellant had not been able to access rehabilitation courses because of the length of his detention. Drawing the issues together she found that the appellant first entered the UK in 2002 and had previously been of good character until committing the offence in question. It was serious because it involved perverting the course of justice but she went on to accept that the appellant had consistently posed a low risk of reoffending and risk of harm to the public.

11. In conclusion the Immigration Judge found that whilst the offence itself can shape the future risk to the public and of reoffending, in this case she accepted that the crime was esoteric, that it was out of character for the appellant to offend and that he has learned from his conviction and custodial sentence. She found that the appellant does not pose a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. She went on to consider the issue of proportionality and considered that it was disproportionate to deport him.

12. Before me Miss Brocklesby-Weller, the Home Office Presenting Officer, relied on the grounds of appeal. She submitted that the Immigration Judge had treated the OASys Report as determinative of the question before her. She submitted that some three months after the sentencing the appellant was noted as accepting no responsibility for the offence and that he was simply moving the monitor from the floor to a safe place. He was not told by anyone to take it and hide it from the police. He put it all down to being in the wrong place at the wrong time. The appellant also stated that he went to the police himself to let them know what had happened that day.

13. So according to Miss Brocklesby-Weller, while he may have been remorseful, he did not accept responsibility and the judge had placed weight on this. She referred me to the sentencing remarks and the fact that the appellant was a willing participant. The appellant had failed to demonstrate how he had changed his offending behaviour following this incident.

14. She further submitted that the Immigration Judge's had erred in her assessment of proportionality.

15. Mr Lam for the appellant relied on his Rule 24 response. He emphasised that this was a careful, thorough and balanced decision by the Immigration Judge and said that the Secretary of State's challenge was more on the basis of the decision rather than on an error of law. He submitted that one could not look at remorse in isolation. It has to have a purpose and that went to the issue to be addressed under Regulation 21(5)(c).

16. The sentence reflected the seriousness. He accepted that the crime of perverting the course of justice was indeed a serious one but it had to be looked at in context. He took me through the various OASys Reports that had been before the Immigration Judge, all of which demonstrated a low category of risk. The appellant was recorded as being highly motivated and very capable.

My Decision on the Error of Law

17. The issue for me is not whether or not I would reach the same decision as the Immigration Judge; it is whether there has been an error of law. The question is whether the Immigration Judge was entitled to conclude from the evidence that the personal conduct of the appellant represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

18. Miss Brocklesby-Weller founded on the observation in the OASys Report which I have quoted above. She submits that the Immigration Judge has made the conclusion of the report the determining factor.

19. In my opinion, having regard to the whole of the Immigration Judge's decision letter, that is not correct. She had the benefit of the evidence from the appellant in person and was able to form her own judgment on whether he was genuinely remorseful. She had evidence that this man, now in his late forties, was previously of good character. She had evidence in the OASys Report that he was highly motivated and very capable. She accepted that there were no rehabilitation courses available to the appellant, a matter accepted by the Secretary of State. She noted that he has substantial family in the United Kingdom and it was clear that he is integrated here.

20. These are all recognised protective factors in assessing risk. In my opinion it is incorrect to say that the Immigration Judge has relied solely on the OASys Report. She was entitled to place weight on the OASys Report but it was only one factor in her overall assessment of the decision that she had to make. Accordingly she was entitled to find as a fact that the appellant did not represent a genuine, present and sufficiently serious threat to one of the fundamental principles of society.

21. There is also a ground of appeal attacking the assessment of proportionality. In my opinion that does not arise since it logically follows on an assessment that the person concerned does represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Since the opposite is true in this case the judge does not require to consider proportionality.

22. I should just make one observation in relation to the grant of permission in which the Judge of the First-tier Tribunal looked at the cases of SSHD v Dumliauskas [2015] EWCA Civ 145 and NC (Essa principles recast) Portugal [2015] UKUT 00520 (IAC). I asked Mr Lam to address these issues. He pointed out these were about rehabilitation following on an assessment of risk that the person posed a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. He suggested that they were not of relevance here. In my opinion for the reason given above that submission is correct.

Notice of Decision

23. I shall dismiss the appeal.

No anonymity direction is made.

LORD BOYD OF DUNCANSBY
Sitting as a Judge of the Upper Tribunal
(Immigration and Asylum Chamber)

Date: