Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/00567/2015

THE IMMIGRATION ACTS

Heard at: Manchester

Decision and Reasons Promulgated
On: 28th September 2016

On: 06th October 2016

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

Secretary of State for the Home Department
Appellant
And

K S
(anonymity direction made)
Respondent

For the Appellant: Mr G. Harrison, Senior Home Office Presenting Officer
For the Respondent: IMD Solicitors

DETERMINATION AND REASONS

1. The Respondent is a national of Poland born on the 18th February 1996. On the 26th May 2016 the First-tier Tribunal (Judge Place) allowed his appeal against the Secretary of State for the Home Department's decision to deport him from the United Kingdom under the terms of Regulations 19 and 21 of the Immigration (European Economic Area) Regulations 2006. The Secretary of State now has permission to appeal against that decision.

Background and Matters in Issue

2. It is not in dispute that on the 13th May 2014 the Respondent was convicted of causing grievous bodily harm with intent and was sentenced to 54 months in prison. The circumstances of the assault are not entirely clear but it was the view of the sentencing judge that the Respondent had taken a lead role in a group attack on a lone individual and he was sentenced accordingly. That was plainly a serious offence and it was proper that the Secretary of State give consideration to deporting the Respondent. Nor had this been the Respondent's first offence. The decision to deport was taken on the 10th November 2015.

3. When the matter came before the First-tier Tribunal the Secretary of State relied on the fact of the conviction, the sentencing remarks of the judge, a 'detention and training order' imposed in respect of an earlier offence and the conclusions of the probation service about the likelihood of further offending. These were set out in an OASys report dated 21st November 2014. For his part the Respondent relied upon his own evidence, that of his mother, and the fact that he had undertaken a 'Thinking Skills' assessment whilst in prison.

4. In its determination dated 26th May 2016 the Tribunal proceeded on the basis that the Respondent had acquired neither ten years continuous residence nor a permanent right of residence under Regulation 15. The central test to be applied was therefore whether the Respondent's personal conduct represented a "genuine, present and sufficiently serious threat affecting one of the fundamental interests of society". The Tribunal held that in this particular case that meant it was bound to assess the risk, at the date of the appeal, of the Respondent being involved in another or similar offence involving violence. The Tribunal had regard to the OASys report and to the sentencing remarks. He then weighed that against the evidence presented by the Respondent and having done so concluded that his "thinking had changed considerably since the OASys report was compiled". Looking at the more up to date evidence, the Tribunal was satisfied that there was not a genuine, present and sufficiently serious threat posed by the Respondent's continuing presence in the United Kingdom and the appeal was allowed.

5. The Secretary of State appeals on the following grounds:

i) The Judge's analysis was superficial and he has failed to have adequate regard to the pertinent risk factors as set out in the OASys report;

ii) The determination focusses solely on those factors that have been addressed by the Respondent, and not upon the matters that were outstanding;

iii) The Judge impermissibly relies on speculation when he comments that teenagers have a poor perception of actions and consequences;

iv) The determination fails to engage with the findings of the OASys report, in particular the identified 'offending trigger' of alcohol.

6. The points made at (i)-(iv) above are in part concerned with the Tribunal's treatment of the Respondent's relationship with alcohol and its involvement in his offending behaviour. The case can be summed up in the closing paragraph of the grounds:

"The Secretary of State for the Home Department contends that this represents a clear on-going risk factor and that as a result there is a present risk of recidivism. It is clear that any such risk would be genuine and sufficiently serious in light of the index offence and the escalation of offending that has occurred in this case"

7. As for the OASys report, this was compiled in November 2014, just over a year after the index offence was committed. The probation officer who compiled it noted that the subject had one previous offence for violence, when he was sixteen years old. The officer asked him about the offence, a vicious assault carried out in the victim's home. The Respondent denied that he had been there and completely refused to take any responsibility for it. When the officer put it to him that his fingerprints had been found in the property, in a position consistent with the victim's account of where he had been standing as he delivered kicks, the Respondent suggested that perhaps he had been there before but he could not remember when. He denied knowing the victim. His attitude towards this offence was similar to that displayed when asked about the earlier conviction, also an assault committed in the company of a friend. He appeared "demotivated" to attend any courses whilst in prison. He was reluctant to discuss his use of alcohol and denied, contrary to the information held on file, that it had any involvement in either of his offences. Given this, it is easy to understand why the officer concluded as he did that the risk of violent reoffending would be classed as "imminent" once the Respondent was released back into the community. The Secretary of State's complaint is that this evidence was not considered properly by the Tribunal and that if it had been, the decision would have been different.

My Findings
8. Given the very serious nature of the Respondent's offending I have given careful consideration to these grounds. I am however unable to find that they are made out. That is because it is clear from the determination that the Judge did have regard to the findings in the OASys report; for the sustainable reasons that he gives, he considered it to be outweighed by the evidence that post-dated it.

9. At paragraph 25 the determination notes the tenor of the sentencing remarks. The Judge is recorded as having found the Respondent to have played a leading role in the assault, and to have displayed no remorse. The only mitigating factor was his young age (he was seventeen at the date of the offence). Paragraph 26 notes the emphasis that Mr Bates, the Presenting Officer on the day, gave to the OASys report. That report had assessed him as presenting a high risk of harm to the public and a medium risk to other prisoners, principally because of the Respondent's attitude to the violence that he had inflicted in the past. At paragraph 28 the Tribunal notes the three areas identified by the probation service which could reduce the level of risk posed by the Respondent: understanding his motivation to react to a situation with violence, association with "pro-social peers" and understanding the effect of alcohol on him.

10. At paragraph 29 the Tribunal finds there to be "no evidence" that the third of these matters has been addressed. Notwithstanding the evidence that alcohol had played a part in the first assault the Respondent had denied that he had any problems with drinking. It goes on:

"30. However, the Appellant has made progress in the other two areas. He has undertaken a Thinking Skills course and, though Mr Bates argued that there was much in it that he did not understand, I find that there is evidence before me that his thinking has changed considerably since the OASys report was compiled.

31. Page 134 of the Appellant's bundle contains evidence from a review after the Thinking Skills course of what the Appellant feels he has learnt. That review was compiled in August 2015. It records that the Appellant has learnt that his thinking and behaviour used to be spontaneous but that now he will stop and think about consequences. He has identified a method of using a green and red flag system to help him think about people who may or may not be helpful to him. In my view, he shows understanding in observing that things in prison are not as they will be out of prison and that he will have to see what happens when he is released. He has also used a Self Help method to keep himself positive and to keep himself out of arguments and keep control over what he says. He has decided to aim towards Enhanced Prisoner Status.

32. Although he has not undertaken an alcohol awareness course it is clear, at page 135, that he now recognises that alcohol was one of the triggers to his offending behaviour.

33. I find honesty and clear sightedness in the Appellant's comments at page 139 where he says that he cannot say 100% that he will not reoffend but that he really does want to try not to and is not going to be doing the same things as before. There is a real difference in this type of comment from the young man who refused to engage with the process of compiling the OASys report".

11. The determination goes on to record the evidence of two members of prison staff. The Respondent's 'Personal Officer', who had worked with him over a period of time, describes his attitude as having come on "leaps and bounds". This view is shared by the instructor in the Plastics Workshop who, having observed his initially "haphazard" behaviour now finds the Respondent to be calmer and more positive. This improvement is noted across the prison records. The Respondent had initially been given a job as a cleaner but had lost that position due to poor work and lack of commitment. The up to date material before the Tribunal showed him to be attending regularly, interacting well with peers and completing all tasks he was given. Although the OASys report had assessed him as presenting a medium risk to other prisoners, there had been no incidents at all. The Tribunal weighs in the balance the fact that the Respondent was 17 when he committed his last offence and that as a teenager he had a poor understanding of his actions. At the age of twenty he has now shown himself to have made progress and matured. All of this led the Tribunal to conclude, at 37: "I find that there is a substantial amount of evidence to back up the Appellant's assertion that he has changed and now wants to get his life sorted out". It is that finding which leads to the appeal being allowed.

12. I cannot see, in light of that evidence-based reasoning, that these grounds have any merit. The damning conclusions of the OASys report are carefully examined against the later evidence. The Tribunal did not ignore the concerns expressed about alcohol, but addressed it squarely in its assessment of the evidence. The assessment of likely recidivism in the OASys report was baed largely on the Respondent's poor attitude. Having had regard to all of the evidence before it the First-tier Tribunal was satisfied that this attitude had changed. It was entitled to allow the appeal on that basis.

Decision

13. The grounds are not made out and the appeal is dismissed. The determination of the First-tier Tribunal is upheld.

14. There is no order for anonymity.

Upper Tribunal Judge Bruce
6th October 2016