Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

First-tier Tribunal No: DA/00743/2018

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 30 March 2023

Before

UPPER TRIBUNAL JUDGE BRUCE

Between

William George
(no anonymity order made)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr O’Ryan, Counsel instructed by Turpin Miller Solicitors
For the Respondent: Mr Bates, Senior Home Office Presenting Officer

Heard at Manchester Civil Justice Centre on 9 January 2023

DECISION AND REASONS
1. The Appellant William George is a Belgian national who has lived in the United Kingdom since 2004. He was 8 years old when he arrived; today he is approaching 27 (date of birth 27th March 1996). That long history of residence notwithstanding, the Respondent wishes to deport Mr George because in 2017 he was convicted for his part in a brutal killing on the streets of Manchester. Mr George received a sentence of 12 years’ imprisonment for manslaughter.
2. As an EEA national with that long history of living in the UK it is not in dispute that Mr George attracts the highest level of protection against the state’s move to expel him. Regulation 27 of the Immigration (European Economic Area) Regulations 2016 sets out the relevant legal framework:
Decisions taken on grounds of public policy, public security and public health
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(17).
(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.
(7) In the case of a relevant decision taken on grounds of public health—
(a) a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease listed in Schedule 1 to the Health Protection (Notification) Regulations 2010(18); or
(b) if the person concerned is in the United Kingdom, any disease occurring after the three month period beginning on the date on which the person arrived in the United Kingdom,
does not constitute grounds for the decision.
(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.).
3. Applying this framework, it is for the Secretary of State to establish, at the date of this appeal, that there are “imperative grounds of public security” for the Appellant’s deportation. That being the operative test I am going to begin by reminding myself of what that means in practice. I will then consider the evidence and submissions regarding the offence itself, and the ongoing risk posed by Mr George.
Imperative Grounds
4. As set out above, regulation 27 (4) of the 2016 Regs provides that a ‘relevant decision’ (ie to expel) may not be taken in respect of an EEA national who has accrued ten years’ continuous residence except “on imperative grounds of public security”. That form of words first appeared in the Immigration (European Economic Area) Regulations 2006, where the hierarchy of protection that we are now familiar with was first introduced. The Court of Appeal had cause to consider the provision in the case of LG (Italy) v Secretary of State for the Home Department [2008] EWCA Civ 190.
5. LG was a serial offender whose index offence was the brutal assault and robbery of an elderly man, which resulted in a conviction for Grievous Bodily Harm and a sentence of 12 years imprisonment (later reduced to 9 years). The Tribunal dismissed his appeal, finding that LG was "a very dangerous man" who continued “to pose a very serious public risk indeed". LG appealed to the Court of Appeal inter alia on the ground that the imperative grounds test was only intended to protect the UK’s security, and therefore implicitly referred to terrorism. The Court rejected that argument. There was no justification for reading it to mean “national security” [at §35]. The Court did however regard as uncontroversial the proposition that “imperative grounds” must denote a higher threshold than the “serious grounds” test applicable to those with a permanent right of residence. Carnwath LJ considered that the words were “clearly intended to embody a test which is both more stringent and narrower in scope” than that:
“To my mind there is not simply a difference of degree, but a qualitative difference: in other words, level three requires, not simply a serious matter of public policy, but an actual risk to public security, so compelling that it justifies the exceptional course of removing someone who (in the language of the Preamble to the Directive) has become "integrated" by "many years" residence in the host state”.
That being the case, the Court upheld the appeal against the AIT on the ground that it had not sufficiently quantified the difference between the two thresholds in its self direction.
6. Three years later, in Land Baden-Wurttemberg v Tsakouridis C-145/09, the European Court of Justice were asked to consider whether involvement in drug dealing, as part of a large organised crime group, was capable of meeting the imperative grounds test. The Court stressed that ‘imperative grounds of public security’ is a concept which is considerably stricter than that of ‘serious grounds’. It presupposes not only the existence of a threat to public security, but also that such a threat is of a particularly high degree of seriousness, as is reflected by the use of the words ‘imperative reasons’. ‘Public security’ covers both a state’s internal and external security. Thus the Court had previously held that it would cover a threat to the functioning of institutions and essential public services or the survival of the population, as well as damage to foreign relations or military interests. The Court then says this:
“45. It does not follow that objectives such as the fight against crime in connection with dealing in narcotics as part of an organised group are necessarily excluded from that concept.
46. Dealing in narcotics as part of an organised group is a diffuse form of crime with impressive economic and operational resources and frequently with transnational connections…
47. Since drug addiction represents a serious evil for the individual and is fraught with social and economic danger to mankind (see, to that effect, inter alia, Case 221/81 Wolf [1982] ECR 3681, paragraph 9, and Eur. Court H.R., Aoulmi v. France, no. 50278/99, § 86, ECHR 2006I), trafficking in narcotics as part of an organised group could reach a level of intensity that might directly threaten the calm and physical security of the population as a whole or a large part of it.
48. It should be added that Article 27(2) of Directive 2004/38 emphasises that the conduct of the person concerned must represent a genuine and present threat to a fundamental interest of society or of the Member State concerned, that previous criminal convictions cannot in themselves constitute grounds for taking public policy or public security measures, and that justifications that are isolated from the particulars of the case or that rely on considerations of general prevention cannot be accepted.
49. Consequently, an expulsion measure must be based on an individual examination of the specific case (see, inter alia, Metock and Others, paragraph 74), and can be justified on imperative grounds of public security within the meaning of Article 28(3) of Directive 2004/38 only if, having regard to the exceptional seriousness of the threat, such a measure is necessary for the protection of the interests it aims to secure, provided that that objective cannot be attained by less strict means, having regard to the length of residence of the Union citizen in the host Member State and in particular to the serious negative consequences such a measure may have for Union citizens who have become genuinely integrated into the host Member State.
7. The effect of this jurisprudence is reflected in the Secretary of State’s current policy document covering expulsion of EEA nationals, Public policy, public security or public health decisions (Version 7.0, published September 2022):
Imperative grounds of public security are not defined in the EEA Regulations 2016. The threshold may be interpreted more widely than threats to the state or its institutions, and can, for example, include serious criminality, such as drug dealing as part of an organised group. See: Tsakouridis (European citizenship) [2010] EUECJ C-145/09.
In the case of P.I (Imperative grounds of public security) [2009] EUECJ C-348-09 the Court of Justice of European Union held that it was open to member states to consider that those crimes referred to in Article 83(1) of the Treaties of the European Union (TFEU) constitute a particularly serious threat to the fundamental interests of society and are capable of justifying a decision on ‘imperative grounds of public security’ provided the manner in which such offences were committed disclose particularly serious characteristics and the person in question poses a genuine, present and sufficiently serious threat.
The areas of crime covered by Article 83(1) of TFEU are:
• terrorism
• trafficking in human beings and sexual exploitation of women and children
• illicit drug trafficking
• illicit arms trafficking
• money laundering
• corruption
• counterfeiting of means of payment
• computer crime
• organised crime
This list is not exhaustive and other crimes without a cross-border element may also be relevant depending on the nature and severity of the offence, the circumstances of how the offence was committed and whether it has characteristics considered to pose a threat of a particularly high degree of seriousness.
The Offence
8. Mr George has only one conviction, but it is an extremely serious one. It is for his part in the death of a 18 year old man, Mr Abdul Hafidah.
9. On the 12th May 2016 Mr Hafidah turned up in Moss Side, Manchester, with what was perceived to be “hostile intent”. It does not appear to have ever been disputed that Mr Hafidah was armed with a knife and that he had, on an earlier occasion, taken part in an assault on another local man, which had resulted in that man’s arm being broken. A group of boys and men were gathered at a sports ground known locally as the ‘Rec’ when Mr Hafidah was spotted by them. It was accepted as fact by the trial judge, Sir Peter Openshaw, that Mr Hafidah was a member of a Libyan/Somali gang known as the ‘Rusholme Crips’, and that the men gathered at the Rec were all members of, or associated with, the rival ‘AO gang’. Judge Openshaw records that there was a “long history of gang feuding and tit for tat violence between these rival gangs”, which included the attack in which Mr Hafidah had broken someone’s arm; evidence was adduced at trial that “some Libyan kid” had driven at and knocked over an AO gang member with a car; Hafidah had held another man up at knifepoint. So it was that when the group gathered at the Rec became aware of Hafidah’s presence in the area, they gave chase to him. The short version of events thereafter is that Mr Hafidah made off, was chased down, was captured and was killed.
10. The extent of Mr George’s involvement in that event is set out from the sentencing remarks of Sir Peter Openshaw. The prosecution pieced together these events from extensive CCTV footage, and from the evidence of 20 witnesses to a crime that took place in broad daylight on a Thursday afternoon. What happened was this. Mr Hafidah received a telephone call. Shortly thereafter he turned up on Westwood St, Moss Side, described by Judge Openshaw as AO territory. He saw the group near the Rec and changed direction, hoping to avoid them. He hid in some bushes as 4 of them got into two cars to drive down Westwood St, presumably to try and catch him. As the cars passed he broke cover and ran off. Someone in the cars spotted him. They u-turned and drove fast back up the street. The two passengers jumped out and gave chase on foot. Then others joined the chase.
11. Mr Hafidah could not be found. The defendants regrouped at the top of Westwood St, and again set of deliberately in different directions so as to cover more ground. Eyewitnesses testified to seeing Mr Hafidah shortly thereafter running down Moss Lane East towards the busy intersection with Princess Parkway. One of those chasing him was said to be armed with a hammer, another was said to have a knife. Hafidah asked a passer-by to call the police. The men involved in the chase at this point were all convicted of murder as a joint enterprise: as Judge Openshaw puts it, they must have known that some of their number were armed with deadly weapons that were to be used on Mr Hafidah. The group run through the rush-hour traffic, causing chaos and alarm. It is at this point that Mr George makes an appearance, on his bike:
“Abdul Hafidah, by now realising he was in mortal peril, tried to open the door of a passing car but failed to do so and the car drove off. As they entered the other side of Moss Lane East, William George, on his bike, overtook the other two so as to be leading the chase. He got off his bike and confronted Abdul Hafidah…”
12. Judge Openshaw goes on to describe in detail the horrific assault that followed, perpetrated by several of those chasing Mr Hafidah. He was beaten, had a hammer thrown at him, and deliberately stuck by a car; his body was found to have multiple defence knife wounds in addition to the fatal blow that struck his neck. It should be recognised that none of these blows were inflicted by Mr George. His involvement was nonetheless important, as Judge Openshaw explains:
“He arrived late at Westwood Street, on his bicycle, just as the others were running off in pursuit of Abdul Hafidah, but he saw them ahead of him and joined in. As I have already said, having searchers on bicycle was very necessary, bicycles being faster than those on foot and more manoeuvrable than those in cars. When he went down the northern limb of Westwood Street I am quite sure that he went as a ‘scout’ and in doing so he was performing a valuable service and will be sentenced on that basis. Once Abdul Hafidah had been spotted, William George’s greater speed mean that he was able to overtake the other and he was therefore he first to come face to face with him in Moss Lane East. Because he did not himself have a knife, and because Abdul Hafidah did, William George dismounted from his bike and held that up in front of him to protect himself from Hafidah who was no doubt flashing his knife at him. In confronting Hafidah in this manner, William George enabled the others, on foot, to catch up, which they did. The others then took over the offensive action, William George followed behind, he had by then played his part. He did not, it seems to me, participate in the final attack, no doubt that was why he was first away from the scene as they ran off down Cross Cliff Street, having surrendered his bike to someone else. That no doubt is the reason why he was acquitted of the murder, but this is, it seems to me, a bad case of manslaughter because he played a vital part in the search for Abdul Hafidah, he joined the hunt and helped bring him to bay, although he discontinued before the final assault”.
13. The Secretary of State relies on the sentencing remarks I have set out above as an authoritative description of Mr George’s involvement in the offence. I accept that.
Gang Membership
14. The Secretary of State also relies on the sentencing remarks in respect of an another important part of her case before this Tribunal: her submission that Mr George is, or could be again, a member of the Moss Side gang the ‘AO’. It is clear from the sentencing remarks taken as a whole that Judge Openshaw was in no doubt that the context of the murder of Abdul Hafidah was gang warfare. In his opening remarks he says this:
“I find as fact that each convicted defendant was a member or at least affiliated to the rival AO gang; some had AO signs or symbols on their mobile phones; a couple even referred to the gang as their ‘family’”
15. Later he refers specifically to the Appellant:
“At six minutes to five, at 16.54 as shown on the telephone schedule adduced in evidence in the second trial, a call was made from an untraced telephone, number 1760, to Abdul Hafidah. Since there are numerous calls made by that phone to William George, to Rimekell Samuels and one call to Nathanial Williams, all of whom were AO members, I draw the conclusion that whoever controlled that phone was an AO member or supporter”.
16. And in closing acknowledges this:
“William George was 20 at the time, he is now aged 21; of course I accept that some allowance must be made on account of his youth. He has no previous convictions. The gang affiliation evidence in his case was limited to one photograph. He called impressive character witnesses on his behalf. He has provided other references; he was playing as a semi-professional footballer with prospects or at least the possibility of a promising sporting career ahead of him. He has written a letter expressing evidently sincere regret; he even concedes that he was guilty of the offence for which he was convicted, which is the start of rehabilitation”.
17. In respect of the ongoing risk from ‘AO’ more generally Mr Bates sought to rely upon an online article which appeared in the Manchester Evening News in April 2021 detailing the murder of 17 year old Mohamoud Mohamed, killed by four other teenagers as part of what is reported to be an ongoing “blood feud” between the Moss Side based AO gang and the Rusholme Crips1. This, submitted Mr Bates, was evidence of an ongoing pattern of ‘tit-for-tat’ violence, which there was a risk that Mr George would be drawn back into. Although he avers that he wants to move away from Moss Side, his parents continue to live there and he did not deny that he would be returning to the area, if only for visits. Mr Bates asked me to note that at the time of Mr Hafidah’s murder Mr George was only visiting the area – he had by that time been living in Morecombe for almost two years, where he (and in fact another of his co-defendants) attended college on a football scholarship.
18. For his part Mr George denies that he is now, or has ever been, a member of any association called the ‘AO gang’. His parents say the same. His mother attests that he had, until his arrest, always been a “good boy” who had stayed out of trouble. They all insist that there is no risk that he would be involved in any criminal or gang related activity in the future. Balancing these claims against the references in the sentencing remarks about hand gestures etc. I enquired of the parties what, for these purposes, constitutes a ‘gang’. To answer that question Mr O’Ryan called evidence from Ms Rebecca Clarke.
19. Ms Clarke is a Senior Lecturer in Criminology at Manchester Metropolitan University who has been observing Mr George’s case since the trial back in 2017. Prior to joining Manchester Metropolitan Ms Clarke was the head of research and policy for the Greater Manchester Probation Trust. She has spent a number of years researching the policing of gangs in the area. Most significantly in 2013 she and a colleague received funding from Manchester City Council to undertake a major piece of work on what is colloquially known as the “gang database” maintained by Greater Manchester Police (GMP).
20. One thing that Ms Clarke’s work on the GMP database highlighted was that there is no academic or political consensus about what constitutes a ‘gang’, nor the standard of proof to be applied when considering evidence of gang association for the purpose of the database. Ms Clarke explained that the Home Office definition of what constitutes a ‘gang’, and so justifies intelligence gathering, is in her view extremely wide. That definition, prosecution narratives and the media’s desire to sensationalise matters all feed into one another. In Ms Clarke’s view this can give rise to problems in interpretation of events. She agreed that at one end of the scale there are clearly ‘gangs’ in Manchester that are large and efficient organised crime groups, very often involved in the large scale importation and distribution of drugs. The most infamous examples of these, historically, were the ‘Donnington’ and ‘Gooch’ gangs of the 1980s. On the other hand there may be groups of friends who hang round together, and in the manner of teenagers, make up a name for their ‘gang’: that name might appear in a music video, and be accompanied by hand signs, but in truth it is nothing more than a group of friends, who may or may not as individuals be involved with criminality.
21. As far as the present case is concerned Ms Clarke accepted that the premise of the prosecution against Mr George had been that this was a ‘tit-for-tat’ gang attack, but said that in all the time she had spent researching gangs in Manchester she had never seen clear evidence that the ‘AO gang’ actually exist as criminal network. The only times that she has ever heard the name AO was in this prosecution, and in related media coverage. For Ms Clarke there remains a “real question” over whether the killing of Abdul Hafidah was anything other than an altercation between some young people: it is perfectly possible that a series of violent incidents can occur – and escalate – outwith a gang framework. As the Judge made clear, there were several of the defendants who had personal reason to want to harm Mr Hafidah. She accepted in this context the suggestion by Mr Bates that such animosity can manifest in what has come to be known as ‘postcode rivalry’. Here the criminality would be confined to the violence perpetrated by one group against another and vice versa but Ms Clarke questioned whether giving this the notional overlay of ‘gang’ fighting is of any value in the criminal justice context.
22. Interestingly Ms Clarke confirmed that she was aware of the existence of the ‘Rusholme Crips’, the alleged affiliation of Mr Hafidah and the other boy said to have been murdered by AO, Mohamoud Mohamed. Her knowledge of that gang did not however correlate with the reported press/prosecution narrative in those cases. According to her 2013 research the Rusholme Crips were not Somali/Libyan teenagers but were made up of considerably older, established criminals of other ethnicities.
23. This has not been an easy matter to determine, involving as it does a number of considerations.
24. The first question has been answered for me. I proceed on the basis that the ‘AO gang’ existed in some form at the time of the offence in 2016. That is because it is clear from Judge Openshaw’s sentencing remarks that there was sufficient material provided by the prosecution to satisfy him of its existence: he refers to photographs, hand gestures and messages all of which indicated gang affiliation. I place considerable weight on the finding of this experienced judge. I note that there is also reference to such evidence in the probation service’s OASys report.
25. The second question is also answered for me. Mr George was, at the time of Judge Openshaw’s remarks, found to be a member of that gang (although as I return to below, the evidence suggests that his involvement was peripheral, or possibly temporary).
26. What that ‘gang’ meant in practice is less easy to say. The people involved clearly acted in joint enterprise in the commission of this particular crime. For the purpose of his sentencing decisions, that was what Judge Openshaw was primarily concerned with. My decision must however necessarily take in wider considerations. I can only uphold the Respondent’s decision to deport if I am satisfied that there are imperative grounds of public security to do so. If those grounds are to encompass the submission that there remains a danger of gang activity, I need to have some idea as to what that activity might be.
27. It certainly does not appear to be organised crime. It is striking that not one of the ten defendants who faced prosecution for the killing of Abdul Hafidah had a drugs conviction. Nor did any of them have any other convictions that might be probative, or even indicative, of an involvement in crime organised for financial gain, such as excise evasion or trafficking. Only three had any previous convictions regarded as relevant by Judge Openshaw – two for robbery and one for possession of a bladed article and battery. A number of them, including Mr George, attended college full time and as Judge Openshaw puts it, showed “talent and promise which, had it been directed right, might have led to entirely worthwhile lives”. All of this would tend to suggest that the ‘AO gang’ was towards the end of the spectrum where Ms Clarke placed a loose affiliation of associates and friends, rather than the kind of organised crime group that the ECJ were considering in Tsakouridis.
28. It remains the case, of course, that this was an association of people who came to together for the purpose of killing, or causing harm to, Mr Hafidah. That was crime of the most serious order, and there were several aggravating features of the case. The group took the law into their own hands, to punish Mr Hafidah for what they regarded as his crimes; a large number of assailants targeted one man; they “hunted him down”; they did so in full view of terrified onlookers; Mr Hafidah’s body was left lying in one of Manchester’s busiest roads, causing immense distress and alarm to members of the public. Mr George was, as found at trial, centrally involved in Mr Hafidah’s death, not because he took any part in the assault, but because he played a key role in the hunt. In those circumstances it does not matter that the only direct evidence of an association with AO was the single photograph referred to in the sentencing remarks: if nowhere else he joined this ‘gang’ the minute he got on his bike and pedalled after Mr Hafidah. The question then arises: what is the likelihood of Mr George ever becoming involved in such a group action again?
Future Risk
29. William George was a promising footballer. He had moved away from home almost two years before this offence, having secured a semi-professional contract at Morecombe FC and a scholarship to Lancaster College. He had GSCEs, went straight from school up to Morecombe, had no criminal convictions, and a part-time job in a restaurant. He had also worked coaching children football. Before the First-tier Tribunal he relied on the evidence of number of witnesses who spoke to his good character. He had by all accounts a good relationship with his parents, who had provided him with a stable and supportive home. That was his life until that afternoon in May 2016.
30. His involvement in the killing of Mr Hafidah changed all of that. His football contract has been terminated and he did not finish college. He has spent almost all of the past seven years in prison and has only recently been released on licence. He is now living in a bail hostel some distance from his parents. He has no job and is not currently in education.
31. One imagines that the stark contrast between these two phases of Mr George’s life presented the probation service with something of a challenge when they were tasked, in 2018 and then in 2019, with conducting an assessment of the future risk that he might pose. That he remained in prison when they undertook their assessments of him meant that there were at that stage no ‘real-world’ lifestyle, accommodation, or support factors to assess. I bear that in mind as I read the OASys reports that were the product of these assessments. These reports serve as professional ‘snapshots’ of Mr George’s progress towards rehabilitation at the date that they were undertaken, and are only one part of my overall evaluation of risk going forward. I am indebted to the work of Mr George’s solicitor who undertook a helpful ‘contrast and compare’ exercise between the two reports which was of great assistance to me.
32. The first assessment was conducted in April 2018 (published later in July) when Mr George was detained at HMP Garth. It appears that the writer did not have access to the sentencing remarks of Judge Openshaw, and it is perhaps for that reason that his or her summary of Mr George’s involvement in the offence is lacking, simply stating – apparently on the basis of CPS materials - that having chased the victim he had then fled the scene after Mr Hafidah swung a knife at him. It is noted that peer influence was a factor in his involvement and as such ‘lifestyle and associations’ is identified as a potential problem going forward. Mr George’s assertion that he was unaware that any of his co-defendants had involvement in a gang is rejected as being “very unlikely to be true” (at the time of writing the author had been waiting for information specific to Mr George’s possible gang involvement from the specialist Xcalibre police unit). He did however accept that the offence itself was unplanned, leading him to note that ‘impulsivity’ is also a concern. The writer records that Mr George expresses “generally pro-social” attitudes and concludes that the real question is whether, if he returned to Moss Side, he would be drawn back into “association with negative peers”. Although at the time of writing, relatively soon into the sentence, Mr George still had to be assessed as presenting a high risk of harm to the public, the future predictions for his risk of reoffending on release were as follows: his OGRS 3 score was 16% chance of reoffending within two years, the OGP risk of non-violent reoffending in the same period was 13%, and his OVP risk of violent offending was placed at 11%. All of these scores are categorised as ‘low’. As a result, the author notes, Mr George was ineligible for a number of rehabilitative courses that he had expressed an interest in taking whilst in prison.
33. The second report is dated the 31st July 2019, upon completion of the assessment. The headline scores of a ‘low’ risk of future reoffending across all categories is maintained, as is the notional ‘if released today’ high risk to the public. It is however important to note that the writer of this report had more information before them than the author of the 2018 assessment. First, the writer of the 2019 report clearly had a fuller understanding of Mr George’s involvement in the death of Mr Hafidah. It records how he acted as a ‘scout’ (the term used by Judge Openshaw), how it was he that caught and detained the victim long enough for the rest of the group to catch up. It better reflects the joint enterprise conviction by recording use of a weapon. In respect of potential gang membership the 2019 report notes that the only evidence of Mr George’s involvement in AO was a single photograph produced in evidence by the CPS. This was contrasted with the position of some other co-defendants who had ”several indicators” of AO involvement. The author of the 2019 report also had access to police intelligence, and concludes in respect of Mr George: “It is speculated that he was on the periphery of the gang due to his friends/associates which is supposed by the Xcalibre police unit’s response that they do not hold any intelligence that suggests he was actively involved in criminal activity”. The offence itself was “opportunistic and random” and “lifestyle and associates” are identified as the primary issues to be addressed moving forward. A further email from the probation service, dated the 1st February 2019, describes Mr George’s prison record as “exemplary”, although I should note that he himself told me that he had had a ”few” adjudications against him during his sentence.
34. At the time of the appeal before me Mr George had been released back into the community for some six weeks. The only updated material I have from the probation service is a letter dated the 23rd December 2022 which states that he was subject to weekly reporting, and that he had complied with all requirements thus far. He was assessed as eligible and willing to pursue employment opportunities but was unable to do so because of Home Office restrictions. The probation officer writes that Mr George has expressed clear goals for his future including stable employment and accommodation. He presents as motivated to achieve these goals.
35. In addition to the professional assessment of the probation service, I have been provided with a report by Jane Roberts, a Chartered Forensic Psychologist. Ms Roberts interviewed Mr George for a total of 4 hours, conducted standardised assessments and had regard to various documents including the sentencing remarks. Her report is dated the 8th March 2022. She summarises her findings as follows:
“1.3. Assessment using the HCR-20 v3 indicates that Mr. George presents a low risk of violence in his community, and assessment using the LS-CMI indicates a low risk of general offending. These findings are consistent with the assessments reported in the OASys.
In my opinion, the main risk factors that characterise and elevate Mr. George’s risk of future violence are; antisocial peers, especially those in a particular geographical area, and attitudes about violence and crime being normalised.
1.4. Assessment using the SAPROF (Vogel et al, 2012) to examine the presence of protective factors that mitigate against violence risk indicates that Mr. George has a high level of protective factors present, assuming release to the UK. In my opinion, his key protective factors are; social network, his pro-social life goals, his financial management ability and coping skills. Present to some degree were the factors of work, leisure and self-control; Mr. George would be likely to benefit from further developing these specific factors. Mr. George would not have such strong protective factors if he was deported to Belgium”.
1.5. In my opinion, Mr. George presents a low and manageable risk if released into the community in the UK.
36. Ms Roberts records the evidence – consistent with the testimony I have heard – that Mr George grew up in a stable home environment. His mother Mrs Adolay Thomas has worked in the NHS for many years as a nurse. His father William George Snr is employed at the University of Manchester in buildings management. They both placed a high value on education, and on good behaviour. The family were, from their first arrival in Moss Side from Belgium, concerned about crime in the area. Although Mr George did not share his parents’ enthusiasm for academia, he did complete his GCSEs and went to 6th form college to study history. He did not however finish that course as he was scouted and therefore went to pursue his dream of becoming a professional footballer. He found it difficult being away from home but accepted the sacrifices he had to make it pursuit of the long term goal.
37. Ms Roberts identifies several positive factors for Mr George. He expressed pro-social attitudes that were evidenced by his history of education and pursuing his football career. He has several friends who have no criminal records and lead pro-social lifestyles. Prior to his incarceration he had a good employment history, even at his young age. He had held jobs involving responsibility including coaching younger people and when he worked in a restaurant he had been trusted to open and close up etc. His family are important to him. He has no problems with drugs or alcohol. He has no mental health issues. In prison he completed courses on victim awareness and anger management. There are no reported problems in respect of his “treatment or supervision response”.
38. Negative factors that emerge from Ms Robert’s report include that Mr George was involved in a number of altercations with other prisoners during his sentence, where tempers flared and violence was used. This demonstrated some level of instability, and Ms Roberts considers that perceived provocation by another remains the most significant risk of Mr George finding himself in trouble again. He also reported having had a couple of fights at school, and obviously he was involved in the index offence. This means that there is a partial or possible history of problems with violence. His peripheral attachment to the AO gang is problematic because gang association is “strongly associated with anti-social behaviour”. Trauma was also recorded as being a partial or potential problem in the past, with Mr George having reported seeing violence and crime in his neighbourhood. Ms Roberts was concerned that Mr George showed only limited insight into what kind of scenarios might lead him into trouble in the future, but she agreed that he showed good motivation in remedying that.
39. Ms Roberts also identified Mr George’s future living situation as a potential risk. That is because if he returns to Moss Side he will be returning to an area which he himself describes as violent and plagued by crime. On the other hand if – as he expresses an intention to do – he will move away from the area, he will be away from the stabilising influence of his parents. On this matter I heard evidence from Mrs Thomas and Mr George Snr who explained that although they would like to, they do not intend to move from their home in Moss Side. They have established links in the community, have lived there a long time and it is very convenient for their jobs at the Manchester Royal Infirmary and the University respectively. They intend however to maintain a close relationship with their son, and said that they would give him whatever support he needed. In respect of future employment, Mr George reports that he would like to work in sports/fitness, possibly as a Personal Trainer. He is however realistic about the possibility that this might not work out, and is also considering training for a profession in the construction industry, such as bricklaying or plumbing.
Conclusions
40. I remind myself that it is for the Secretary of State to show not simply that a serious matter of public policy is at stake by Mr George’s continued presence in the United Kingdom, but that there is an actual risk to public security, so compelling that it justifies the exceptional course of removing someone who (in the language of the Preamble to the Directive) has become "integrated" by "many years’ residence in the host state”. The Secretary of State’s policy document helpfully summarises the kind of circumstances in which such ‘imperative grounds’ may be found. These include those crimes referred to in Article 83(1) of the TFEU where the manner in which such offences are committed discloses particularly serious characteristics and the person in question poses a genuine, present and sufficiently serious threat. The areas of crime covered by Article 83(1) of TFEU are:
• terrorism
• trafficking in human beings and sexual exploitation of women and children
• illicit drug trafficking
• illicit arms trafficking
• money laundering
• corruption
• counterfeiting of means of payment
• computer crime
• organised crime
41. The policy document notes that this list is not exhaustive and “other crimes without a cross-border element may also be relevant depending on the nature and severity of the offence, the circumstances of how the offence was committed and whether it has characteristics considered to pose a threat of a particularly high degree of seriousness”. Mr O’Ryan did not dispute that involvement in serious violence could qualify.
42. The first finding I make is that I am not satisfied, at all, that Mr George has, or has ever had, any involvement in organised criminality, beyond his involvement in this offence. I bear in mind that this was a truly horrific attack, and that no matter how “opportunistic and random” Mr George’s involvement was, he played a key role that day. The extent of his culpability is reflected in the very lengthy sentence imposed by Judge Openshaw and it was clearly an orchestrated attack. However beyond that joint enterprise, there is simply no evidence to suggest that he was involved more generally in organised crime. Whilst the evidence before Judge Openshaw clearly established the existence of AO in 2016 there is very little evidence before me to establish what that actually means. None of the co-defendants had any convictions for drugs or other organised crime indicators such as computer crime, counterfeiting, guns or trafficking (see the list above). Mr George had no convictions at all. The specialist police unit tasked with investigating gang crime – the ‘XCalibre’ unit referred to in the 2019 OASys report – holds no intelligence to suggest that Mr George has any such involvement (at least it certainly did not at the time of that report, and if any such intelligence has emerged since, the Secretary of State has failed to present it in this appeal). Nor would such involvement be generally consistent with him having moved away from Manchester on a college scholarship, or him working as a waiter on his Saturdays off.
43. Looking forward, that leaves these questions to be answered.
44. Is there a genuine, present and sufficiently serious threat that Mr George will become involved in gang violence again? In his submissions Mr Bates pointed to the 2021 murder of Mohamoud Mohamed to demonstrate that the “gangland feud” between the Rusholme Crips and the AO gang remains live. Regardless of whether AO have any financial motive for protecting their ‘turf’ (as would be the case if they were drug dealers), Mr Bates speculated that the feud may simply be an extreme version of postcode rivalry. At the hearing I expressed my doubts about whether such rivalry ever develops absent a financial motive, but Mr Bates found some support for his suggestion in the evidence of Ms Clarke, who agreed that a dynamic of ‘tit-for-tat’ violence can develop between rival groups of young people. I have therefore considered whether there is a risk that Mr George would become involved in that again. The conclusion I have reached is absolutely not. This is a young man who has derailed his entire life, and thrown away most of his 20s, by an “impulsive” decision to get on his bike and chase Mr Hafidah that day. That is a decision that he will have to live with for the rest of his life but I am quite sure it is one that he would not take again. That is reflected in the remorse he expressed as early as the trial, his willingness to undertake courses such as victim awareness, his consciousness of how his conviction has impacted upon his life and those of his parents, and his decision upon leaving prison to move away from Moss Side altogether. Now a more mature and reflective individual, I am confident that there is a low risk of him being drawn back into any gang violence. My conclusions are supported by the professional assessment undertaken by the probation service and Ms Roberts.
45. Is there a genuine, present and sufficiently serious threat that Mr George will become involved in any other kind of violence again? This was a question posed by Mr Bates in his submissions, as I think it worthy of consideration for three reasons. First, there are indicators of Mr George having the propensity to ‘lash out’ (as evidenced by his own admissions of fighting at school and in prison): as Ms Roberts notes, he displays limited insight in how to manage those impulses. Second, he has a continued connection to an area of Manchester where there is said to be a problem with violent crime. Third, he now faces the challenges of re-entering society with a serious criminal conviction. That conviction will by its nature present him with serious obstacles to employment; it seems remote in the extreme that he could for instance go back to pursuing coaching badges or to working with young people. The path ahead of him is clearly difficult. If he is drawn into a world of crime, there will be the attendant risk of serious violence, whether or not gangs are involved.
46. I have given careful consideration to those submissions, but having had regard to the OASys reports, the statements of Mr George and his family, and the evidence of Ms Clarke and Ms Roberts, I am satisfied that Mr George is well placed to see off these threats to his future. In his evidence he struck me as deeply remorseful. He has had an extreme and profound education about the dangers of violence: a young man has lost his life and Mr George himself has had his own aspirations and hopes for the future ruined. When he says that he has no intention of getting involved in any criminal offending in the future, I believe him. He has the stabilising influence of his parents and the opportunity to engage in post-conviction rehabilitation and retraining programmes. As I note above, it is the professional assessment of Ms Roberts and the probation service that he presents a low risk of reoffending. Although a low risk is not the same is no risk, there is certainly not the evidence before me to establish that there are imperative grounds for Mr George’s deportation. In summary, the Secretary of State has failed to discharge the burden upon her and the appeal is allowed.

Notice of Decision
47. The appeal is allowed with reference to the Immigration (European Economic Area) Regulations 2016.

Upper Tribunal Judge Bruce
25th January 2023