Tribunal decisions

The decision

IAC-FH-NL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01406/2013

THE IMMIGRATION ACTS

Heard at The Royal Courts of Justice
Decision & Reasons Promulgated
On 11 July 2016
On 8 November 2016

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

mr Mario d'ambrosio
(ANONYMITY DIRECTION NOT Made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr T Bobb, Solicitor of Aylish Alexander Solicitors
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS
1. The appellant, who was born on 3 January 1969, is a national of Italy, who claims to have arrived in this country in 2006, although as he is an EEA national and therefore not subject to immigration control, no record of his entry was made. In circumstances which will be set out below, the respondent on 26 June 2013 made a decision to deport him but the appellant's appeal against this decision was allowed by First-tier Tribunal Judge Herbert sitting at Hendon Magistrates' Court on 19 August 2015. The respondent appealed against this decision and in a hearing before me on 9 November 2015, I found that Judge Herbert's decision had contained a material error of law such that the decision had to be re-made. It having been accepted at the outset by both parties that in the event that I found there to have been an error of law in Judge Herbert's decision it should be re-made by the Upper Tribunal, the hearing was then adjourned so that I could re-make the decision, having heard up-to-date evidence from the appellant. Accordingly, as this is the re-hearing of the appellant's appeal, I shall again refer to the parties as they were originally, that is to Mr D'Ambrosio as "the appellant" and to the Secretary of State as "the respondent".
2. Following the hearing on 9 November 2015, I gave a full judgment setting out the background to the decision to deport the appellant and also my reasons for finding that Judge Herbert's decision could not stand. I incorporate much of what was said in that decision below.
3. Before entering this country, the appellant had been living in the USA, where he had eight convictions recorded against him from 1990 to 2007 (as appeared from the pre-sentence report which had been prepared before his sentence for the index offence which will be referred to below). These include robbery, assault, harassment and drug-related offences. He also has convictions in Italy for failure to report for call-up, but it was the appellant's case (again set out within the pre-sentence report) that he should not have been convicted of these offences, because he had been living in the USA when he was first called for national service.
4. In this country, the appellant was convicted at Thames Magistrates' Court on 24 June 2011 for battery and criminal damage, the circumstances being that he punched and kicked a female victim with whom he lived when she returned home after going out without him (because he had been too intoxicated to attend a party with her), and damaged her property. He denied the offences, but was convicted and sentenced to a community order (100 hours of unpaid work and supervision for twelve months).
5. Although other complaints were made against the appellant alleging very serious offences, these did not lead to criminal charges, on one occasion because an alleged victim claimed that the appellant had threatened to kill her if he was convicted. These allegations are also set out within the pre-sentence report.
6. Then on 24 January 2013 the appellant was convicted of an exceptionally serious offence of rape, for which he was sentenced to a total of eleven years' imprisonment, being eight years' custody plus a further three years' extended license period. He was also convicted of a count of assault in connection with this rape. There were several aggravating features within this offence. The offence was sustained, it involved serious violence, including the use of a weapon, and furthermore, after being bailed with a condition not to contact the victim, in defiance of that order, the appellant approached the victim, threatened her and subjected her to further violence. He ran a defence which was not believed (that the victim had been a willing party in a sadomasochistic relationship) but in the judge's words "the jury were not deceived, they were not hoodwinked and you were convicted". Again in the judge's words "in my view... this was a sustained attack, involving the use of a weapon, and it has other aggravating features about being in her own home". With regard to the danger posed by the appellant, the judge found as follows:
"... Ignoring ... the convictions in the United States of America and also ignoring ... the allegations made by other women, I have come to the firm view that you do present as a significant risk of serious harm by the commission of further specified offending."
7. Subsequent to the appellant's conviction and sentence for this exceptionally serious offence, the respondent on 26 June 2013 made the decision to deport him which was the subject of the appeal before Judge Herbert.
8. The appellant's appeal before Judge Herbert was heard on 19 August 2015 and, as already noted above, in a Decision and Reasons promulgated on 28 August 2015, Judge Herbert allowed the appellant's appeal. When granting the respondent permission to appeal against this decision, First-tier Tribunal Judge J M Holmes noted that "it was common ground before the judge that the [appellant] had never acquired a permanent right of residence in the UK". This was because although on his own case he had been resident in the UK for over five years, he had not been exercising treaty rights throughout that time.
9. The respondent's arguments, which had been set out within the very full grounds and expanded orally before me at the previous hearing were as follows. First, Judge Herbert had been wrong when stating within one of the numerous paragraphs within his paragraph 9 that "Regulation 21 therefore applies and therefore deportation can only be made [sic] except on serious grounds of public policy, public health or public security", because this is a test which would apply in the case of a European national who had acquired a right of permanent residence, which this appellant had not. Secondly, and in any event, when considering whether the personal conduct of the appellant represented a "genuine, present and sufficiently serious threat affecting one of the fundamental interests of society", in light of the judge's finding (set out within the sixth paragraph within paragraph 9 of that decision) that the evidence which he considered "lead me to the clear view that he does pose a medium risk of re-offending and that that risk is towards the lower end of the medium bracket of re-offending", his conclusion that the appellant does not present a "sufficiently serious threat" is inadequately reasoned. Thirdly, Judge Herbert's reliance on what he considered to be the appellant's improved prospects of rehabilitation if he remained in the UK rather than being removed to Italy was not open to him in light of the guidance given by the Court of Appeal in SSHD v Dumliauskas & Others [2015] EWCA Civ 145. It was submitted on behalf of the respondent that in light of the guidance given in that case Judge Herbert should not have regarded it as a factor of any weight (even if such a finding was open to him on the evidence) that, as he put it at paragraph 12 "put bluntly, there is a greater risk of the appellant re-offending should he be removed to Italy than should he remain in the United Kingdom". Fourthly, the judge had been wrong to find as he also did at paragraph 12, that "there is no risk at present and will not be a risk to anybody either in Italy or here as the appellant will be incarcerated until at least July 2016" and then going on to state that "to a certain extent therefore his decision is somewhat premature and therefore I have to cast my mind forward to some extent to see what the future risk would be in a year's time".
10. Mr Jarvis, who had been representing the respondent at the earlier hearing as well as at this re-hearing of the appeal, submitted that "with respect to Judge Herbert" his decision had been "manifestly unlawful from top to bottom". The judge had misunderstood the nature of the different protection levels applicable depending on whether or not an applicant had a permanent right of residence and did not appear to appreciate the high public interest in deporting this appellant. Mr Jarvis at the error of law hearing did not shy away from the submission that on the facts of this case the decision which Judge Herbert reached was perverse.
11. In my previous Decision I recorded that Mr Bobb's submissions in answer to the respondent's case were very brief. He accepted that Judge Herbert's statement within his multi-paragraph 9 that in this case "deportation can only be made except on serious grounds of public policy, public health or public security [sic]" did not correctly state the law but suggested that this was "nothing but a typing error" which Mr Bobb suggested was clear when one read the decision as a whole, in which reference as made as to whether the appellant presented a "sufficiently serious threat" which was the correct test. With regard to the judge's finding that he would pose a greater risk in Italy than in the UK, Mr Bobb said that the judge had been correct.
12. I was in no doubt that Judge Herbert's statement in the first paragraph of his paragraph 9 that in the case of this appellant "deportation can only be made... on serious grounds of public policy, public health or public security" was clearly wrong (because this test was applicable only where an applicant had a permanent right of residence, which this appellant did not) and could not be explained away as a "typing error". I also considered that the judge appeared to have considered the appeal through the prism of what might be best for this appellant, without having due regard to the very great public interest in deporting those who represent a serious threat to one of the fundamental interests of society, which in this case was the need to protect the public from the risk of serious crime. So, when Judge Herbert stated, within the sixth paragraph of paragraph 9 that "my view is in this rather sensitive and borderline case that the assessment by NOMS in May 2013 of a medium risk does not reach the high threshold that the appellant poses, two years later, a serious threat", this betrays a misunderstanding of what must be established before deportation can be justified. The test is not, as the judge appeared to believe, whether or not there was a high risk of the appellant re-offending, but whether the risk posed by this appellant's continued presence in the UK was sufficiently serious as to justify deporting him. Nowhere in his decision did Judge Herbert demonstrate that he had in mind the public interest in removing from this country persons who pose even a medium risk of committing offences of such a serious nature as this appellant had in the past and might in the future continue to commit. Without needing to make a finding as to whether or not the decision was perverse I considered that it was sufficient for the purpose of finding a material error of law (which I did) that I set out my finding that Judge Herbert had not adequately explained why he considered that a person who poses even a "medium" risk of continuing to commit such exceptionally serious offences does not for this reason represent a serious threat.
13. Insofar as Judge Herbert considered that it may have been relevant to his decision that the prospects of rehabilitation of this appellant were higher in this country than they would be in Italy, he did not appear to have had regard to what was said in the judgment of Sir Stanley Burnton in Dumliauskas (with whose judgment the other members of the court agreed) at paragraph 54, as follows:
"I do not consider that in the case of an offender with no permanent right of residence substantial weight should be given to rehabilitation. I appreciate that all member states have an interest in reducing criminality, and that deportation merely exports the offender, leaving him free to offend elsewhere. However, the whole point of deportation is to remove from this country someone whose offending renders him a risk to the public. The Directive recognises that the more serious the risk of re-offending, any offences that he may commit, the greater the right to interfere with the right of residence."
14. In my previous decision, giving my reasons for finding an error of law, I also set out what Judge Herbert stated at paragraph 10 of his decision, as follows:
"I am also mindful, although it is not a direct consideration but as a matter of commonsense, there must be concern if a person is to be deported to another European jurisdiction where all the safeguards in place are designed, written and set out in English. With the best will in the world it is highly unlikely that the various documents, probation reports and body of evidence on the appellant's progress of [sic] lack of it whilst in custody would be available to the Italian authorities. One of the dangers that occur when foreign criminals either come to the United Kingdom or are removed is that the full documentation does not accompany them. That matter simply needs to be recorded in such a decision as this."
15. As I have already found, Judge Herbert does not seem to have had regard to the judgment in Dumliauskas when setting out this concern, in particular to what is said at paragraph 55 of that judgment, as follows:
"Furthermore, as I mentioned above, a deported offender will not normally have committed an offence within the state of his nationality. There is a real risk of his re-offending, since otherwise the power to deport does not arise. Nonetheless, he will not normally have access to a probation officer or the equivalent. That must have been obvious to the European Parliament and to the Commission when they adopted the Directive. For the lack of such support to preclude deportation is difficult to reconcile with the express power to deport. In my judgment it should not, in general, do so."
16. Accordingly I found that Judge Herbert had not applied the correct test, considering wrongly that "serious grounds of public policy, public health or public security" had to be made out, and failing also to explain adequately why in this case the fact that the appellant posed a medium risk of re-offending, given the seriousness of the offences he had shown he may commit, did not constitute a sufficiently serious threat to justify his deportation. For these reasons Judge Herbert's decision had to be set aside and re-made.
17. It is right that I record again that although at the outset of the error of law hearing, both representatives had agreed that in the event that the Tribunal was to find an error of law the decision should be re-made by the Upper Tribunal, at the conclusion of that hearing, when I had indicated that I would find an error of law because I considered that there were serious errors within Judge Herbert's decision, Mr Bobb, on behalf of the appellant, asked me to consider remitting the appeal back to the First-tier Tribunal and recusing myself from any further involvement in this appeal. His reason for so asking appeared to be that I had expressed the view during the hearing that the appellant's offending had been exceptionally serious and that the judge had not put in the balance properly, as he ought, the very high public interest there must be in protecting the public in this country from further offences of this type. Having considered Mr Bobb's submissions in this regard very seriously indeed, I was not persuaded either that the appeal should be remitted back to the First-tier Tribunal for re-hearing or that I should recuse myself.
18. With regard to retaining the appeal within the Upper Tribunal, Judge Herbert had already found that at the very least this appellant posed a medium risk of re-offending, and it had also been accepted that he had not established the right to permanent residence in this country. Accordingly, there was no need for there to be a complete re-hearing before the First-tier Tribunal and the proper course was for the Upper Tribunal to re-hear the appeal with the benefit of such further updated reports as might be adduced, if either party wished to do so, and also hearing evidence from the appellant and anyone else he wished to call on his behalf.
19. With regard to the suggestion that I should recuse myself, I repeat what I have already stated in this regard, which is that there is no legitimate reason why I should do so. This appeal was part heard before me, and the reasons which I gave (and have repeated in this Decision) for finding an error of law were founded entirely on the papers contained within the file together with the submissions made by the parties' respective representatives, and were bound to be carried forward into the resumed hearing. That is what happens when an appeal is adjourned part heard. An applicant is not entitled to a change of judge part way through a hearing because he or his representative are unhappy about the way his case is progressing.
20. Accordingly, I gave directions for the re-hearing to be heard, before me, on 11 July 2016, which it has been, which included a direction giving the parties permission to adduce further evidence if so advised so long as this was filed and served by a specified date.
The Resumed Hearing
21. At the hearing, I heard evidence from the appellant, who adopted his most recent witness statement, prepared for this hearing, and was cross-examined. I was referred to an updated OASys assessment dated 27 June 2016 (that is just before the hearing) (although the interview on which it was based had been conducted the previous February) and heard submissions on behalf of both parties. I will not set out below everything which was contained within the report or everything which was said to me during the course of the hearing, but I have had regard to everything contained within the file, whether or not the same is specifically referred to below.
22. In cross-examination, the appellant was asked whether he recalled some of the matters set out in the updated OASys Report, such as refusing to return to his cell on 18 June 2015 and having to be restrained, which the appellant claimed not to recall. He also disputed a lot of what was written about disputes he had had whilst in custody. His answers, in my judgment, were evasive when asked about the circumstances in which he had admitted that he had committed rape. He said that in order to be accepted on a course he knew he had to accept the charge, but claimed that he had in fact accepted his guilt some time earlier, "within a year from my last time I was in court, sometime last year". He claimed this was immediately after the hearing before Judge Herbert, in about November 2015. When it was pointed out to him by the Tribunal that the probation officer who wrote the most recent OASys assessment stated that during her interview with him he had continued to deny the offence the appellant claimed that "we never had that conversation". He said further that "I don't recall telling her that I didn't do the offence". Later on, he also disputed other observations made by the Probation Officer such as where she said that he had not said that he believed in male superiority. He went as far as to say that the report "should be positive" because "I am looked at as a role model in prison". He claimed that he had never had a proper introduction to his probation officer "because of the charge of rape".
23. The appellant also claimed to have been targeted by one of the prison officers who had taken it upon himself to attack him. He also denied saying in interview that he was in debt.
24. In re-examination the appellant claimed that he had been "trying to recover my belief in God" and denied that he had ever threatened officers. He also denied sexually touching the victim when he had had the argument with her. He also denied that he had ever subjected his wife to sexual abuse.
Submissions
25. On behalf of the respondent, Mr Jarvis submitted that, as required within Regulation 21(5) of the 2006 EEA Regulations (which will be discussed below), this appellant did constitute a genuine, present and sufficiently serious threat to this country. The appellant did not have a permanent right of residence and the nature of the risk of re-offending was sufficiently serious as to justify his deportation on grounds of public policy. In the circumstances it was proportionate to deport him to Italy.
26. Mr Jarvis addressed the Tribunal as to what was meant by various terms contained within the OASys Report, for example that there was a probability of proven re-offending of 30% in the first year. He also referred to that part of the report which assessed that the appellant was a high risk to members of the public. Although the probation service regarded a risk of a 1 in 3 chance of re-offending, low in the context of their own work in terms of what this Tribunal had to assess, this was more than enough to show a present threat.
27. Mr Jarvis also submitted (and this is a matter which I consider below) that the appellant was an unreliable witness who had lied in the past and been found to have lied by a jury. He had a history of manipulating evidence and never genuinely accepts he is at fault, save when it is an alternative to deportation. The Tribunal had heard no evidence from his sister or mother, and insofar as it is said that he knows nothing and no one in Italy, there is no reason why he could not be supported by his family. There is no evidence that he would not be. Further, no case had been put forward that he could not work in Italy nor had the Tribunal been given any evidence of private or family life in the UK.
28. On behalf of the appellant, it was submitted that Judge Herbert's findings of fact that the appellant did have a private and family life in this country should stand. While it could not be disputed that if this appellant re-offended there would be a possibility of serious harm, the issue which had to be determined was whether it was probable that he would offend again. The report assessed the probability of the appellant re-offending as "low".
29. In answer to a question from the Tribunal as to whether or not it was accepted that a 30% risk was a serious threat, Mr Bobb submitted that the Tribunal either accepted he was a "low" risk or not.
30. Referring to the finding at page 13 of the OASys assessment that "it is my assessment there is a high risk of [the appellant] committing sexual and physical violence towards women he is involved in an intimate relationship with", Mr Bobb emphasised that this assessment was qualified by the caveat that "the risk can only be reduced should [the appellant] address the causes of his offending". That would address the issue. While it was acknowledged that there was a public interest in deporting serious criminals, the decision still had to be proportionate. The process of being in prison must reduce the risk in some way, especially if the prisoner has addressed his offending behaviour.
31. Regarding the risk of re-offending, Mr Bobb repeated his submission that if the risk was reduced, that would go to the question of whether he now presented a sufficiently serious threat to date to justify his deportation. He asked the Tribunal to accept that the appellant had made efforts to address his offending. He also emphasised that in the OASys Report it was suggested that he should undergo other courses when he was on licence, which would all go towards reducing any risk that was currently there.
32. While Mr Bobb accepted that the Court of Appeal in Dumliauskas had stated that "substantial" weight should not be given to the prospect of rehabilitation in this country as opposed to the country to which an applicant would be deported, this did not mean that no weight should be given to the prospects of rehabilitation.
33. In the absence of the appellant, Mr Bobb then addressed the court on the basis that the OASys Report had given no indication or consideration whatsoever as to how losing a wife and two children and a home might have impacted on this appellant's character and personality. As Mr Bobb put it, "we are not saying he is a great upstanding guy" or that he had an unblemished character; it was accepted he had committed a terrible crime but as made clear in the witness statement given by his mother, no one seemed to recognise that he had just lost his wife. With regard to his wife, there was no evidence of abuse to her and the Tribunal was invited to disregard a suggestion that he had abused his wife.
34. With regard to the gaps in his explanation of his motivation, Mr Bobb suggested that it might be that the appellant's failure to explain himself properly was because people were sceptical about any explanation he gave. He was entitled to have his side of the story told, although ultimately it was a decision for the Tribunal as to what view the Tribunal took as to his explanation. The Tribunal must appreciate the circumstances in which he committed this crime, which was relevant when considering what risk he posed in the future.
35. When attempting to distinguish the decision in Dumliauskas from this case, Mr Bobb advanced what I regarded as the extraordinary proposition that "it would not be in anyone's interest for him to be deported", because although it might be said that the citizens of this country would be safer "what is to say that a British citizen would not go on holiday to Italy and be raped there?"
36. Having made this rather bizarre suggestion Mr Bobb continued by stating that "a degree of commonsense has to be shown. A degree of shared interest in people not committing crimes anywhere in the EU", which the Tribunal noted at the time seemed to be precisely the argument which had been rejected so robustly by the Court of Appeal in Dumliauskas.
37. Having then submitted that the appellant was not a "recidivist rapist" and was "not somebody who is likely to do this again" (which is not as will be discussed below consistent with what is said in the OASys Report), Mr Bobb then suggested that the decision was not proportionate anyway because his right to physical and moral integrity encapsulated his right to continue his rehabilitation. He also had a family life with his brother and his sister in this country. It would, claimed Mr Bobb, be "unduly harsh to seek to deport someone to Italy who hasn't been there for 42 years". The Tribunal would have to give maximum weight to the period of time spent in the UK.
38. In conclusion, Mr Bobb submitted that:
"If one really delves into the facts of this case, although he committed a really serious crime - which was not his first offence, because he had had a few brushes with the law - on the totality of the evidence and in particular that of his mother and his brother and sister and his own evidence, it was possible to conclude that this was a one off offence brought about by the particular situation he found himself in".
39. When it was pointed out to him by the Tribunal that the index offence could not sensibly be described as a "one off" offence because the appellant had returned and assaulted the victim again, Mr Bobb accepted that there could be no excuse for his returning and assaulting the victim. However, whatever the Tribunal made of the evidence, the appellant does now say that he accepts his guilt. While it was conceded that in the initial stages he did not accept his guilt, many offenders had difficulty in accepting guilt initially.
Discussion and Findings
40. It is common ground that because this appellant is an EEA national, when considering whether or not to uphold the decision to deport him, the Tribunal must have regard to Regulation 21 of the Immigration (EEA) Regulations 2006, which provides as follows:
"21- (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....
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, 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 concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(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.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person 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 the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin...".
41. Accordingly the first question that must be addressed is whether or not (in accordance with Regulation 21(5)(c) the appellant represents "a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society" such as to justify his deportation. This decision would have to be proportionate.
42. Clearly, there is a huge public interest in reducing the risk of serious crime in this country, and to the extent that the appellant's conduct represents a serious threat that he will commit further crimes, especially given the seriousness of the crimes he has shown he may be likely to commit, this would affect one of the fundamental interests of society. The first issue that must be decided is accordingly whether or not the threat the appellant poses is a present one and sufficiently serious such that deportation would be proportionate. The Tribunal must have regard to the factors set out within Regulation 21(6), which I have had. I note that the appellant is relatively young and healthy, there is no reason why he cannot get a job if returned to Italy, and he had been in the UK only about six years before being sentenced to such a long term of imprisonment. It is apparent from his offending also that his social and cultural integration into this country was not high and I take account of the fact that very little evidence was given as to his private or family life here. Although he left Italy when he was very young, he has lived there since (as noted in the respondent's original grounds of appeal he spent six months living in Italy in 2010 "fighting to obtain his residency and obtain acceptance that he was an Italian national") and he was previously married in that country and speaks Italian. It appears that he has a brother and extended family in Italy as well and he had previously been deported from the United States to Italy following convictions for criminal offences in that country.
43. Having factored into my decision the considerations set out in Regulation 21(6), I now have to consider whether the threat posed by the appellant if he is allowed to remain in this country is genuine, present and sufficiently serious to justify his deportation and in this regard I take into account the most recent OASys Report, together with the evidence he gave and the submissions which were made on his behalf.
44. Turning to the OASys Report, it is right that I record that I have rarely seen a more discouraging report about an offender. I do not propose to set out what is said in this report in huge detail, but will refer to some extracts from it. The offence itself (as described at page 8) was obviously horrific, but what makes this appellant the more dangerous is not just that he was a person who was prepared to commit such an awful offence but that in the view of the writer of the OASys assessment he did not recognise the impact and consequences of his offending on the victim, the community or wider society (see at 2.6 on page 9 of the very long assessment). It is also the case (and I note that this was inconsistent with the evidence which the appellant gave to the Tribunal at the hearing) that according to the writer of the report the appellant "vehemently denied the offences that he has been convicted for" giving a different account, which is set out at page 10. It is recorded that he told the probation officer that "the victim introduced him to the world of sadomasochism". The writer of the report noted again that the appellant had "vehemently protested his innocence throughout the interview" and regarded his version of events "overall... [as] a calculated ploy... to defame the victim's character in order to favour his". She further found that "it is my assessment that [the appellant's] offending behaviour is strongly underpinned by his sexist and hostile attitudes towards women... [which] attitude is characterised by a belief in male superiority, thus promoting a desire to dominate and exert violent control". Further, the appellant "presented himself as an individual with no consideration to the ramifications of his behaviour, victim empathy or remorse".
45. Then later (at page 12) the writer of the report considers that the appellant's "criminal history demonstrates an individual who is more than willing to use violent behaviour against a stranger when he feels it is justified and I am of the belief that his robbery conviction may have been to sustain his drug use, however, I am unable to substantiate this". At page 13, the following assessment is made:
"[The appellant] currently poses a high risk of serious harm to members of the public, specifically females. This is due to his denial of the offences, disdain towards the victim, his hostile and sexist attitudes towards women which I believe stem from his view of male superiority. In addition he minimises history of being abusive towards women. It is my assessment there is a high risk of [the appellant] committing sexual and physical violence towards women he is involved in an intimate relationship with".
46. It is right that the writer does then state (as Mr Bobb referred the Tribunal to in his submissions) that "the risk can only be reduced should [the appellant] address the causes of his offending".
47. The assessment contains details of occasions when the appellant was in dispute with those running the prison he was incarcerated in, which as I have noted the appellant continues to deny.
48. In the formal assessment, under "probability of proven re-offending", the probability is said to be 30% within one year, which while this may be "low" in the context of other prisoners, is still, in my judgment, a very serious risk indeed when one considers the sort of offence which the appellant is capable of committing and the effect this would have on the public. The risk in the community is said to be "medium to children, high towards members of the public and low in all other categories". He is also said to represent a "medium risk of reconviction for a sexual crime, high for a non sexual violent crime".
49. On the final page of the report, when assessing the "likelihood of serious harm to others", although the risk in custody is said to be low (presumably because the appellant is not at large) his "risk in community" is stated to be high to the public, high to a known adult and medium to children.
50. Although signed off in June of this year, the assessment had been conducted on 8 February 2016, but this is beyond the time when in evidence the appellant claimed to have accepted his guilt.
51. I have to have in mind that the evidence which the appellant gave to the Tribunal is completely at odds with what is recorded in the assessment by an experienced probation officer. There is, in my judgment, no reason whatsoever why she should not accurately have recorded what the appellant had told her, so I accept that the appellant did indeed continue vociferously to deny having committed the offence of which he was convicted, as he had before the jury. I found the answer that the appellant gave the Tribunal that he had accepted his guilt because without an acceptance of guilt he would not be able to go on a course revealing; in my judgment, his motivation for going on this course is not because he considers he has a problem (if he did he would have accepted his guilt from the outset) but because he considered that unless he went on the course his chances of successfully challenging the deportation order would be significantly reduced. It is the case that this appellant has consistently denied committing the very serious rape but has been disbelieved on every occasion.
52. In my judgment, this appellant represents an enormous risk to the public if he is at large in this country. He is clearly a very dangerous individual and the threat which he poses currently is extremely serious, such that the decision to deport him is entirely proportionate. I do not regard this decision as in any way finely balanced; having regard to all the factors in this case, as set out above, the decision is entirely justified. Mr Bobb's suggestion in his closing submissions that it would be in nobody's interest to deport him clearly had no merit. It is in the interests of the British public, who would otherwise be at considerable risk of becoming a victim to his continued offending. The risk to the public is in my judgment so high that, having regard to the factors set out within Regulation 21(6) of the 2006 Regulations, his deportation is entirely proportionate. It follows that when re-making this decision, I must dismiss the appellant's appeal.

Decision
I set aside the decision of First-tier Tribunal Judge Herbert who had allowed the appellant's appeal against the respondent's decision to deport him and substitute the following decision:
The appellant's appeal is dismissed.
No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Date: 4 November 2016