Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/01637/2014

THE IMMIGRATION ACTS

Heard at Royal Courts of Justice
Decision & Reasons Promulgated
On 1 August 2016
On 18 October 2016

Before

UPPER TRIBUNAL JUDGE ALLEN

Between

sbh
(anonymity direction made)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr R Khubber, instructed by Turpin & Miller Solicitors (Oxford)
For the Respondent: Mr S Whitwell, Senior Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a national of Sweden. He appealed to a judge of the First-tier Tribunal against the respondent's decision to make a deportation order on 16 August 2014. The order was made as a consequence of the appellant being sentenced to 30 months' imprisonment on 10 January 2014 for sexual assault of a female child under the age of 13.
2. The judge accepted that the appellant had lived in the United Kingdom since 1997 and that therefore he had resided in the United Kingdom in accordance with the EEA Regulations for a continuous period of ten years which entitled him to the enhanced protection from deportation afforded to EEA citizens who had acquired a right of permanent residence in the United Kingdom. The judge noted the details of the offence for which the appellant was committed. A NOMS Report on 3 June 2014 assessed the risk of serious harm resulting from him committing a further offence of sexual assault as high, and assessed the likelihood of his reconviction as low.
3. A letter was produced to the Tribunal, written on 20 April 2016 by the appellant's probation officer. I shall return to this in due course, but it is sufficient for now to say that it emphasised the high risk of serious harm that the appellant posed, giving some detail for this. The judge noted that no evidence had been provided of the appellant engaging with offending-related programmes in prison and that there were no rehabilitation elements in the criminal licence restrictions to which he was subject. The judge noted that efforts had been made by the representatives and by him to elicit detailed evidence from the appellant as to the work he was doing with his probation officer to identify and avoid risk situations but he had failed to provide any such detailed evidence even when led. He considered that the appellant's demeanour throughout the hearing did not demonstrate an appropriate understanding of the seriousness of his offending or the importance of the rehabilitation which it was necessary for him to undertaken. He considered that this assessment had been borne out by the comments made by the probation officer in her letter. The judge went on to consider the issue of rehabilitation, and again this is a matter to which I shall return in greater detail subsequently. He recognised that the starting point for an EEA national with a permanent right of residence was that removal could not take place unless it was on imperative grounds of public security. He was satisfied that the facts of this case were such as to amount to an imperative ground of public security. He went on to consider proportionality and Article 8 of the ECHR in a further section of the decision which again I shall have to return to. There was thereafter a consideration of the family life and private life and the conclusion of the judge was that the appeal fell to be dismissed under the EEA Regulations and on human rights grounds.
4. Permission to appeal was sought, and granted, on the basis that the judge had erred in a variety of respects including failing to consider proportionality under EU law as opposed to under the ECHR, Article 8, misdirected himself in law in taking account of public revulsion and general deterrence when assessing the imperative grounds, failed to take into account relevant factors, in particular failing to take into account that his rehabilitation programme had begun in the United Kingdom and needed to continue in this country, giving undue weight to the letter from the probation officer.
5. Mr Khubber relied on and amplified the points made in the grounds. He argued that the judge had failed fundamentally to apply the relevant EU provisions concerning deportation to the particular circumstances of the case. The judge had accepted that the appellant had established entitlement to enhanced protection. The proportionality evaluation under EU law was not the same as the proportionality question under Article 8 and in particular when it was accepted that the appellant was entitled to the highest level of protection. This was clear from authorities such as Straszweski [2015] EWCA Civ 1245 and in particular in the judge's reliance on matters such as "public revulsion" and "social abhorrence" at paragraphs 57 and 59 of the decision. Mr Khubber argued that the key question in a case where the highest level of protection had been established was whether there was a likelihood of further similar offending. The judge appeared to have confused risk of offending and the kind of harm that might be occasioned. The risk was a low one and that was of significance albeit that if harm occurred it would be serious harm and it was necessary under Regulation 21(5)(c) of the EEA Regulations to show a genuine, present and sufficiently serious threat. Realistically, imperative grounds had not been made out where he had been assessed as being at a low likelihood of reoffending and that was reinforced by his subsequent lack of reoffending. The factors relevant to proportionality which had been set out in the skeleton guidance before the judge had not been taken into account.
6. The judge had also misdirected himself on the relevance of rehabilitation. He was incorrect in concluding that the appellant was not engaging with his rehabilitation and had again conflated two different issues, whether he had actually become rehabilitated and whether he needed to continue with the current existing rehabilitation programme in the United Kingdom. A further point was that taking into account his demeanour was irrelevant. It was important to bear in mind that with regard to the comment that no evidence had been provided concerning his engagement with offending related programmes in prison, it had been shown to the judge that the appellant had applied for the thinking skills programme to assist him with future conduct but he had been told that because he was a prisoner who was assessed as presenting below a certain level of risk he could not be considered for such a programme. Also the judge had attached undue weight to the letter from the probation officer provided a day before the hearing. Less weight should have been given to it because it had not been possible to explore fully its contents that would have been possible if it had been provided earlier, and in particular none of the documentation upon which the assessment was based had been provided. It was also argued that the judge had not adequately engaged with Article 8. There was confusion between the finding that the appellant was not socially and culturally integrated into the United Kingdom and the acceptance that he was entitled to the highest level of protection because of his EU law rights. The strength and quality of his family and private life had not been properly appreciated.
7. In his submissions Mr Whitwell relied upon the Rule 24 response. He argued that the fact that the heading to paragraph 60 to 63 was "Proportionality - Article 8 ECHR" was no more than a typographical or formatting error and one had to look to the substance of what was said there. The core question was the risk of relevant reoffending which it was said was not inconsistent with the existence of the two separate legal regimes. It was not always inappropriate to take account of such matters as public revulsion and deterrence as could be seen from what had been said in Straszewski. Each case turned on its own facts.
8. With regard to the letter from the probation officer the point was that it had to be seen in context. She had felt it necessary to write to the Home Office because despite the low risk of reoffending, more needed to be said. It was clear from paragraph 58 that a number of factors had been taken into account going to reconviction. Paragraphs 52 and 53 should be read in terms of risk of reconviction as well as harm. The matters complained of were points of disagreement only. With regard to rehabilitation it was a question of how one read the evidence. Paragraph 53 was not concerned only with demeanour but there were other relevant matters contained there as well. The judge had found that the appellant had not actively engaged with the UK process that it would be all right to return him to Sweden. He had not engaged with the process in spirit. It was a question of the extent to which a person could ever be rehabilitated for this kind of offence. Paragraph 63 needed to be read as a whole. There had been no application for an adjournment to mitigate the effects of the letters from the probation officer, and weight was a matter for the judge.
9. By way of reply Mr Khubber argued that the determination was structurally flawed and it could not just be taken in the round. There was a flaw in the lack of evaluation of the relevant factors under Regulation 21(5)(c). As regards the letter from the probation officer, the questions with which she was concerned were not the same as those with which the Tribunal was concerned. The latter had to consider the relevant legal questions and this was crucial, referring as it did to the actuality of risk. It was important to note that the process of rehabilitation had begun and was continuing. The question was whether that would be compromised. The judge had confused two different issues. The fact was that the appellant was engaging with rehabilitation and there was a low risk of reoffending. The Tribunal was taken to passages in Straszewski and also in I [2012] QE 799.
10. I reserved my determination.
11. It is clear from, inter alia, the decision of the Court of Appeal in Straszewski, that in a case where the removal of an EEA national who has acquired a permanent right of residence in the United Kingdom is contemplated, on the grounds of public policy or public security, significant importance is to be attached to the right of free movement which can be only interfered with where he represents a serious threat affecting some aspect of public policy or public security and, in the case of a person such as the appellant in this case, that there must be imperative grounds of public security where it is accepted that he has resided in the United Kingdom in accordance with the Regulations for a continuous period of ten years.
12. At paragraphs 11 to 20 the Court of Appeal considered the relevance of matters such as deterrence and public revulsion in such a case. The decision to remove an EEA national who enjoys a permanent right of residence must be based exclusively on the personal conduct of the person concerned. Though cases such as Bouchereau [1978] QB 732 and Marchon [1993] IAR 384 took into account elements of deterrence, the Court of Appeal in Straszewski could see some force in the argument that Marchon could no longer be regarded as representing Community law. It went on to say at paragraph 20 that save in exceptional cases a serious threat to an aspect of public policy or public security was to be determined solely by reference to the conduct of the offender (no doubt viewed in the context of any previous offending) and the likelihood of reoffending. General considerations of deterrence and public revulsion normally had no part to play in the matter.
13. The passages which are challenged in the judge's decision in this regard are essentially paragraphs 57 and 58. Paragraph 57 begins with a reference to Article 83(1) of the TFEU concerning sexual abuse and exploitation of children and the serious nature of those offences. This was also apparent from the UN Convention on the Rights of the Child and the Charter of Fundamental Rights of the European Union. The judge went on to say that the national court is entitled to find that, according to the particular values of the legal order of the Member State in which it had jurisdiction, offences such as those committed pose a direct threat to the calm and physical security of the population. The judge went on to say that the public revulsion at such offences is a significant factor, as is the fact that the elderly appellant received a sentence of immediate imprisonment for what was a first offence. At paragraph 59 the judge recognised that the starting point for an EEA national with a permanent right of residence was that removal might not take place unless on imperative grounds of public security. He said that public security included the protection of children from sexual assault and, because of the social abhorrence at such offences, and the vulnerability of the victims on the long-term impact of such violence, he was satisfied that this was an imperative ground of public security.
14. It has been argued that there are difficulties with both of these paragraphs. They place express reliance on, in paragraph 57 public revulsion, and in paragraph 59 social abhorrence, with regard to the former the public revulsion at such offences was described as being a significant factor. As regards paragraph 59, what was said can however be reconciled to legal principle by the fact that it was a remark made in the context of considering whether or not there were imperative grounds of public security in this case. That was a matter considered in I where among other things the court said that criminal offences which constituted a particularly serious threat to one of the fundamental interests of society or which posed a direct threat to the calm and physical security of the population might fall within the concept of "imperative grounds of public security" as long as the manner in which such offences were committed disclosed particularly serious characteristics. One can see also from paragraph 57 some reflection of this in the reference there to a direct threat to the calm and physical security of the population. I do not read the conclusion on what is meant by imperative grounds of public security as precluding taking into account in the consideration of whether or not conduct crosses the threshold elements of public revulsion and social abhorrence. It is a different question from the issue of proportionality, and of course, as the Court of Appeal in Straszewski emphasised at paragraph 24, it is worth noting that even in a case where it is considered that removal is prima facie justified on imperative grounds of public security, the decision-maker must consider, among other things, whether the offender has a propensity to reoffend in a similar way.
15. It is relevant to note that the subsequent paragraphs i.e. paragraph 60 to 63 purport to be concerned with proportionality and Article 8 of the ECHR. It is also relevant to note that the passages set out at paragraphs 57 to 59 are part of the section headed "Imperative Grounds of Public Security". The judge at paragraph 60 said that no deportation of the appellant could take place unless it was proportionate and based exclusively on the personal conduct of the appellant which represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. That is clearly uncontroversial, and it is also relevant to note that at paragraph 61 the judge made it clear that in arriving at his decision he had not taken into account considerations of general prevention of the commission of such offences nor matters isolated from the particulars of the index offence nor had he reached his decision based solely or mainly upon the commission of the index offence. He made clear his understanding that it was the present risk posed by the appellant which was the appropriate factor. He went on to say that for the reasons he had mentioned above he was satisfied that the personal conduct of the appellant both in the commission of the offence and in his subsequent reaction to attempted rehabilitation led him to conclude that he represented a genuine, present and sufficiently serious threat to one of the fundamental interests of society, namely the prevention of crime and the protection of children from sexual violence.
16. In my view that is a perfectly adequate evaluation of the proportionality issue in this case. It was properly open to the judge in my view to attach the weight he did to the probation officer's letter. No doubt a key component of the evaluation to be made is the level of risk, but I consider that it was properly open to the judge to factor into that evaluation a high risk of serious harm should low risk be triggered. I do not consider that it was wrong of the judge to attach weight to the letter from the probation officer. As Mr Whitwell argued, she clearly felt a compulsion to make the point she did. It is relevant to note the following from her letter:
"The nature of the risk is of sexual harm and the resulting emotional trauma which could be long lasting. The dynamic risk factors that have led to this assessment are HX's apparent capability to orchestrate lone contact with children, as demonstrated at the time of the offence and his lack of understanding of the way in which relationship and other personal difficulties can contribute to sexual offending, leading in turn to a lack of internal controls. HX has also demonstrated only a limited understanding of the impact that sexual offending can have upon children and has minimised the seriousness of his offence. He has also struggled to take responsibility for his offending behaviour."
I do not agree with Mr Khubber that the probation officer could be said to have fallen into the trap of relating her remarks only to the nature of the offence committed. She clearly had other concerns as are set out in the final two sentences of the quotation set above about his ongoing attitude.
17. It was also relevant to note the lack of evidence concerning the appellant's engagement with offending related programmes in prison. The point that Mr Khubber makes about the course for which the appellant was not eligible is not without relevance, but this has to be seen in the context of the judge's findings at paragraph 53 about the appellant's failure to provide detailed evidence as to the work he was doing with his probation officer to identify and avoid risk situations and the fact that he did not appear to appreciate the significance of this type of evidence. The judge was entitled to comment as he did about the appellant's demeanour, and also to consider that that was borne out by the probation officer's remarks in her letter.
18. As regards the issue of rehabilitation, Mr Khubber's argument in essence is that because rehabilitation has been commenced it would be wrong not to allow it to continue in the United Kingdom. This again has to be seen in the light of the judge's remarks at paragraph 53 in the probation officer's letter. It is not irrelevant that if he is not effectively engaging with rehabilitation in this country then his removal would not interfere with such rehabilitation and such rehabilitation as there is could continue in Sweden. There was no application to adjourn in respect of the probation officer's letter, and I consider that the fact that it was not backed up by further evidence does not diminish the weight to which the judge was entitled to attach to it. It was a professional opinion provided by a person who has been the appellant's probation officer for some period of time. It is relevant to note from paragraph 27 that he sees her every week.
19. Nor do I see any arguable error with respect to the Article 8 evaluation. The challenge here is essentially a matter of disagreement. The fact that paragraph 63 is tagged on as it were to the proportionality evaluation is a consequence of the rather untidy structuring of that part of the judge's decision. I am satisfied however that paragraph 63 has to be seen as a separate evaluation of proportionality in the context of Article 8 as opposed to the evaluation in the context of EU law at paragraphs 60 to 62.
20. Bringing these matters together, I consider that the challenge to the decision has not been made out. Although the structuring of the decision of the judge could have been clearer, I am satisfied that he did give an appropriate consideration to proportionality under EU law in the context of the relevant tests. He did not take into account irrelevant matters in that evaluation, and the remarks about public revulsion and social abhorrence were in the context of deciding whether or not the offence was one such as to give rise to imperative grounds of public security, a conclusion to which it was open to the judge to come. The evaluation of the rehabilitation issue was properly open to the judge, and no effective challenge is made out in respect of the Article 8 findings either. As a consequence I am satisfied that the judge did not materially err in law in his decision and his decision dismissing the appeal is maintained.
Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of their family. This direction applies both to the appellant and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed Date 18 October 2016

Upper Tribunal Judge Allen