Tribunal decisions

The decision

IAC-AH- -V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: OA/05557/2015

THE IMMIGRATION ACTS

Heard at Birmingham ET
Decision & Reasons Promulgated
On 7 February 2017
On 14 February 2017

Before

UPPER TRIBUNAL JUDGE KAMARA

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Mr Wojciech zolnierkiewicz
(ANONYMITY DIRECTION not made)
Respondent

Representation:

For the Appellant: Mr D Mills, Senior Home Office Presenting Officer
For the Respondent: Mr S Vokes, counsel instructed by Cartwright King Solicitors

DECISION AND REASONS

Introduction
1. This is an appeal against the decision of a panel of the First-tier Tribunal, promulgated on 8 December 2016. I granted permission to appeal on 5 July 2016.
Anonymity
2. No direction has been made previously, and there is no reason for one now
Background
3. On 18 April 2002, the respondent was convicted of aggravated rape (acting in common with other persons) in Poland and sentenced to 5 years' imprisonment. It is common ground that the respondent has been exercising treaty rights in the United Kingdom between 5 May 2006 and 25 July 2014. On 26 July 2014, the respondent was notified that he was liable to deportation and given the opportunity to submit any reasons why he should not be deported. Those representations were refused on 5 February 2015.
4. In the decision letter, the Secretary of State explained that it was accepted that the respondent had acquired permanent residence in the United Kingdom. It was noted that Leicester Magistrates Court imposed a Notification Order on the respondent for an indefinite period from 25 July 2014 onwards and that he was required to report to the police. The Secretary of State considered that the issuance of this order was indicative of the serious and continuing risk posed by the respondent. Furthermore, it was said that he had not done any rehabilitative work which might help reduce the risk of reoffending. It was considered that he continued to pose an unacceptable risk to women in the United Kingdom. The decision was said to be proportionate and it was considered the respondent did not need to remain in the United Kingdom to become rehabilitated. Considering Article 8 outside the Rules, the circumstances of the appellant's child, then aged 10 months were considered, however the conclusion was that he was young enough to adapt to life in Poland. Alternatively, should the respondent's Polish partner elect to remain in the United Kingdom, contact could be maintained through modern means of communications and visits. It was said that no evidence of very compelling circumstances had been provided. The respondent was invited to make a voluntary departure or face removal pending his appeal.
5. On 20 February 2015, the respondent travelled to Poland. On 6 March 2015, the respondent sought admission to the United Kingdom under regulation 11 of the Immigration (European Economic Area) Regulations 2006, as a Polish national. He was refused entry by an immigration officer as a person unlawfully seeking to enter the United Kingdom in breach of a deportation order made on the grounds of public policy. He was removed to Poland on 7 March 2015 and his appeal against that decision was received on 19 March 2015.
6. The respondent's grounds of appeal argued that the respondent's expulsion was not proportionate; that the decision was based exclusively on the fact of his conviction; that he did not present a genuine, present and sufficiently serious threat to the public and that the Secretary of State failed to attach adequate weight to the fact that the respondent had acquired permanent residence in the United Kingdom.

The hearing before the First-tier Tribunal
7. At the hearing before the First-tier Tribunal, the panel heard oral evidence from the respondent's partner and submissions on behalf of both parties. The panel found that the respondent had addressed his offending and completed the rehabilitative work required by the Polish authorities. It was further noted that a detective constable had considered that the respondent was at medium risk of reoffending and that the respondent fully co-operated with the Notification Order. The panel concluded that there was nothing to show that he would have a propensity to re-offend, that he was rehabilitated and therefore did not pose a threat affecting the fundamental interests of society. The appeal was allowed under the 2006 Regulations.
The grounds of appeal
8. The grounds of appeal in support of the Secretary of State's application argued that the panel failed to give adequate reasons for findings on material matters. In particular, it was argued that the panel failed to give adequate reasons why the respondent no longer represented a serious risk to public policy.
9. Permission to appeal was granted on the basis that, owing to the respondent being subject to indefinite reporting under a Notification Order, the grounds were arguable.
10. The respondent filed no Rule 24 response.
The hearing
11. Mr Mills accepted that the criticism of the panel's decision could be seen as mere disagreement as said by the First-tier Tribunal judge who refused permission to appeal. He particularly relied upon the third paragraph of the grounds and emphasised that when the police became aware of the respondent's conviction he was placed on the notification order and graded as representing a medium risk of reoffending, despite his stable family life and constant employment. The Leicestershire Police letter at D9 of the appellant's bundle was undated but referred to events in 2015 and this was the latest assessment of risk undertaken by any professional body. By contrast, the panel relied on older documentation from Poland to the effect that there was no risk of reoffending. The panel gave no weight to the United Kingdom police assessment. At the time of the hearing the Leicestershire Police report was the most up to date risk assessment, whereas the panel had placed weight on a parole decision of 2005.
12. Mr Vokes argued that the panel correctly directed itself and placed emphasis on the situation at the time of the hearing. He considered the challenge was that the panel provided inadequate reasons. Mr Vokes asked me to note that there was no challenge to the panel's favourable findings in relation to the documents emanating from the Polish authorities. Furthermore, it was wrong to say that the panel did not consider the notification order. Mr Vokes submitted that the police report was based on an introductory meeting following which the respondent was subject to constant reassessment. The respondent had been fully compliant with this regime.
13. Mr Vokes argued that there was no evidence before the panel to show a propensity to reoffend and consequently it was open to the panel to make the assessment it did.
14. Mr Mills wished to add nothing further.
15. Decision on error of law
16. The panel carried out a concise, but thorough, assessment of all the evidence before them, prior to concluding that there was no evidence to show that the respondent posed a present, serious threat, affecting the fundamental interests of society.
17. At [17], the details of the offending, the sentence, release date on parole and probation end date were set out. The respondent was released on parole on 13 October 2005 and the probation end date was 20 October 2007. There was also expert evidence before the panel to show that by the time of the hearing the respondent's sentence was expunged by virtue of law, in that he could "legitimately state that he had not been convicted."
18. A probation report from the Polish authorities records the fact that the respondent sought permission from a court to travel to the United Kingdom and that he had returned to Poland when required by that court. The respondent sought further permission to return to the United Kingdom on a permanent basis and this was granted.
19. At [22], the panel took into consideration a series of reports relating to the respondent's supervision in Poland and were satisfied that he had addressed his offending and completed the rehabilitative work required of him. At [23] the panel noted that the respondent had not offended in the United Kingdom and referred to the oral evidence of his partner as to their relationship and the respondent's relationship with their child.
20. It is not the case that the panel failed to take the notification order into account. At [25] it is noted that the respondent full co-operated with the Leicestershire Police. At [26], there is an assessment of the content of the police report and further email. The panel particularly noted that the respondent had been assessed as being at a medium risk of offending.
21. The panel concluded that there was no evidence of the respondent having a propensity to re-offend. They were correct in concluding that the report from Leicestershire Police did not amount to any such evidence. It is apparent from that report that the decision to grade the respondent as medium risk was taken following an introductory meeting, with which the respondent fully complied. The follow-up email from the officer concerned stated that if the respondent continued with his stable way of life, "he would probably have been lowered." The email proceeds to explain that a person of medium risk would be visited every 6 months.
22. It is fair to say that the police report does not explain why, in 2015, the respondent was said to be at medium risk of reoffending solely in relation to a conviction dating from 13 years earlier, following which his rehabilitative work was completed 8 years ago.
23. The respondent argues that the existence of the notification order, by itself, is indicative of the serious and continuing risk posed by the respondent. Section 97 of the Sexual Offences Act 2003 states as follows;

97Notification orders: applications and grounds
(1)A chief officer of police may, by complaint to any magistrates' court whose commission area includes any part of his police area, apply for an order under this section (a "notification order") in respect of a person ("the defendant") if-
(a)it appears to him that the following three conditions are met with respect to the defendant, and
(b)the defendant resides in his police area or the chief officer believes that the defendant is in, or is intending to come to, his police area.
(2)The first condition is that under the law in force in a country outside the United Kingdom-
(a)he has been convicted of a relevant offence (whether or not he has been punished for it),
(b)a court exercising jurisdiction under that law has made in respect of a relevant offence a finding equivalent to a finding that he is not guilty by reason of insanity,
(c)such a court has made in respect of a relevant offence a finding equivalent to a finding that he is under a disability and did the act charged against him in respect of the offence, or
(d)he has been cautioned in respect of a relevant offence.
(3)The second condition is that-
(a)the first condition is met because of a conviction, finding or caution which occurred on or after 1st September 1997,
(b)the first condition is met because of a conviction or finding which occurred before that date, but the person was dealt with in respect of the offence or finding on or after that date, or has yet to be dealt with in respect of it, or
(c)the first condition is met because of a conviction or finding which occurred before that date, but on that date the person was, in respect of the offence or finding, subject under the law in force in the country concerned to detention, supervision or any other disposal equivalent to any of those mentioned in section 81(3) (read with sections 81(6) and 131).
(4)The third condition is that the period set out in section 82 (as modified by subsections (2) and (3) of section 98) in respect of the relevant offence has not expired.
(5)If on the application it is proved that the conditions in subsections (2) to (4) are met, the court must make a notification order.
(6)In this section and section 98, "relevant offence" has the meaning given by section 99.
24. From the above extract, it is apparent that there is no reference to the need for a risk of reoffending to be established by the police force seeking such an order. Accordingly, the mere existence of a notification order does not, without more, indicate that an offender poses a serious and continuing risk.
25. The First-tier Tribunal decision was rational; the reasons were adequate and the assessment of risk was one which was open to the panel.

Conclusions

The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.

The decision of the First-tier Tribunal is upheld.

Signed Date 18 November 2021

Upper Tribunal Judge Kamara