Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: RP/00044/2016

THE IMMIGRATION ACTS

Heard at Stoke
Decision promulgated
on 13 February 2017
on 16 February 2017

Before

UPPER TRIBUNAL JUDGE HANSON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

AA
(Anonymity direction made)

Respondent

Representation:

For the Appellant: Mr Bates Senior Home Office Presenting Officer
For the Respondent: Miss Rutherford instructed by Fadiga & Co

DECISION AND REASONS

1. This is an appeal the Secretary of State against a decision of First-tier Tribunal Judge V A Cox ('the Judge') promulgated on 19 October 2016 following a hearing at Stoke on 12 October 2016.

Background

2. The appellant, as AA shall be referred to, is a national of Afghanistan born in 1990. His immigration history is set out at some length at [3 - 6] of the decision under challenge. The section which sets out the context of the matters before the Judge is in the following terms "The respondents letter, dated 13 April 2016 explained the reasons the respondent gave for ceasing protection status and refusing the appellant's human rights claim of 17 March 2016 and maintained the decision to deport on the basis that the appellant did not fall within any of the exceptions set out in section 33 of the 2007 Act. The deportation order was served with that letter".
3. In the refusal letter it is noted that the appellant applied for asylum in the United Kingdom but that the application was refused in a letter dated 14 November 2011. The appellant lodged an appeal against the decision which was allowed by the First-tier Tribunal on 22 March 2012. The Home Office were granted permission to appeal to the Upper Tribunal who allowed the appeal on asylum and human rights grounds on 17 August 2012. On 14th February 2013 the appellant was granted asylum and leave to remain until 16 July 2017.
4. On 10 January 2014 the appellant was convicted at Lewes Crown Court of sexual assaults on a female, no penetration, and on 23 September 2014 was sentenced to 30 month's imprisonment. The refusal letter refers to section 72 of the Nationality, Immigration and Asylum Act 2002, which, if applicable, would mean that a person is excluded from protection on the basis that Article 33 (2) of the Geneva Convention applies to them, which will therefore not prevent removal from the United Kingdom.
5. The Judge at [27] finds:

"Whilst there is, of course, the presumption that this is a particularly serious crime based on the length of the sentence I do not find that it leads to the conclusion that the appellant is a danger to the community. It was an isolated incident and the learning difficulties the appellant has will mean that his cognitive skills are less than for the public at large. He was about 24 at the time of the offence but that is of course merely his chronological age and does not reflect his functioning age. That age will be considerably younger on the basis of the expert opinion as to his learning difficulty. He will I find to be more akin to an adolescent and whilst life experience will enhance his functioning I find this is a factor which must weigh in the appellant's favour"

6. At [28] the Judge finds that the sexual offence was a first offence which was found to be "isolated" and that the appellant has therefore rebutted the presumption under section 72 and therefore the certification by the respondent is not conclusive.
7. The Judge proceeded thereafter to consider the appellant's claim to be entitled to refugee status for which reasoning is given at [30 - 41]. The Judge finds that the appellant remains at high risk of harm [37] and at [38] "that there have not been the necessary changes in Afghanistan to affect sufficient change for this vulnerable appellant and find that the appellant does still have a well-founded fear, as previously established".
8. At [39 - 40] the Judge sets out the core findings in the following terms:

39. I therefore find that the appellant has established his claim that his return to Afghanistan would occasion treatment that would breach the United Kingdom's obligations under articles 2 and 3 of the EHCR and Article 15 (c) of the Qualification Directive. The appellant continues to be entitled to refugee status.

Discussion

9. The first issue to note is that the Judge allowed the appeal both asylum, humanitarian protection, and human rights grounds. If the section 72 certification falls, in light of the Judge's findings that there have not been the necessary changes in Afghanistan to show that the well-founded fear previously established no longer exist, the appellant remains a refugee. As a refugee he is not entitled to a grant of humanitarian protection.
10. If the section 72 presumption stands then the appellant is not entitled to seek the protection of the Refugee Convention. The same exclusion will apply to the Qualification Directive claim but cannot impact upon the claims under articles 2 and 3 which are absolute by nature. It is noted that the Secretary of State's grounds challenge the conclusion in relation to section 72 and no further. Even if the Secretary of State therefore succeeds with that challenge any error cannot be said to be material to the decision to allow the appeal as the finding in relation to articles 2 and 3 still stands. This is therefore, in reality, a status appeal.
11. The basis of the challenge is an allegation that the Judge, when considering the section 72 element, failed to give proper consideration to the danger the appellant posed to the community as evidenced in the OASys report.
12. A copy of the report had been provided to the Judge recording that the appellant has been sentenced for the offence of sexual assault against a named individual on 25 June 2011 and that although the appellant pleaded guilty he disputed the evidence provided by the Crown Prosecution Service. The author of the report in the section 2.1, headed 'Analysis of offences', writes:

"In my assessment [AA] displays an entitlement to sex fuelled by jealousy and his frustration the relationship had ended. His action indicates a sexual preoccupation and need for sexual gratification. [AA] claimed that he had not been controlling and would have respected any request to end the relationship or not give consent to sexual activity. His behaviour described in the witness statement would suggest otherwise. [AA] was unable to explain his motivations other than the hurt and jealousy he was experiencing. He does state that he has now come to realise that his actions were wrong. He claims that this was his first sexual relationship and was unsure how to behave."

13. The author of the report, which is dated 12 January 2016, noted the offences involved violence or threat of violence/coercion and had a sexual element.
14. In relation to the examination of pattern of offending, set out at section 2.12 of the report the author writes:

"[AA] does not have any previous convictions for any offences. However it is worth noting that [AA's] last relationship was with [HK] (22/01/90). [H] has two children [IK] (11/02/09) and [MK] (2012). [AA] is the father of [M]. Children's services were involved in this case due to his offence. Prior to custody [AA] was arrested for an alleged sexual offence against [H] including rape, however as the victim withdrew his statement, no further action was taken. [AA] indicated that the relationship is now over and that he has no contact with [H] or the children."

15. It is also noted that, for the above reason, [AA] is considered a risk to children as they were present in the property when the alleged rape occurred despite this not leading to a conviction. The author of the report opines at section 2.13 that the current offences are an escalation in seriousness from previous offending and that the nature of the offence indicates [AA] poses a risk to the public, specifically women and anyone with whom he enters a relationship with.
16. The author notes at section 2.8 "08/01/2016 - [AA] has refused to engage in any core risk reduction work despite being found suitable for CSOTP. He maintains that he was not controlling over his partner by monitoring her movements or telling her what to wear. When discussing the statements that relate to "English slag" "bitch" and further comments raised in the victim's statement which relate to [AA's] attitude towards women in general ("I'm a Muslim and in my country girls to whatever the guy tells her to do"), he denies he has any distorted thoughts about women, believing women are lesser equals to men. He also spat on his victim which he accepts he still cannot explain the aim of this. Denying this was a further insult to 'the lesser sex'.
17. In relation to the assessment of risk of serious harm, it is noted at section R 2.2 that there are concerns in relation to children that social services should be contacted, and that in summarising the risks that have been identified, both current and future, the authors report writes at R10:

R10.1

Who is at risk

1. Public - women and future partners with whom he gets into a relationship with.
2. Children - within a context of a relationship and observing/being present whilst his sexual and violent behaviours are being committed.

R10.2

What is the nature of the risk

1. sexual assault, rape - domestic violence - controlling behaviour/physical violence
2. witnessing domestic violence

R10.3

When is the risk likely to be greatest

[AA's] offence demonstrates negative attitudes to women, entitlement to sex, and has taken no responsibility for his offending behaviour. [AA] is currently in custody and I understand his current relationship is over. Therefore he has no access to women or children, therefore risk at this time is not imminent.

R10.4

What circumstances are likely to increase risk

[AA] feeling sexually frustrated, having relationship problems, feeling an entitlement to sex. [AA] being in a relationship where there are children and having access to vulnerable females.

R10.5

What factors are likely to reduce the risk

sex offender treatment program
victim awareness programme

on release

SOR registration
licence conditions
suitable accommodation
one to one work with offender manager - risk reduction
making use of his time constructively.

18. At section R10.6 the author of the report sets out a summary of the findings in relation to the assessment in relation to risk in the community and in custody in the following terms:

RISK
Risk in Community
Risk in Custody
Children
Medium
Low
Public
High
Low
Known adult
High
Low
Staff
Low
Low
Prisoners

Low

19. The above findings are based upon the following summary:

The nature of the offence, the alleged offences where no further action was taken, his attitude to women and his continued denial of the offences would indicate he continues to pose a high risk to the public and known adult.

[AA] is considered a medium risk to children on the basis that [AA's] last relationship was with [KH]. [H] has two children [IK] and [MK]. [AA] is the father of [M]. Children's services were involved in this case due to his offence. Prior to custody [AA] was arrested for an alleged sexual offence against [H] including rape, however as the victim withdrew her statement, no further action was taken. [AA] indicated that the relationship is now over and he has no contact with [H] or the children.

For this reason, [AA] is considered a risk to children as they were present in the property when this alleged rape occurred despite it not leading to a conviction.

20. Although accepting Miss Rutherford's submission that AA has only been convicted for one offence it is also noted at R.6, when considering previous behaviour, that two other assaults are recorded in the following terms:

Sexual assault of a female 16 years - 09/04/11. The victim was a 16 female in a children's home. Victim reported that she had been in a relationship with the suspect for three weeks, during this time he told the victim how to dress and tried to force himself onto her, climbing on top of her and saying "you better give me sex". He pulled up her dress and touched her breast under clothing before biting her on the right for arm. The victim withdrew her support for the prosecution.

Sexual assault of a female aged 13 to 15 years - 11/07/11. Female aged 15 was walking home from the local supermarket when approached by [AA]. He asked to kiss the victim holding victim down and placing hand under clothing and touching breast, he then placed hand inside underwear and touched hip before pulling handout and placing over clothing between legs. Lack of ID and forensic evidence.

21. The Judge makes little reference to the full extent of the content of the OASys report and in particular makes no reference or analysis of what work has been undertaken by the appellant to deal with the underlying causes of his conduct that lead to the commission of the offence for which he was convicted. The fact the appellant may have been younger and that he had not offended since 2011 does not mean that the underlying issues in relation to the appellant's view of women, and whether they are persons under his control within the specific circumstances of a relationship such that he can control them and use them for purposes of sexual gratification, has been adequately addressed.
22. I find that the Judge has made a material error of law in failing to give adequate reasons for why the section 72 presumption is rebutted in this case.
23. It was agreed by both advocates that it was possible for this Tribunal to remake the decision on the basis that no oral evidence was required, as the question was whether on the basis of the material before the First-tier Judge the section 72 presumption had been rebutted.
24. It is not disputed that the appellant has committed a particularly serious crime for which he has been sentenced. The issue is whether he constitutes a danger to the community of the United Kingdom. For the above reasons I find that this element of the appeal has not been adequately made out in that there is no evidence that the appellant has undertaken any rehabilitation work, sexual offender work, or work with qualified professionals to deal with his distorted view of women within the context of a relationship, or in society, such as to enable it to be found that he has the rebutted the presumption that he poses a real risk to the community in the future.
25. The Tribunal therefore finds that the section 72 certificate shall stand, the effect of which is that the appellant is excluded from the protection of the Refugee Convention.
26. In relation to the claim for humanitarian protection, Paragraph 339D of the Immigration Rules states:

"A person is excluded from a grant of humanitarian protection under paragraph 339C (iv) where the Secretary of State is satisfied that:

(i) there are serious reasons for considering that he has committed a crime against peace, a war crime, a crime against humanity, or any other serious crime or instigated or otherwise participated in such crimes;
(ii) there are serious reasons for considering that he is guilty of acts contrary to the purposes and principles of the United Nations or has committed, prepared or instigated such acts encouraged or induced others to commit, prepare or instigate instigated such acts;
(iii) there are serious reasons for considering that he constitutes a danger to the community or to the security of the United Kingdom; and
(iv) prior to his admission to the United Kingdom the person committed a crime outside the scope of (i) and (ii) that would be punishable by imprisonment were it committed in the United Kingdom and the person left his country of origin solely in order to avoid sanctions resulting from the crime".
27. In LP (St Lucia) v Secretary of State for the Home Department [2010] EWCA Civ 493, the Court of Appeal found that the Judge had been under a misapprehension that whether a serious crime had been committed was a matter that was subject to the rebuttal provisions in the Nationality, Immigration and Asylum Act 2002 in the humanitarian protection context as it was in the asylum context. The Court said that the rule in paragraph 339D(i) was without qualification. There was no doubt that the Claimant had been convicted of a serious crime and he was therefore excluded from any claim to humanitarian protection (para 26).
28. In this case AA has been convicted of a serious crime and constitutes a danger to the community and is, accordingly, excluded from any claim for humanitarian protection.
29. The appellant's appeal on Refugee Convention and Humanitarian Protection grounds is dismissed. As the article 2 and 3 findings and not challenged by the Secretary of State the error found is not material to the decision to allow the appeal on human rights grounds.

Decision

30. The Judge erred in the assessment of the appeals in relation to the asylum and humanitarian protection claims which are set aside and dismissed. There is no material error of law in the First-tier Tribunal Judge's decision in relation to articles 2 and 3 ECHR. The determination shall stand, but in relation to the human rights ground only.

Anonymity.

31. The First-tier Tribunal made an order pursuant to rule 45(4)(i) of the Asylum and Immigration Tribunal (Procedure) Rules 2005.

I make such an order pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to protect the identity of the children referred to in the evidence.

Signed??????????????????.
Upper Tribunal Judge Hanson

Dated the 15th February 2017