Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-004089

First-tier Tribunal No: RP/50063/2023
LR/00002/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 17 March 2025

Before

THE HON. MR JUSTICE BOURNE
UPPER TRIBUNAL JUDGE LOUGHRAN

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

A1
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Tabori, Counsel instructed by the Government Legal Department
For the Respondent: Mr Bandegani, Counsel instructed by Fountain Solicitors

Heard at Field House on 11 February 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the Respondent is granted anonymity.
The Respondent will be referred to in these proceedings as A1.
No-one shall publish or reveal any information, including the name or address of the Respondent, likely to lead members of the public to identify the Respondent. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction
1. The Secretary of State for the Home Department (“SSHD”) appeals with the permission of the Upper Tribunal against the decision of a panel of the First-tier Tribunal (“the panel”) dated 9 July 2024, in which the panel allowed A1’s appeal against the SSHD’s decision dated 25 January 2023 to revoke his refugee status.
Anonymity
2. We maintain the anonymity order that was granted by the First-tier Tribunal. No party requested that the order be set aside. The parties agree that A1 is a refugee. The importance of facilitating the discharge of the obligations of the United Kingdom under the Refugee Convention outweighs the principle of open justice in this case.
Background
3. A1 is a citizen of Syria, born on 20 March 1982. He arrived in the UK on 12 February 2014 and claimed asylum. On 22 May 2014 he was granted refugee status. A1’s wife and three children joined him in the UK on a family reunion visa in October 2014.
4. On 22 September 2017, at Manchester Crown Court, A1 was convicted of distributing/circulating a terrorist publication and publishing a statement intending to/recklessly encouraging terrorism. On the same day, he was sentenced to 2 years' imprisonment for each offence, to be served concurrently.
5. On 12 October 2021, the SSHD served A1 with a notification of intention to revoke his refugee status. He was invited to seek to rebut the presumption under section 72 of the Nationality, Immigration and Asylum Act 2002 (“NIAA 2002”) that he had been convicted of a particularly serious crime and constituted a danger to the community. On 15 November 2021, A1 sent representations in response to the SSHD’s revocation notice.
6. In a letter dated 15 November 2021, the United Nations High Commissioner for Refugees (‘UNHCR’) was informed of the intention to revoke A1’s refugee status. The UNHCR responded in a letter dated 20 July 2022.
7. On 25 January 2023, the SSHD made a decision to revoke A1’s refugee status. The SSHD was satisfied that subsequent to obtaining refugee status A1’s conduct has been so serious that it warrants the revocation of his refugee status and certified that both presumptions in section 72 NIAA 2002 applied to A1.
The appeal to the First-tier Tribunal
8. A1 appealed against the decision to revoke his refugee status under section 82(1)(c) of the NIAA 2002.
9. The appeal came before the panel on 26 June 2024. A1 was represented by Mr Bandegani and the SSHD was represented by Mr Philips, a Home Office Presenting Officer. A1 gave evidence. The panel referred to A1 as “the appellant” as he was before them.
10. The panel recorded in the determination at [6] that the parties agreed that the issues in dispute were:
(a) Has the appellant rebutted the s72 presumption that he has been convicted of a particularly serious crime?
(b) Has the appellant rebutted the s72 presumption that he constitutes a danger to the community of the UK?
11. The panel noted that no stage 2 deportation decision had been made and that Mr Philips confirmed to them that deportation action was not being pursued. As no other human rights decision had been made the panel correctly identified that Article 8 ECHR was outside the scope of the appeal.
12. The panel correctly identified the legal framework they were required to apply at [8]:
“The immigration rules in force at the date of the respondent’s decision provide at paragraph 338A that ‘A person’s grant of refugee status under paragraph 334 must be revoked if any of paragraphs…339AC apply’. Paragraph 339AC(ii) of the rules which is relied on by the respondent provides that ‘This paragraph applies where the Secretary of State is satisfied that: Article 33(2) of the Refugee Convention applies in that:…(ii) having been convicted by a final judgment of a particularly serious crime, the person constitutes a danger to the community of the United Kingdom (see section 72 of the Nationality Immigration and Asylum Act 2002)’. The appellant’s convictions and sentence were before 28 June 2022 and therefore the amendments to s72 made by the Nationality and Borders Act 2022 do not apply to the appellant. In the refusal letter, the respondent has, pursuant to s72(9), certified that the presumptions apply. Under s72(10) therefore we must begin our substantive deliberation on the appeal by considering the certificate, although this is academic on this appeal as the rebuttal of the presumptions is the only matter in issue. Under s72(10), if in agreement that the presumptions apply we must dismiss the appeal. As the respondent accepts that the appellant is a refugee, it follows that if we find that either presumption is rebutted, the appeal falls to be allowed.”
13. In their consideration of whether A1 had rebutted the presumption that he has been convicted of a particularly serious crime, the panel considered the judge’s sentencing remarks at [13]-[17]. The panel considered the details and aggravating features of the offences as detailed in the sentencing remarks at [14]. The panel also considered the mitigating features cited in the sentencing remarks, finding at [15] that they were more relevant to their consideration of the second presumption because they went to A1’s character.
14. Having found that A1 had not rebutted the presumption that he has been convicted of a particularly serious crime at [9]-[18] the panel went on to conclude that the appellant had rebutted the presumption that he constitutes a danger to the community of the UK at [19].
15. The panel considered the following evidence:
a. The panel attached weight to the answers provided by PC M Downey on 18 September 2023 in response to questions posed by A1’s representatives. At [20]-[21] the panel noted in particular:

“PC Downey is a member of the Counter terrorism Police Northwest and when he answered the questions, was the nominal manager for the appellant who he had known since he took on the role in April 2022. His role entailed ensuring that the appellant complied with his part IV Counter Terrorism Act 2008 obligations and monitoring any changes which may affect his mind set and trigger any thoughts of re-offending. PC Downey had had 25 contacts with the appellant taking the form of phone calls, emails, home visits and appointments at his local police station. PC Downey’s opinion was ‘[the appellant] since his release from prison has been fully compliant with the Counter terrorism policing officers. My impression of [the appellant] is that he is hard working, family orientated and contrite. I find no signs of false compliance in my dealings of [the appellant].’ PC Downey says that there have been no further incidents or crimes following the appellant's release, that he was working and that he was low risk of re-offending and of being a danger to the community in the UK. PC Downey also noted that the appellant’s home was always clean, tidy and homely when he visited. PC Downey confirmed that he had met the appellant’s wife and children.”

b. The panel attached weight to the report by a forensic psychologist at [22]-[23], noting that the only issue the SSHD took with the report was that the interview the forensic psychologist conducted with A1 had been undertaken by video. The panel considered that this had been addressed in the report and found the report to be “well structured”, consistent with the evidence of PC Downey and noted that there had been no challenge to the expertise of the forensic psychologist to answer the questions that she was asked. The panel considered that the forensic psychologist’s conclusions were consistent with a finding that the second presumption had been rebutted.

c. The panel attached weight to the Extremism Risk Report, prepared by the National Probation Service at [24]. The panel considered that it is “detailed and includes an extensive examination of the issues.” The panel noted that the report was undertaken when A1 was still in custody and took into account the passage of time since then. The panel considered that although there was “a reference to concern regarding the level of the appellant’s disclosure…’the conclusion in the second of those paragraphs…’is supportive that the appellant has rebutted the second presumption.”

d. Having noted the recommendation in the Extremism Risk report for further psychological intervention, the panel considered that A1 had seen an NHS counsellor who had provided a detailed letter at [25]. The panel attached weight to the letter because the counsellor had provided A1 with 21 therapy sessions. The panel noted the counsellor’s evidence that A1 was experiencing a number of symptoms which were suggestive of post-traumatic stress disorder.

e. The panel attached weight to A1’s evidence at [26]. They noted that A1 had provided a very detailed witness statement and that it was consistent with other evidence and that A1 has provided a consistent narrative to third parties about what happened in Syria and the effect that this had on him in terms of it leading to his committing the offences. The panel also considered that his evidence is “consistent with the evidence from other sources regarding his wife, children and employment history.” They considered that his oral evidence reflected his written evidence.

f. The panel attached weight to the letters of support at [27], noting that they had not been challenged by the SSHD.
16. The panel considered Mr Philips’ submissions on behalf of the SSHD at [28] that A1’s integrative links in the UK had been broken by his period of imprisonment, but noted that Mr Philips had not addressed how that was relevant in his appeal. The panel considered that although it was a not a matter for resolution on the appeal they did not accept A1’s integrative links were broken by his time in prison. They considered that although it could go to the rebuttal of the second presumption they found nothing in the submission that impacted on the A1’s rebuttal of the second presumption.
17. The panel did not find any merit in Mr Philips’ submission that the deterrent aspect of removing protection status in the UK would send an important message at [29] because they considered that “the position is that the issue of deterrent effect is bound up in the presumptions and their rebuttal and any additional consideration of the deterrent effect would be an error.”
18. The panel considered Mr Philips’ submission that A1’s mental health supported the SSHD’s position that A1 had not rebutted the second presumption at [30], but concluded at [31] that “it does not withstand scrutiny when matters are considered holistically.”
19. The panel noted at [32] that the evidence presented a consistent picture that A1 is a committed family man and is consistent that A1 had complied fully with his obligations following release from custody.
20. The panel confirmed at [34] that they had attached weight to the evidence outlined above at [15(a)-(f)]. They considered that evidence was “consistent in supporting a conclusion that the appellant is at low risk of re-offending” and noted in particular that A1 had been “consistent and emphatic that he did not realise what he was doing was a crime and he would not have done what he did if he had realised that.” The panel found A1’s evidence that he did not want to be convicted of a similar crime in the future was “consistent with his actions and the evidence” to which they had attached weight.
21. The panel found at [35] that it was significant that although there were ongoing concerns about A1’s mental health he had not re-offended and maintained a successful family life with his wife and four children and the panel noted that he had been able to set up and run his own business.
22. The panel recorded at [36] that they had explained why they found a high level of consistency in the evidence from PC Downey, the report by a forensic psychologist and the Extremism Risk Report, and why they considered that evidence supported a conclusion that A1 has rebutted the second presumption. They also noted that they had explained why A1’s evidence, the evidence of his counsellor and letters of support also supported that conclusion. The panel concluded that when they considered the evidence in the round, they found that A1 has shown on the balance of probabilities that he has rebutted the presumption that he constitutes a danger to the community of the UK.
The appeal to the Upper Tribunal
23. The SSHD applied for permission to appeal to the Upper Tribunal. The First-tier Tribunal refused permission on 21 August 2024. However, permission was granted by the Upper Tribunal on 17 September 2024.
24. The SSHD’s grounds can be summarised as follows:
a. Ground 1: Making perverse or irrational findings on a matter or matters that were material to the outcome and making a material misdirection of law on any material matter.
When assessing whether A1 has rebutted the presumption that he constitutes a danger to the community of the UK, the panel have given “a one-sided, exclusively positive view on evidence of risk.” It is arguably unclear how the panel reached the conclusion that A1 did not constitute a danger to the community.

b. Ground 2: Failing to give adequate reasons for findings on material matters and
failing to take into account and/or resolve key conflicts of fact or opinion on
material matters.
When assessing whether A1 has rebutted the presumption that he constitutes a danger to the community of the UK, the panel materially failed to take into account the wider implications of A1’s offences as raised in the sentencing remarks.
The decision is unclear and absent of adequate reasoning as to why the findings that A1 is “family orientated” and a “committed family man” is given considerable weight in favour of A1 given the fact that his family were present in the UK and living with A1 at the time the offences were committed.
25. The SSHD originally relied on a third ground that the panel materially erred by including Article 8 ECHR considerations i.e. that A1 has maintained a successful family life with his wife and four children. However, this ground was withdrawn prior to the hearing before us.
26. Prior to the hearing A1 and the SSHD both provided replies under 24 rule and rule 25 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (“Upper Tribunal Procedure Rules”) respectively and skeleton arguments.
27. The SSHD applied under rule 15(2A) of the Upper Tribunal Procedure Rules for permission to rely on an OASys Assessment dated 24 January 2018 that had not been produced before the First-tier Tribunal.
The Hearing
28. At the hearing, Mr Tabori represented the SSHD and Mr Bandegani represented A1. Mr Tabori correctly accepted on behalf of the SSHD that the amendments made to section 72 NIAA by the Nationality and Borders Act 2022 did not apply to A1 because his convictions and sentence were before 28 June 2022.
29. We heard detailed submissions from both Mr Tabori and Mr Bandegani, including their submissions on the SSHD’s application to rely on the OASys Assessment.
30. We informed the representatives that the OASys Assessment was not relevant to our determination of whether the panel materially erred in law. The OASys Assessment was not before the panel when they made their decision and it was not before the decision maker who made the decision under appeal revoking A1’s refugee status. We note that it is not an error of law for the panel to have had no regard to evidence which was not before them. In any event, we are not persuaded that the well-established principles in Ladd v Marshall [1954] 1 W.L.R. 1489 are met. The Home Office Special Cases Unit had sight of the OASys Assessment in 2020 and we were not provided with any explanation why, if the SSHD considered that it was relevant, it was not provided to the decision making team or the First-tier Tribunal. We are therefore not satisfied that the evidence could not have been obtained without reasonable diligence for use at the hearing in the First-tier Tribunal or that there are exceptional circumstances justifying a relaxation of the principles.
31. We reserved our decision in respect of whether the panel made a material error of law and, having fully taken into account all the written pleadings and the submissions made at the hearing, we now give that decision with our reasons.

Discussion
Whether the panel made a material error of law
32. We have reminded ourselves of the narrow circumstances in which an appellate Tribunal may interfere with a finding of fact. In Volpi & Anor v Volpi [2022] EWCA Civ at [2]-[5] Lord Justice Lewison, with whom Lord Justices Males and Snowden agreed, emphasised that the Upper Tribunal may interfere with findings of fact and credibility only where such a finding is ‘plainly wrong’ or ‘rationally insupportable’. The First-tier Tribunal is recognised as a specialist fact-finding Tribunal and the Upper Tribunal is required to exercise judicial restraint in its oversight of the First-tier Judge’s reasoning: see Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201 at [26] in the judgment of Lord Justice Green, with whom Lord Justices Lewison and Andrews agreed.
33. The assessment of whether A1 has rebutted the presumption that he is a danger to the community of the UK is a highly fact sensitive task. The findings made by the panel are neither irrational nor plainly wrong.
34. We are not persuaded that the panel took a “one sided” or “exclusively positive view on the evidence on risk or that the panel failed to consider relevant evidence. We note that the panel recorded at [4]-[5] that they had considered the oral and written evidence as well as the submissions and that they had considered the evidence in the round before making findings of fact and reaching conclusions. The panel is not required to cite every aspect of every piece of evidence before them.
35. As outlined above at [15(a)-(f)] the panel addressed the evidence before them, explaining why they attached weight to it. It is clear that they considered that the majority of that evidence supported the conclusion that A1 had rebutted the presumption that he was a danger to the community of the UK.
36. We note that the panel’s consideration of the sentencing remarks appears under the heading “Has the appellant rebutted the s72 presumption that he has been convicted of a particularly serious crime.” However, we are not persuaded this indicates that the panel excluded it from its consideration of whether the second presumption was rebutted. The decision must be read as a whole.
37. Indeed, the panel said at [15] that the mitigating features cited in the sentencing remarks were more relevant to the second presumption. The panel did not repeat their consideration of those mitigating features in their consideration of the second presumption but that does not mean that they were not relevant at that point. They plainly were, especially the words “you are not … of a mindset … to encourage directly an act or acts of terrorism within the United Kingdom” which the panel quoted at [15]. The panel clearly had in mind the sentencing remarks as a whole. We note in any event that the sentencing remarks are dated 22 September 2017 and accordingly cannot be determinative of whether A1 was a danger to the community at the date of the hearing before the panel. We are satisfied that the panel considered all the relevant evidence.
38. The reasons given by the panel for coming to their conclusion are adequate, clear and appropriately concise and focus upon the issue on which the outcome of the case turns, i.e. whether A1 has rebutted the presumption that he is a danger to the community of the UK. We are satisfied that a reader of the decision could understand why the panel came to their conclusion and that conclusion was open to the panel on the evidence before them.
39. For these reasons we do not find the SSHD’s grounds to be made out and we conclude that the panel’s decision should stand. We accordingly uphold the panel’s decision.
Notice of Decision
40. The SSHD’s appeal is dismissed. The making of the decision of the First-tier Tribunal did not involve the making of an error on a point of law.
41. The First-tier Tribunal decision allowing A1’s appeal stands.

G. Loughran
Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 March 2025