Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005955

First-tier Tribunal No: PA/00665/2023
PA/52743/2020

THE IMMIGRATION ACTS

Decision & Reasons Issued:

5th June 2025
Before

UPPER TRIBUNAL JUDGE LODATO
DEPUTY UPPER TRIBUNAL JUDGE SAINI

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

CC
(ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Ms Masood, counsel instructed by the Government Legal Department
For the Respondent: Ms Capel, counsel instructed by Duncan Lewis solicitors

Heard at Field House on 8 May 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondent is granted anonymity.

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. We have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal. We invited the parties to make submissions as to whether such an order could be justified in circumstances where a recent conviction in the Crown Court for serious drugs offences was recorded at a public hearing without an anonymity order.
2. Ms Masood adopted a neutral position on the point. Ms Capel argued that her lay client’s personal circumstances weighed heavily in favour of his personal details remaining private. Not only was he the beneficiary of a reasonable grounds decision in which he was considered to be a victim of trafficking, another conviction which was to feature heavily in the appeal, related to a sexual offence committed when he was a child. When all of these factors were taken together with the underlying claim involving international protection issues in that the appellant claims to fear persecution or serious harm on return to Bangladesh, there was said to be a powerful case for anonymity to be ordered.
3. Notwithstanding that the criminal proceedings for the recent drugs offending were conducted without any restriction on the rights of the public to know of the respondent’s identity and mindful of the fundamental principle of open justice, we are satisfied that an anonymity order is justified on the facts. It is impossible to fully canvass the issues to be decided in this appeal without addressing the appellant’s sexual offence committed as a youth. This would ordinarily attract anonymity in the criminal courts. In combination with the reasonable grounds trafficking decision and the protection issues at stake, we agree that these factors outweigh the right of the public to know of his identity.
4. The Secretary of State for the Home Department appeals with permission against the decision, dated 22 August 2024, of a judge of the First-tier Tribunal (‘the judge’) to allow the appeal on international protection and human rights grounds.
5. To avoid confusion, and for the remainder of this decision, we will refer to the appellant in these appellate proceedings, the Secretary of State for the Home Department, as the respondent and the respondent in the Upper Tribunal, CC, as the appellant, as they were before the First-tier Tribunal.
Background
6. The broad procedural background and immigration history are not in dispute between the parties. In summary, the appellant seeks to resist deportation to Bangladesh on the basis that he no longer poses a sufficiently serious risk to the community of the UK following his convictions for a violent sexual assault on a stranger when he was a 17-year-old child and a recent conviction for conspiring to supply significant quantities of class A drugs. He was also found to have been responsible for a series of sexual attacks on strangers in the context of a previous unsuccessful appeal, in 2017, to resist deportation. If able to rebut the statutory presumption that he continues to constitute a danger to the community of the UK, he argued that he should benefit from international protection under the Refugee Convention or, in the alternative, under humanitarian protection principles or Article 3 of the ECHR. These claims were founded on a range of factors including the conditions he would be likely to face on return as someone with serious mental health conditions and the risk of being trafficked in the future, having already been a victim of trafficking in the past.
Appeal to the First-tier Tribunal
7. The appellant appealed against the refusal of his claim. The appeal was heard by the judge on 8 July 2024 before allowing the appeal in a decision promulgated on 22 August 2024. For the purposes of the present proceedings, the following key matters emerge from the decision:
• In summarising the broad procedural background, the judge noted that the appellant “had come to the attention of the police “on several occasions” in relation to other alleged sex offences” in addition to his conviction for sexual assault for which he was sentenced to an 18-month Detention and Training Order. [2]
• The judge explained the delay between the appeal being lodged, in December 2020, and being heard some 3 and a half years later as caused by “adjacent litigation”. [7]
• In the context of refusing the respondent’s application to adjourn the hearing, the judge referred to large body of evidence which was already available in the shape of “[…] 11 medical reports, addendum reports, or medical letters before me, including one from Dr Mackay, as well as extensive NHS medical notes about the Appellant covering a period of years, and medical notes from his time in immigration detention”. [12]
• It was noted that the appellant had decided against giving oral evidence. The parties disputed whether this should result in the judge drawing adverse inferences. Passages from the expert report of Dr Gappathie, dated 17 June 2024, were copied in which the opinion was given that the appellant would be unfit to give evidence. This was because of the serious mental health conditions which had been diagnosed, his propensity to hallucinate, the likelihood that his answers to questions would be incoherent and that the process of giving oral evidence would cause trauma and harm. It was noted that this expert report was the most recent available evidence on the subject and was effectively unchallenged. The judge relied on this evidence to indicate that she would not draw adverse inferences from his absence from the witness box. [13]-[16]
• The judge listed the material she had available. This included the decision of the Upper Tribunal in CE (Cameroon) PA/01112/2020 [the official transcript of this decision does not include a conventional Upper Tribunal reference number] and the remarks of the judge who sentenced the appellant in the Crown Court on 19 June 2023. [18]
• The judge identified the issues in dispute between the parties. The first issue was “has the Appellant rebutted the presumption he is a danger to the community, as set out in section 72(6) of the Nationality, Immigration and Asylum Act 2002?”. The remaining issues included whether the appellant met the substantive legal criteria to qualify for international protection under the Refugee Convention or humanitarian protection principles and whether he would be exposed to conditions which would breach Article 3 of the ECHR. Article 8 considerations within the context of s.117C of the 2002 Act were also identified as issues. [21]
• In addressing the first issue of whether the appellant had rebutted the statutory presumption that he was a danger to the community, the judge began her analysis by addressing the sexual offences, at [22]:
The Appellant was sentenced, as a child, to an 18 month Detention and Training Order in a Secure Training Unit, for sexual assault. The circumstances of the offence are disturbing, and there is no doubt the Appellant caused serious harm to his victim at the time of the offence, and was at that point a danger to the community. However the offence was over nine years ago now, and the question is whether he is currently a danger to the community.
• Upon directing herself to the principles decided in Devaseelan (Second Appeals - ECHR - Extra-Territorial Effect) Sri Lanka * [2002] UKIAT 00702, the judge stated that she would treat the 2017 previous determination as her starting point. The previous determination was summarised and assessed in the following way, at [24]-[25]:
The judge noted that when the Appellant was asked about the offence he said the victim had agreed to the sexual contact, he had not done anything wrong, and he had pleaded not guilty as he thought she had agreed to the sexual contact. The judge noted a “repeated theme" in the evidence, of the Appellant failing to recognise his guilt, and not having an awareness of the seriousness of his actions or the consequences of his behaviour for the victim. The judge found the Appellant to be insincere in his expressions of remorse, and at very high risk of reoffending. The judge noted the Respondent relied, in addition to the index offence, on evidence from the Metropolitan Police to the effect that the Appellant had come to their attention on several occasions in relation to other sexual offences; and found that the although the Respondent had not proved the Appellant guilty of those “non-conviction offences", the Respondent had shown that the Appellant was sexual predator who was likely to re-offend in the same or similar manner to the index offence if at liberty. The judge found that even without the non-conviction offences, the Appellant presented a high risk of harm to the public.
There is evidence before me, which was not before the previous judge, and could not have been before the previous judge because it did not exist in 2017 and because it is evidence of developments since 2017. I therefore can and do take it into account
• The competing evidence and arguments of the parties going to the question of risk were set out at [26]-[28]. In summarising the appellant’s position, particular emphasis was given to the passage of time since the sexual offending, the impact of the appellant’s experience of trafficking (and the safeguards against any recurrence) and the expert evidence of Dr Galappathie in assessing the appellant to be at a low risk of reoffending. Dr Galappathie’s evidence on this point was summarised in the following terms:
The Appellant relies also on the reports of Dr Galappathie, who has particularly relevant expertise including through his management of high risk sexual offenders, and leadership of multi-disciplinary teams, including with psychologists and social workers, which make important decisions about leave and discharge planning for such offenders. Dr Galappathie’s view is that having considered the Appellant’s long prison sentence, the work he has completed on sexual offending, his development of victim awareness and most signiﬁcantly his avoidance any further sexual offending since being released to the community, the Appellant is at low risk of reoffending, does not present as a sexual predator, and can safely be managed in the community in the UK. Dr Galappathie's addendum report conﬁrms this is his view whether or not the Appellant has committed the non-conviction offences.
• The respondent’s overall contention was set out that the appellant’s offending had escalated from the already serious sexual offences committed when he was a youth. The judge’s attention was drawn to passages of CE (Cameroon) in which a risk assessment of Dr Galappathie was heavily criticised and approval was given for the decision to be considered by judges in the First-tier Tribunal while observing that it was not to be ruled out that the expert might provide cogent and safe expert evidence in future.
• Given the importance of this issue in the context of the error of law proceedings, we set out in full the conclusions reached by the judge about Dr Galappathie’s expert evidence in the context of assessing whether the appellant had rebutted the statutory presumption which applied:
Dealing ﬁrst with the correct weight to place on Dr Galappathie’s evidence. I am grateful to Ms Capel for her submissions highlighting Dr Galappathie’s report of 10 October 2023 in which he explicitly engaged with that criticism and highlighted subsequent praise for his evidence, as follows:
16. ...I am aware of the criticisms in CE (Cameroon) [2023] UKAITUR PA011122020, [2023] UKAITUR PA11 122020 in relation to a report that I initially wrote in 2020, and in particular that I failed to expressly or implicitly engage with medical opinion provided by the prison healthcare team and GP records, and uncritically accepted information provided by the appellant even though on the face of the medical records it was inconsistent. I acknowledge those criticisms.
17. I have also received positive feedback before and alter the CE judgment, this includes the more recent judgment within [2023] UKAITUR UI2022001859 (1 September 2023). Within this judgment Upper Tribunal Judge Perkins comments:
“. . .The Judge [FTT Judge] was particularly impressed by paragraph 97 of Dr Galappathie's evidence and set it out in his Decision and Reasons at paragraph 27. I set it out too...”l have read and considered the case of HA (expert evidence, mental health) Sn Lanka [2022] UKUT 111 (IAC) (25 March 2022).
18. I am aware of the need to engage with [the Appellant's] health records, and to provide reasons for any deviation from the opinions within his health records and especially his treating GP. I have approached [the Appellant's] case with an appropriate degree of scepticism as I am aware that he has an incentive to self-present in a way that portrays him to be unwell as he wishes to have reasons to be released from detention and to remain in the UK and avoid being returned to Bangladesh. In reaching my opinion in his case, I have conscientiously engaged with all medical evidence, including anything that would undermine my conclusions, and where the subjects account is inconsistent with any external evidence I have given due weight to that inconsistency. In my opinion, as outlined in detail in the opinion section of this report, the information within his health records supports the conclusions on diagnosis of mental disorder that I have made. I have outlined the reasons why I have diagnosed [the Appellant] with mental health problems. In reaching this conclusion, I have considered the principles in MN & IXU [2020] EWCA Civ 1746 at §§110-1 13 and JL (Medical Reports-credibility) China [2013] UKUT 145 (IAC) and that a report that relies on the subjects account will be given less weight.
I am satisﬁed that Dr Galappathie has considered the criticism in CE (Cameroon) and taken effective steps to ensure the same is not warranted in this appeal. I am satisﬁed also that he is an appropriately qualiﬁed expert, who has understood his duties to the Tribunal in this appeal and has properly assessed and reported in compliance with those duties. I have placed weight on Dr Galappathie's report accordingly, and not placed any lower weight on it as a result of CE(Cameroon.)
I accept Dr Galappathie has particular expertise in assessing reoffending risks in sex offenders, and has comprehensively assessed the Appellant over a period of years, resulting in reports/addendum reports/letters from him dated 7 January 2022, 20 January 2022, 9 October 2023, 18 December 2023 and 17 June 2024. Dr Galappathie’s view is that the Appellant is at low risk of re-offending whether or not he committed the non-conviction offences. However, a person can be at low risk of reoffending without that necessarily establishing that they are not a danger to the community of the UK. This warrants careful consideration here, particularly in light of Dr Galappathie’s view that the Appellant’s own history of sexual abuse would have made him vulnerable to committing a sexual offence himself due to unresolved issues related to his own masculinity and sexuality.
The weight of medical evidence is that the Appellant’s account of sexual abuse as a child is clinically plausible. The Respondent’s own guidance makes clear that emotional trauma and feelings of shame may be factors explanatory of late disclosure of relevant evidence. I am satisﬁed that the medical evidence in combination with the Appellant's own evidence as to the disgust he and his family would feel about such matters, provides a credible explanation for his late disclosure. I am therefore satisﬁed the sexual abuse took place. Given it is as much part of his history now as it was at the time he committed the index offence, and that Dr Galappathie’s view is that the Appellant’s sex offending behaviour is “likely to be a reﬂection of difficulty coping with his own past history of being sexually abused and difficulty with sexual boundaries as a result of being sexually abused himself,” this is a matter of real concern when considering the risks he poses in the UK.
Against that, I accept the Appellant served a signiﬁcant custodial sentence for the index offence, and has undertaken rehabilitative work to address his risk of reoffending. I accept his remorse is genuine. It is compellingly expressed in his most recent witness statement, where he sets out that as he was a victim of the same crime, he understands the impact of his actions and that they would have affected the victim in long-lasting ways. The Appellant has no further convictions for sex offences in the nine years since the index offence, and this is consistent with Dr Galappathie’s view that the Appellant is at low risk of reoffending. It is also consistent with Dr Galappathie's observations that the Appellant does not present as an individual with distorted sexual attitudes, does not minimise his past sexual offence, and does not hold attitudes that condone sexual offending. Dr Galappathie gives the view that the Appellant’s sexual offence appears to be an offence which occurred, when he was a child, due to a number of speciﬁc factors present at the time of the index offence. Dr Galappathie points to the Appellant’s young age of 17 years at the time of his conviction, and gives the view that the offence suggests he was immature and vulnerable, rather than that he has a signiﬁcant underlying risk of sexual offending. He gives the view that this offence was an isolated incident of sexual offending.
The Appellant is now an adult, who has received signiﬁcant punishment for the index offence, and has received signiﬁcant therapeutic input to address his previous trauma, and rehabilitative work to address his risk of reoffending. Whilst the drug related offence represents an increase in the seriousness of the Appellant's offending, I accept that this is connected to the Appellant’s trafﬁcking for the purposes of forced criminality, that he served a significant custodial sentence as a result, has since been moved from the area in which the trafﬁcking took place and is receiving specialist support the aim of which is to mitigate his vulnerability to trafﬁcking.
This is a signiﬁcantly changed picture to the one at the time of the index offence, the one at the time of the previous First-tier Tribunal decision, and the one at the time of the drug related offence. Having considered everything in the round, including the combined impact of the Appellant’s two offences, and the steps taken and changes made to address both types of offending, I am satisﬁed the Appellant has rebutted the presumption he is a danger to the community of the UK. He is therefore not excluded from international protection. The first issue in dispute is resolved in favour of the Appellant.
• Having found that the appellant had rebutted the statutory presumption against exclusion from protection, at [37], the judge turned to the underlying substantive case that he should be treated as a refugee, or that his return would breach his human rights. The three factual pillars of these claims were: 1) he had twice been kidnapped, tortured and raped as a child and that these events were motivated by political antipathy towards his father; 2) that he would suffer persecution as a result of his mental health conditions; 3) as a former victim of trafficking, he would be at risk of suffering a breach of his Article 3 or Article 4 human rights.
• In dealing with the first of the substantive issues, the judge referred to the 2017 decision as her starting point. She declined to move away from the conclusion reached in the previous decision that there was not a risk on account of his actual or imputed political opinion. [38]
• The second issue was resolved in the appellant’s favour. The judge relied on a substantial body of medical opinion evidence which post-dated the 2017 determination to find that he had a constellation of serious mental health conditions including PTSD, depression with psychotic presentation, ADHD and EUPD. The expert opinion evidence of Dr McKay, relied upon by the respondent, was rejected by preferring the groundswell of the appellant’s expert evidence. [39]-[44]
• In assessing what the appellant could expect to encounter on return to Bangladesh, the judge considered the country expert report of Dr Amundsen and noted that he “sets out that people with mental illness in Bangladesh are heavily stigmatised and discriminated against, perceived as affected by “evil inﬂuences”, and treated as social outcasts” ([45]). The judge went on to find that the appellant was a member of a particular social group before returning, at [47], to Dr Amundsen’s opinion evidence about the risk of persecution:
As to the question of whether he has a well-founded fear of persecution as a result of that membership, Dr Amundsen’s evidence is again relevant. Dr Amundsen sets out that those suffering from serious mental illness in Bangladesh are at real risk of persecution including physical abuse. neglect and treatment including being “chained up.” Dr Amundsen sets out also that the Appellant will be vulnerable to exploitation from people who know his situation: “some may want sexual favours for assisting him and he may be forced into exploitative working conditions (if able to ﬁnd work at all...There are many accounts of mentally ill people being chained up in Bangladesh, of mentally ill [people] ending up as drug addicts, subjected to prostitution, sexual exploitation and rape.. suicides are all too common.” There are also laws in Bangladesh permitting the arrest and detention of mentally ill people. The Appellant argues there is in addition a lack of adequate treatment for his mental health in Bangladesh, a difﬁculty compounded by the fact he would be unable to seek assistance due to the likely deterioration in his mental health.
• The above arguments were balanced against the respondent’s submissions, which drew heavily on the CPIN: medical treatment and healthcare, Bangladesh, July 2022, that the appellant was not at risk of persecution. [48]-[50]
• The judge reached the following conclusions on this issue at [51]:
I am satisﬁed that the Appellant is highly likely not to be able to access appropriate mental health care in Bangladesh, due to a combination of his complicated multiplicity of diagnoses, there being so few appropriate facilities capable of treating those, his likely deterioration in mental health, which is likely to impair his functioning, his limited ﬁnancial means, his lack of family or any other support there to assist him to access appropriate health care, and the stigma around poor mental health in Bangladesh. I am satisﬁed therefore that the Appellant has a well-founded fear of persecution as a member of a particular social group both because of the risk of physical abuse, neglect, and the “treatment” of being held in chains, as identified by Dr Amundsen; and because of the risk of re-trafﬁcking, which the Salvation Army in the UK has assessed him to be at real risk of in the UK, and so he receives specialist support here to mitigate that risk. He would have no such support available to him in Bangladesh, and in combination with his poor mental health and the position there with receiving adequate healthcare, the lack of support and assistance for victims, particularly male victims of sexual violence, the corruption and inefﬁciency of the Bangladeshi police, (neither of which are compellingly disputed by the Respondent), and the speciﬁc risks of exploitation identiﬁed by Dr Amundsen, means the Appellant would be a profoundly vulnerable person on return to Bangladesh and thereafter. I am satisﬁed that the position would be substantively the same wherever the Appellant were in Bangladesh, with no meaningful prospect of sufﬁcient protection by the Bangladeshi authorities, so the questions of internal relocation and sufﬁciency of protection are both answered in his favour in this asylum appeal.
• Accordingly, the appeal was allowed on asylum grounds. [52]
• It was further indicated that the appeal would have been allowed on humanitarian protection grounds if the refugee convention ground had failed due to “the risks of how he would be treated as a mental health patient, and the risks of his being re-trafﬁcked”.
• The Article 3 matter was addressed in the following terms, at [54]:
Had I not allowed the appeal on asylum or humanitarian protection grounds, I would have allowed the appeal on grounds maintaining the Respondent's decision would result in a breach of Article 3 of the ECHR. I am satisﬁed to the lower standard that on return to Bangladesh the Appellant would be at risk of treatment meeting the Article 3 threshold. For the same reasons as I have identiﬁed above in the protection grounds of appeal.
Appeal to the Upper Tribunal
8. The Secretary of State applied for permission to appeal in reliance on the following grounds:
I. The judge adopted an unlawful approach to her consideration of Dr Galappathie’s expert evidence which was relied upon to find that the appellant rebutted the statutory presumption that he posed a risk to the community of the UK.
II. To the extent that the judge placed any or significant weight on the appellant’s untested written evidence, her finding that the appellant was genuinely remorseful was perverse.
III. The judge failed to have lawful regard to the 2017 previous determination before concluding that the appellant was truthful about his claimed experience of being kidnapped, tortured and raped as a child in Bangladesh.
IV. The judge failed to have lawful regard to the criminal proceedings which underpinned the appellant’s conviction for conspiring to supply class A drugs.
V. The judge unlawfully found that the appellant formed part of a particular social group for the purposes of the Refugee Convention.
VI. The judge did not provide lawfully adequate reasons to support her finding that the appellant was at risk of persecution or serious harm and the expert evidence of Dr Amundsen was not a sufficiently firm foundation for so finding.
VII. The judge did not provide reasons to explain why the appellant could qualify for humanitarian protection when there was little to suggest the infliction of harm.
VIII. The judge did not engage with the relevant legal framework before implicitly allowing the appeal on Article 3 health grounds.
9. In a decision dated 16 December 2024, First-tier Tribunal Judge Saffer granted permission for all grounds to be argued. No reasons were provided in support of the decision beyond stating that the grounds were arguable.
10. At the error of law hearing, Ms Masood confirmed that she would not be pursuing ground 5. We heard oral submissions from both parties. We wish to record, as we did at the hearing, that the oral arguments were comprehensive, marshalled a large body of material and were of great assistance. We address any submissions of significance in the discussion section below.
Discussion
11. For reasons which will become clear, we are minded to deal with particular grounds of appeal first. We will turn our minds to grounds one, four and eight before considering the remaining challenges.
Ground 1
12. Before assessing whether the judge erred in law in how she approached her task in considering whether the appellant had rebutted the presumption of exclusion which applied against him, it is important to remind ourselves of the legal source of that presumption. Section 72 of the Nationality, Immigration and Asylum Act 2002 (as amended by the Nationality and Borders Act 2022) provides as follows (where relevant):
72 Serious criminal
(1)  This section applies for the purpose of the construction and application of Article 33(2) of the Refugee Convention (exclusion from prohibition of expulsion or return).
(2)   A person is convicted by a final judgment of a particularly serious crime ... if he is—
(a)  convicted in the United Kingdom of an offence, and
(b)   sentenced to a period of imprisonment of at least 12 months.
[…]
(5A)  A person convicted by a final judgment of a particularly serious crime (whether within or outside the United Kingdom) is to be presumed to constitute a danger to the community of the United Kingdom.
(6)   A presumption under subsection (5A) that a person constitutes a danger to the community is rebuttable by that person.
[…]
(8)  Section 34(1) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (no need to consider gravity of fear or threat of persecution) applies for the purpose of considering whether a presumption under subsection (5A) has been rebutted as it applies for the purpose of considering whether Article 33(2) of the Refugee Convention applies.
(9)  Subsection (10) applies where—
(a)  a person appeals under section 82 of this Act or under section 2 of the Special Immigration Appeals Commission Act 1997 (c. 68) wholly or partly on the ground mentioned in section 84(1)(a) or (3)(a) of this Act (breach of the United Kingdom's obligations under the Refugee Convention), and
(b)   the Secretary of State issues a certificate that a presumption under subsection (5A) applies to the person (subject to rebuttal).
(10)   The ... Tribunal or Commission hearing the appeal—
(a)  must begin substantive deliberation on the appeal by considering the certificate, and
(b)   if in agreement that a presumption under subsection (5A) applies (having given the appellant an opportunity for rebuttal) must dismiss the appeal in so far as it relies on the ground specified in subsection (9)(a).
[…]
13. Ms Capel rightly drew our attention to the fact that the above presumption was triggered by the recent conviction for conspiracy to supply class A drugs, not the sexual offence which, at the time, would not have rendered the appellant a ‘serious criminal’ for the purposes of the 2002 Act. That being said, it was also recognised that once the appellant fell to be treated as a ‘serious criminal’ for the purposes of the legal scheme, the presumption of exclusion could only be rebutted upon assessment of the overall risk presented by the appellant as to whether he constituted a danger to the community of the UK. This naturally drew in the risk he might pose of committing further sexual offences and drugs offences.
14. Dr Galappathie’s risk assessment was a central evidential plank of the appellant’s case that he could rebut the presumption that he represented a danger to the community of the UK. However, a risk assessment this expert had performed in another appeal, where a presumption arose on the strength of serious sexual offending, was the subject of criticism in CE (Cameroon). This was an appeal which involved exceptionally serious criminality which resulted in a sentence of 18-years’ imprisonment for a series of rapes against his young daughter. In addition to noting serious concerns about the expert’s failure to consider the appellant’s full documented medical history before diagnosing various mental health conditions, the panel in CE (Cameroon) made the following observations (at paragraphs [182] and [201]-[207]) about the flaws in Dr Galappathie’s assessment of risk:
We observe that Dr Galappathie provided an opinion as to the appellant’s risk of reoffending in his first addendum report. This opinion was relied upon by the appellant in his unsuccessful challenge to the section 72 certificate and so was not concerned with an issue before us. However, the panel’s clear concerns as to the approach adopted by Dr Galappathie as to his assessment of risk are such that it is considered appropriate that we articulate our concerns. We observe that for the reasons set out above we have additionally found his reports in this matter to be wanting as to the assessment of the appellant’s mental health.
[…]
As for ‘thinking and behaviour and attitudes’ Dr Galappathie detailed:
‘In my opinion, it is notable that [the appellant] does not have a past history of sexual offending prior to the index offence. He has no past history of any allegations of a sexual nature against him prior to the index offences. He maintains his innocence for the index offences and that his wife coerced his daughter into making the allegations due to his extra marital relationships. In my opinion, it is not possible to fully explore his thought processes given his maintenance of innocence. He is also not able to complete sex offender courses that require him to admit the offences. However, he has served a lengthy prison sentence and other than his previous interest in extra marital relationships which raises some questions about his thoughts towards women, other than the index offences themselves, there is actually nothing to indicate distorted sexual attitudes especially towards children. He does not report any sexual interest in children and is now required to avoid contact with children. Any abnormalities within thinking and behaviour have therefore been resolved as best possible such that his risk of re-offending will remain low.’
We conclude that this is a remarkable, and concerning, conclusion. Previous offending history and the number of offences committed are a static risk factor. They are fundamental in considering an individual’s potential to reoffend in the long term. That the appellant had not been subject to previous allegations does not undermine the fact that over several years he subjected his minor daughter to rape and sexual assault. We consider the failure to adequately identify the nature of the offences for which the appellant was convicted as striking. No explanation is given as to why the serving of a long-prison sentence positively impacts upon risk. We cannot see how that is the case in this matter. The appellant is not of such an age that it positively impacts upon sexual arousal and recidivism.
We are extremely concerned as to the opinion that save for the index offence, ‘there is actually nothing to indicate distorted sexual attitudes especially towards children.’ We consider that the index offences alone establish cognitive distortion in sexual attitude towards children, the appellant having displayed specific and general beliefs and attitudes associated with the onset and maintenance of sexual offending towards a female child over several years from the age of six. We conclude that Dr Galappathie failed to have appropriate, if any, regard to what was on any rational view a highly relevant consideration.
[…]
It is well-established that it is for a court or tribunal to consider what weight should properly be placed upon evidence, and the approach to expert evidence is no different. It is a judicial decision as to whether opinion evidence can properly be considered ‘expert’. The Supreme Court in Kennedy v. Cordia (Services) LLP (Scotland) [2016] UKSC 6; [2016] 1 WLR 597, at [43]-[44], approved a section of the South Australian Supreme Court decision in R v. Bonython (1984) 38 SASR 45, from which it distilled four key considerations which govern the admissibility of expert evidence. We are satisfied that in respect of risk assessment, the opinion provided by Dr Galappathie would not have assisted any judge in its task of assessing the section 72 certificate.
The duties and responsibilities of an expert witness in civil proceedings are addressed in the oft-cited summary of Mr. Justice Cresswell in National Justice Cia Naviera SA v. Prudential Assurance Co. Ltd (The Ikarian Reefer) [1993] 2 Lloyd’s Rep 68, 81- 82. Expert evidence presented to the Tribunal should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation. An expert witness should provide independent assistance to the court by way of objective, unbiased opinion in relation to matters within his expertise.
Having considered the risk assessment filed in this matter we do not consider Dr Galappathie to have provided objective and expert evidence. Whilst he may in future provide opinion that is sufficiently reasoned and impartial to establish his objectivity and expertise, we agree that our conclusion in this matter can properly be considered by this Tribunal and the First-tier Tribunal in respect of any future risk assessment opinion he prepares.
15. The judge was plainly aware of recent adverse judicial findings in respect of Dr Galappathie’s role as an expert assessing risk. However, as accepted by Ms Capel during the error of law hearing, the judge was required to do more than simply be cognisant of these findings. The strength of the criticisms in CE (Cameroon) were such that the panel took the unusual step of permitting the use of an unreported decision by judges who were subsequently called upon to rely on expert evidence from Dr Galappathie. It necessarily follows that the judge was required to approach with some care this risk assessment which involved a forward-looking analysis of the dangers presented by a man who could be properly regarded as having shown a proclivity towards predatory sexual behaviour in the past.
16. As summarised above, the judge was satisfied that Dr Galappathie had sufficiently reflected on the criticisms in CE (Cameroon) because he had said as much in his October 2023 report. Taken at face value, and in isolation, the expert’s assertion might be taken as some recognition of his failings in CE (Cameroon). However, a closer analysis reveals defensiveness and a failure to properly consider the full breadth of the adverse judicial commentary. Firstly, the paragraph which immediately follows the supposed recognition of the criticisms in CE (Cameroon) is the citation of other judicial observations where his evidence was found to be of assistance. This resonates with an argument that there is the foundation to prefer a different view – of his expertise, impartiality and the rigour of his methodology – to that taken in CE (Cameroon). The expert proceeded to discuss how he acknowledged the need for an expert in his field of specialism to fully engage with a subject’s documented medical history. In fairness to Dr Galappathie, the October 2023 report includes a detailed summary of the appellant’s medical records. While this particular criticism in CE (Cameroon) was addressed by the expert, and was not the subject of challenge in the grounds of appeal, there was no meaningful acknowledgement of the criticism in CE (Cameroon) that the expert was required to broadly assess the evidence in the assessment of risk, not overly-rely on what may be self-serving assertions of the appellant who would have every interest in downplaying the seriousness of their offending and exaggerating any meaningful change and remorse. For the reasons explained above, in the circumstances of this appeal, the judge was required to be alert to any failings of this nature in the expert opinions of Dr Galappathie. It is to this issue that we now turn.
17. At paragraph 32 of his first report, Dr Galappathie said this about how the appellant described the sexual offence he committed when he was 17 years old:
[CC] said that he has a conviction for sexual assault. He was 17 years old when the offence occurred. [CC] said that he met a female. She allowed him to speak to her. He did not know how drunk she was. He took her to the bus stop to help her and touched her. He said that he touched her face and breasts. He said that he shouldn’t have done it and it was his mistake.
18. This is to be contrasted with the summary of the offence found in the previous determination of 2017 where the following was said at [8] and [10]:
With reference to the index offence, on 12 July 2015 the police were called by a third party (DIW2) as he had found a female who was half naked and stating that somebody had tried to rape her. When police arrived they found the victim (VIW1) sitting on the floor near Mudchute Docklands Light Railway station. She was crying and visibly shaken. Her top appeared to be ripped and she was holding her bra up with her hands.
[…]
The victim stated to the officer that the suspect had approached her nearby stating he was going to look after her as she was drunk. He said he would walk her to the bus stop. They were walking over Mudchute Park. He then pulled her to the ground, pulled her bra off and started sucking her right breast and touching her all over. She screamed and hit him in the head. He then took her bag and ran away. After a short time he returned. The victim had then grabbed her bag and run-off. At some point during this altercation the victim had called the police.
19. There are a number of features which are striking from the above summaries. Firstly, the appellant emphasised factors which may be seen as downplaying seriousness such as his ignorance of the victim being under the influence of alcohol, that she initially willingly engaged in conversation and that he initially sought to help her. The colourless description of touching her face and breasts betrays little of the physical violence which he used to commit the offence in forcing her to the ground and forcibly displacing clothing so that he could touch her exposed breasts.
20. Ms Capel properly pointed out that the appellant’s description of the offence should not be confused with the expert’s analysis of the index offence. However, it is also fair to say that the expert did not himself fill in the gaps left by the appellant’s description to expressly inform his risk assessment. This was despite having claimed to have read the 2017 previous determination in which the full nature of this offence was set out. Moreover, in this first report, there is nothing to indicate that the appellant was found, by the judge who decided the 2017 appeal, to have been responsible for two further sexual attacks on female strangers around the time of the index offence. On the contrary, the expert said this at paragraphs [98] and [104]-[105] of his report of 7 January 2022:
In terms of age: His young age at the time that he was convicted, namely 17 years highlights he was immature and vulnerable at the time of the index offence rather than indicating a significant underlying risk of sexual offending. It is notable that there was no escalating pattern of increasing sexually inappropriate behaviour or offending which further indicates that the index offence was an isolated incident of sexual offending which occurred when [CC] was a child due to a number of specific circumstances at that time. [Emphasis added]
[…]
Thinking and behaviour and attitudes: In my opinion, it is notable that [CC] does not have a history of escalating sexual offending. He has no past history of any previous sexual offences prior to the index offence. Whilst the police raised concerns about him being a sexual predator, these allegations were not found to be proven and he has demonstrated upon release that he is not a sexual predator as he has not committed further sexual offences. There have been no further allegations of a sexual nature against him. He is likely to have been easily influenced at the time of his offence given that he was only 17 years old, he had experienced significant trauma, including reports of sexual abuse and is likely to have been very vulnerable at the time that he committed the sexual offence. [CC] has a good understanding of the events that took place and expresses remorse to the fullest extent possible that would be achievable. [CC] has served a long prison sentence and has completed relevant courses related to sexual offending and has been able to put into practice what he has learned by the avoidance of sexual offences in the community.
In my opinion, upon considering the severity of offence that took place, a careful and robust approach towards his risk management is required. In my opinion, given that [CC] does not have any previous convictions for sexual offences prior to the index offence, does not have dysfunctional sexual attitudes or cognitive distortions, expresses remorse and understanding for the events that took place at the time of the index offence, has served a long prison sentence and has a number of positive factors including support from his family, a wish to avoid illicit drugs and reduce his alcohol intake and is happy to engage with his GP and Mental Health Services and take part in in further psychological therapy, in my opinion all of these factors clearly indicate [CC] can be safely managed in the community on a long term basis with appropriate interventions in place to ensure his risk of sexual offences remains low.
21. At [94]-[96] of this report, the expert found that the appellant’s sexual offending was likely to have been caused by his claimed history of being sexually abused as a child and that he did “not present as an individual with distorted sexual attitudes. He does not minimise his past sexual offence”. The appellant claimed that he had been kidnapped, tortured and raped by men who he believed were motivated by political hostility to his father. He described being tortured to reveal the whereabouts of his father after he had fled to the UK to seek asylum. The proposition that the appellant’s father was a political target for the then-ruling party was roundly rejected in the 2017 previous determination. There is nothing in Dr Galappathie’s report which expressly takes account of this important feature of the procedural and factual background before he accepted the appellant’s narrative as the main underlying reason for his sexual offending. Instead, the expert addressed the previous determination at paragraph [107] which begins in the following way:
In my opinion, the previous Tribunal determination does not fully consider his reduced risk of sexual offending. The Tribunal determination highlights [CC] as being a sexual predator that is likely to re-offend.
22. We found there to be force to Ms Masood’s submission that the expert appeared here to take on the role of advocate in critiquing the previous determination as opposed to objectively and impartially taking this important previous judicial analysis into account in informing his expert opinion. Paragraph [107] continues to address the appellant’s overall risk profile by observing, in part, that he “expresses remorse for the index offence to the fullest extent possible”. The theme of the appellant’s remorse was addressed at paragraph [109] where, in critiquing the Secretary of State’s reasons for refusal letter, the following points were made:
In my opinion, the Home Office refusal letter correctly highlights the severity of his index offence but does not acknowledge the specific circumstances of the index offence or his progress since the offence, in particular as outlined earlier, that [CC] committed a serious but isolated sexual offence at a young age, namely whilst he was only a child himself, against a background of being a victim of sexual abuse and that he has now served a long prison sentence, completed courses on sexual offending, developed insight and remorse for his sexual offence, expresses a good understanding of the harmful effects of his offence on the victim, has addressed his risk factors for sexual offending and has been successfully released without any return of sexual offending behaviour. [Emphasis added]
23. A second report followed shortly after, on 20 January 2022. In this report, the expert addressed further instructions in which he was asked to “Acknowledge that you are aware of the findings and have read the FTT If he had been responsible for other offences, it would impact his assessment of risk”. At paragraphs [17]-[19] of this report, he responded to the further instructions in the following way:
I can confirm that I am aware that the First-Tier Tribunal Judge believed that [CC] was responsible for two other sexual offences. I am also aware the police were concerned about other sexual offending behaviours. I understand that he was actually only charged and convicted for one sexual offence. I can also confirm I have read the First-Tier Tribunal judgment.
[…]
In my opinion, it is difficult to form an opinion on his risk of sexual offending based on whether he had actually been responsible for the other offences, as he has not been charged or convicted of these offences. However, if it is assumed he has committed the other offences and that they were predatory in nature, then these offences would increase his risk of sexual offending at that time they were committed and suggest an escalating pattern of sexual offending was developing at that time and would also increase his potential risk of future sexual offending. However, even if he has committed the other offences, his progress following the index offence indicates that his risk of committing further sexual offences is low. In my opinion, my analysis of his risk of sexual offending would still stand. I would still place significant weight on the long prison sentence he has served, the work he has completed on sexual offending, his development of victim awareness and most significantly his avoidance any further sexual offending since being released to the community. In my opinion, if it is assumed he had committed the other sexual offences mentioned, in my opinion his current and future risk of sexual offending is still low and can safely be managed in the community.
24. On any sensible view, it is striking that the expert’s instructing solicitors felt compelled to ask for a further report so soon after the first which contained the risk assessment. It is all the more striking that the further instructions were directed to asking Dr Galappathie to confirm that he had read and taken account of the critical 2017 previous determination. This was a strong signal that the expert had indeed left important material matters out of account when he first assessed the danger posed by the appellant. While the overall finding of low risk was maintained, the judge assessing the expert’s evidence should have been alert to the possibility that the expert might have become engaged in defending an earlier assessment.
25. It is evident from the analysis above that there are palpable indications that Dr Galappathie overlooked important parts of the overall evidential landscape before he came to the conclusion that the appellant presented only a low risk of reoffending. He failed to see signs of the appellant downplaying his culpability for his offending and initially failed to apply his mind to a deeply concerning sequence of sexual attacks on female strangers around the time of the index offence. In addition, the expert appears to have uncritically accepted the appellant’s claim to have been remorseful about his offence. Had he fully considered the 2017 determination with the required care, he would have seen that the appellant has a track record of falsely claiming to be remorseful about this offending in the context of seeking to achieve a favourable outcome in immigration and asylum proceedings. At paragraph [48] of the 2017 determination, it was recorded that the appellant had provided a letter in which he acknowledged his mistake as a teenager and expressed sorrow for the victim. However, at paragraph [54], it was noted that his position changed under cross-examination by reverting to the suggestion that the victim consented to the sexual contact and that he had done nothing wrong. The judge who considered the risk posed by the appellant in 2017 reached the following conclusions between [90] and [102] of his decision:
[90] The main issue in controversy is whether the Appellant is genuinely remorseful about the crime of which he was convicted, and that therefore he should be treated as a reformed character, instead of being regarded as a dangerous sexual predator, which is the case advanced by the Respondent.
[…]
[93] With regard to the index offence, a repeated theme throughout the Asset report is the Appellant's failure to recognise his guilt. In an entry made on 27 April 2016, it was said that the Appellant had demonstrated a positive motivation as he had engaged positively with his education and built good relationships with some staff and young people. However, the main concern was his motivation to address the triggers for his offending, arising from his continued denial of the offence. The Appellant did not have a clear awareness of the seriousness of his actions or the consequences of his behaviour to the victim.
[94] Another entry made on the same date states that the Appellant struggled to acknowledge the full seriousness of the offence and continued to deny his behaviour. In line with this, he had not shown any remorse for his actions.
[95] It was previously noted […] that his thinking around the offence was distorted. He had not moved in any way towards admitting the offence other than to say that there was a sexual encounter that was consensual. The Appellant had not shown any empathy for the victim or any remorse. He could not offer any explanation for his actions other than to say that the victim wrongly accused him of the offence. His thinking appeared highly distorted when discussing the encounter. The victim was clearly intoxicated and unable to exert any pressure on him, and yet he described the victim forcing him to touch her sexually.
[96] Although the Appellant has expressed remorse in communications directed to the Tribunal, it is apparent from his oral evidence that he is not sincere about this. The view taken by the authors of the ASSET report is that the risk which the Appellant poses to others remains very high. Their reasoning is that he has denied the offence and has not shown any remorse and indeed has demonstrated a distorted view of the victim. He has not demonstrated any understanding of his own behaviour or how he can change in relation to reducing the risk of harm to others in the future.
[97] The Appellant presents as a very high risk of re-offending on a quantitative assessment, as well as on a qualitative assessment. The ASSET report contains an analysis of 12 factors, against which a score is given. The maximum possible score for the 12 factors is 48, and the Appellant's total score is 31. The Appellant is given a score of four for living arrangements, emotional and mental health, perception of self and others, thinking and behaviour, attitudes to offending and motivation to change. The only factors where he is given a zero score are education, training and employment, substance misuse and physical health. He is given a score of three for family and personal relationships, which reflects a concern that his parents are unable or unwilling to set appropriate boundaries for him. In an entry made on 27 January 2016, he insisted that there were no issues with regard to family relationship factors and his parents setting appropriate boundaries. But the caseworker disagreed. The parents' denial of the offence was a concern. His family could not meet the need to set appropriate boundaries:
"[The Appellant] has produced some reports of tense relationship with father in relation to pressure to conform to a good Muslim."
[98] Even if the Operation Nexus evidence is discounted, I find that there is a high risk of the Appellant reoffending and that he presents a high risk of harm to the public. This is simply on the basis of the Appellant continuing to maintain his innocence in respect of the sexual offence for which he was convicted, and continuing not to feel any empathy for the victim or to recognise the psychological harm which he has inflicted on her. With regard to the Operation Nexus material, I consider that there are reasonable grounds to suspect the Appellant of having committed some of the non-conviction offences discussed by PC McLachlan in his witness statement (but not all of them, since in one instance he was expressly exonerated by CCTV footage). But I find that the Respondent has discharged the burden of proving that these suspicions are well founded in only two cases.
[100] It could just be a coincidence that the assailant in NC No.1 had a partial DNA profile which matched that of the Appellant. But this is very unlikely on the balance of probabilities. I recognise that the victim did not make a positive identification of the Appellant as being her assailant, but she was being asked to identify the assailant some 18 months after the incident took place. Moreover, the male suspect had approached her from behind, so it was unlikely that the female victim had a reasonable opportunity to look at his face.
[101] NC No. 10 (18 June 2015), has very similar MO to the index offence, in that the male suspect engaged the victim in conversation before making his sexual assault on her. The Appellant was arrested for the offence about a month later as he fitted the description given by the victim. The victim did not respond to the police when asked to attend to see if she could identify the Appellant. So she did not positively identify him as being her assailant, but equally she did not fail to pick him out in an identity parade. I find that the Appellant gave a false alibi in relation to this offence. The alibi which he gave was disproved by the police who checked his alibi. The fact that the Appellant gave a false alibi is more consistent with him being guilty of the offence, than it is with him being innocent of the offence. For the above reasons, I find it is likely that the Appellant committed this offence.
[102] Although the Respondent has not proved that the Appellant was guilty of the remaining NCO's listed by PC McLachlan, I find that she has shown that the Appellant is a sexual predator who is likely to re-offend in the same or similar manner to the index offence if he is at liberty. She has also shown on the balance of probabilities that the appellant has been convicted of an offence that has caused serious harm psychological harm to the victim, who was highly vulnerable and who responded to the trauma of the assault by attempting to commit suicide, leading to her being sectioned under Section 3 of the Mental Health Act.
26. The above detailed analysis touching on the appellant’s remorse in 2017 and the full extent of his offending for the purposes of assessing risk in an immigration and asylum context were barely touched upon by Dr Galappathie in his reports of 7 and 20 January 2022. Not only did the judge who considered the risk posed by the appellant in 2024 fail to refer to these manifest gaps of reasoning in the expert’s opinion evidence on which she relied so heavily, there was a yet further and more recent indication that the appellant was not at all remorseful about his sexual offending in 2015. In the context of a judicial review challenge to his detention, Jeremy Johnson QC, sitting as a Deputy Judge of the High Court, assessed the background in a judgment dated 15 October 2019. He noted, at [8], that the appellant continued to deny the offence for which he was convicted in 2015 and later said this at [111] about the 2017 previous determination:
I agree with the Tribunal’s assessment that the Claimant posed a high risk of reoffending and a high risk of harm to the public having regard to the particular nature of the offence for which he has been convicted, the lack of any clear evidence of rehabilitation, his continued denial of that offence, and the likelihood that his offending was not limited to that single offence. Although the Defendant should not (without further enquiry) properly have proceeded on the basis that the Claimant had committed all of the offences for which he had been arrested, it was relevant to the assessment of risk that he was suspected of other offending. Moreover, even if all the other offences were discounted, the nature of the offence was indicative of the Claimant posing a high risk to the public.
27. If the judge who considered the risk posed by the appellant in 2024 sought to rely on Dr Galappathie’s uncritical acceptance of the appellant’s remorse and his untested witness statement, it was incumbent on her to assess this issue in its proper context. In the face of the evidence and previous judicial findings that the appellant was a dangerous sexual predator who was neither remorseful nor reformed, a lawful conclusion on this important question demanded full engagement with these matters. CE (Cameroon) should have put the judge on alert to closely examine Dr Galappathie’s risk assessment to ensure that he had not fallen into the same analytical traps so vividly described in that decision. It is clear from a close analysis of his expert reports that the kind of errors of reasoning and judgement identified in CE (Cameroon) were there to be seen. Not only did the judge fail to see the analytical flaws in Dr Galappathie’s opinion evidence, she referred, without commentary, to some of his more problematic findings such as the 2015 offence being wrongly characterised as “isolated”, that the appellant did not have “distorted sexual attitudes” and had not “minimise[d] his past sexual offence” (see [33] of the 2024 decision). We are bound to conclude that the judge fell into legal error in her assessment of Dr Galappathie’s evidence. We are satisfied that the judge’s risk assessment is materially flawed and involved a demonstrable error of law.
Ground 4
28. As indicated above, the sexual offences were only part of the picture which fell to be assessed by the judge in deciding whether the appellant had rebutted the presumption that he constituted a danger to the community. He was also sentenced in June 2023 for his role in conspiring to supply significant quantities of class A drugs as part of an organised criminal enterprise. This was the conviction which triggered the presumption the appellant would be required to rebut before there could be any further consideration of the substance of his protection claim. The judge noted that she had the sentencing remarks available to her. HHJ Bryant-Heron KC made the following remarks about the scale of the drugs operation and the appellant’s role:
This case features two drug alliance. The AJ line operating in Bromley-by-Bow in East London and the Ben and Jerry line operating in Brighton. During the indictment period on the prosecution's figures, the AJ line distributed approximately 3.5 kilogrammes of Class A drugs and the Ben and Jerry line distributed about 1.5 kilogrammes of Class A drugs. Those figures derived from the application of the algorithm approved by the Court of Appeal in the case of Akrofi Daniels and now in widespread use. I will come on to the defence evidence in relation to the drug raid in due course.
[…]
You, [CC], were an intermittent holder of the AJ line. You operated it when required. Usually when [a co-defendant] was not available and other than that, you acted as a runner or courier of the drugs as and when required. The AJ line ran throughout 12 to 13 hours a day and it was identified because officers were interrogating the phone of a drug user and customer of the line. The method employed by the AJ line is familiar to this court. You sent bulk messages, usually in the morning, and you use runners to deliver the drugs to customers. The Ben and Jerry line was the county line operating in Brighton. Again, bulk messages were sent out on an almost daily basis. And again, the drugs line was identified by officers investigating the source of purchases from local drug users and identifying the line.
[…]
[CC] you were an intermittent holder of the AJ line. You have stepped in when others are not available, usually [a co-defendant]. You also acted as a runner [inaudible] AJ line. You were involved in putting drugs into [inaudible]. When we searched, your premises were searched on 25 January 2022, one and a half grammes of cocaine and wrap of heroin, lots of empty wraps and snack bags were found consistent with your role in this conspiracy. You were, as it was put by prosecution counsel a trusted runner, ultimately, taking directions from above as well as the occasional operating the line. The AJ line over the indictment period, as I have said, was three and a half kilogrammes on the prosecution figures. Figures produced by the expert instructed [inaudible] [a co-defendant], some 1.75 kilogrammes. I accept that you were only involved in about two days a month. That is what it says in your basis of plea and I sentence you on that basis. You packaged drugs when no one else was available. I sentence you on that basis. As your Counsel has accepted, realistically if I may say so, you had a significant role. But because of the nature of your role and its intermittent nature, I take the view the appropriate harm category is Category 3 in your case. Category 3, significant role has a starting level of four and a half years with a range from three and a half years to seven years. I take the view that although this is Category 3, there has to be an upward adjustment. This is a more serious type of behaviour within Category 3 in my judgement and the amount of drugs justifies an upward adjustment. The starting point in your case, is one of five years in prison. Although you have one previous conviction in 2015, it is of little or no relevance to this sentence and there were no other aggravating factors. So, I turn to your mitigation. You were born in Bangladesh. You have a report before the court prepared by a Doctor [?] because there has been some concern about your mental health. You were diagnosed with PTSD, Post Traumatic Stress Disorder. You have an emotionally unstable personality disorder and you suffer from anxiety and depression. Again, I take into account the sentencing guidelines in relation to mentally disordered defendants. This is mitigation, for which there will be a reduction in sentence because it is more difficult, considerably more difficult, for someone with PTSD to undertake a prison sentence.
You have been in custody since your arrest on 26 January, that will be taken into account, credited against your sentence. I am told that you have spent your time in custody constructively. I accept that and I have read references from [inaudible] Mr Ahmed, in your case. Taking all these matters of mitigation into account I reduce the sentence with a downward adjustment of 12 months which reduces it before I take account of your plea of guilty to a period of four years on each count concurrently. The appropriate reduction for a plea of guilty in your case is one of 25%. You having pleaded guilty at the plea and trial preparation hearing stage or its equivalent. A 25% reduction in four years is 12 months a year down to three years.
[CC] would you stand up, please. The sentence of the court is that under count one, you will serve a term of three years’ imprisonment. Under count two, you will serve a term of three years’ imprisonment concurrently. […]
29. Beyond, the sentencing judge’s acceptance that the appellant was not at the senior end of the operation (but his role was significant), there is nothing to indicate a relationship of trafficking nor that he was forced into working on behalf of the criminal gang. There is nothing to suggest that the trafficking claim was ever relied upon as a defence or as mitigation.
30. In the context of the 2024 decision, the judge addressed this important and recent dimension of the risk assessment in brief terms at paragraph [34]. While it was recognised that this development represented an escalation in the seriousness of his offending, it was also accepted that it was connected to trafficking for the purposes of forced criminality and that there were now safeguards in place to prevent such an abusive relationship taking root in the future. We are concerned that the judge did not assess the divergent basis on which the appellant was sentenced and which, at the time of her judicial assessment, stood as the lawful factual premise on which he was convicted. Ms Capel was right to observe that the factual issue of whether the appellant was a victim of trafficking was a matter for her to decide on the evidence. However, she was required to take account of relevant factors before coming to her findings on this important issue. The judge’s brief reasoning does not inspire confidence that she properly and adequately took account of the basis on which the appellant was sentenced for his role in such a serious and recent pattern of organised criminality. This operates as yet further reason to conclude that the overall risk assessment is fundamentally flawed.
31. The combination of grounds one and four have persuaded us that the risk assessment which underpinned the finding that the appellant rebutted the presumption that he was a danger to the community of the UK involved errors of law. In allowing the appeal on protection grounds, these errors are plainly material because the judge could not have embarked on any assessment of the substantive issues going to the Refugee Convention claim or under humanitarian protection principles without first lawfully deciding that the appellant had rebutted the presumption of exclusion which operated against him. The structure of decision-making in an appeal such as this requires an orderly and sequential series of issues to be addressed. For the reasons we have given, the judge did not succeed in lawfully moving beyond the first such issue. The remainder of the decision going to the protection claim, which also involved significant weight being given to Dr Galappathie’s expert evidence, must fall away as a consequence. It follows that it is unnecessary to consider the remaining grounds of appeal save for ground eight.
Ground 8
32. Ms Capel forcefully argued that there was no substance to the respondent’s suggestion that the alternative finding, at [54], that the appeal succeeded on Article 3 human rights grounds was flawed because there was no analysis of the test laid out by the Supreme Court in AM (Zimbabwe) v Secretary of State for the Home Department v AIRE Centre [2021] A.C. 633. It was argued that a fair and natural reading of the overall decision made it tolerably clear that the Article 3 claim succeeded on the strength of the findings previously reached about the risk of the appellant being mistreated in Bangladeshi mental health institutions and his vulnerability to the malign interests of people traffickers. We broadly agree with this proposition, but it is equally clear that we have found significant errors in the fact-finding analysis which underpinned these conclusions such that we are unable to preserve them as facts. It follows that the factual foundation on which the alternative Article 3 findings was built has now fallen away.
33. We cannot be satisfied that the findings which were relied upon to support the alternative Article 3 conclusion can stand. We accordingly find that this dimension of the judge’s decision necessarily involved a material error of law such that it also falls to be set aside.
Disposal
34. By the conclusion of the error of law hearing, the parties were in broad agreement the appeal should be remitted if we reached the findings we have set out above. We agree that the First-tier Tribunal is the appropriate venue to resolve the broad sweep of facts which now need to be resolved. Ms Capel indicated that consideration would need to be given to the instruction of a suitably qualified expert to replace Dr Galappathie and Ms Masood indicated that consideration would be given to whether Dr Amundsen should be cross-examined. It is clear that the parties may require some time to adequately prepare for this complex and challenging matter to be reheard. This is another factor which weighs against the matter being re-made in the Upper Tribunal.
35. It will be for the next constitution of the First-tier Tribunal to decide whether the appellant is fit to give evidence and whether adverse inferences fall to be drawn if he chooses not to. Fitness is a dynamic factor to be determined at a point in time. It is open to the respondent, at the appropriate time, to reflect upon the evidence available and whether she stands by or varies her position stated in the respondent’s review of 10 June 2024 in relation to no issue being taken with the appellant not being called to give evidence in support of his appeal.
Notice of Decision
The decision of the First-tier Tribunal involved material errors of law. We set aside the decision and do not preserve any findings of fact. The matter is remitted to the First-tier Tribunal to be reheard before a judge other than the judges who decided the appellant’s appeal proceedings in 2017 and 2024.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 May 2025