England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
DA/01619/2014

		Royal Courts of Justice Strand, London, WC2A 2LL
		31/10/2017

Lord Justice Sales:

1. This is an appeal in an immigration case concerning the proposed deportation of the appellant, who has a right of permanent residence in the UK acquired under the Immigration (European Economic Area) Regulations 2006. It is common ground that it is the 2006 version of the EEA Regulations which is applicable in this case. Regulation 21 provides the relevant legal framework governing the Secretary of State's powers to deport the appellant. The Secretary of State wishes to deport the appellant by reason of serious offences committed by him in the UK.
2. The appellant is a citizen of Cameroon. He was born in 1980. In early 2005 he made an application for admission to the UK as an EEA family member to join his wife, who is Spanish. He was granted admission for a year and arrived on 15 February 2005.
3. The appellant's wife was exercising EU Treaty rights in the UK by working here. He applied for a permanent residence card, which was issued to him on 19 August 2010. Since then, the appellant and his wife have separated.
4. On 6 October 2011 the appellant was convicted of one count of rape of a female aged 16 years or over and two counts of sexual assault of a female after pleading not guilty at trial. He was sentenced on 1 December 2011 to six years' imprisonment. His appeal against conviction and sentence was dismissed.
5. The circumstances of the offending were that the appellant held a party at his residence which was attended by his best friend and the best friend's girlfriend, who was a student at the time. The appellant had been drinking. The girlfriend became very drunk, as the appellant was aware, and passed out. While she was in a comatose state the appellant assaulted her sexually and then raped her. He did not use protection. The next day the girlfriend woke to find dried semen on her, which proved to be that of the appellant. She felt violated and suffered psychological repercussions.
6. The appellant was of good character up to the time of the offences. He has never accepted that he is guilty of them. He has maintained throughout that the sex with his friend's girlfriend was consensual and indeed that she initiated it. After his appeal was dismissed he made an application to the Criminal Cases Review Commission which was under consideration at the time of the decision of the First-tier Tribunal ("FTT") in this case. It appears that by the time of the appeal to this court the Commission had decided not to seek a review of his conviction.
7. Despite the consistent position of the appellant that he is innocent of the charges against him, he was of course disbelieved by the jury and the Secretary of State is entitled to proceed on the basis that he was guilty. It is lawful for her to make her assessment of the risk posed by the appellant in the light of that. The position is in this respect similar to that applicable when questions of release on licence or prisoner security classification arise: see e.g. R (Hassett and Price) v Secretary of State for Justice [2017] EWCA Civ 331, at [70].
8. In the sentencing remarks by the trial judge, he noted that the appellant was of previous good character and also stated his view that the appellant did not pose a risk of re-offending such as to warrant the imposition of a sentence of indefinite detention for the protection of the public. The judge noted that the fact that the appellant chose to have unprotected sex with the victim was an aggravating feature of the offence.
9. As a result of the appellant's continued denial of guilt in relation to the offences he undertook no sex offender courses in prison or other work to address his offending behaviour. Apart from this his conduct in prison was good.
10. As the time for the appellant's release on licence approached, the National Offender Management Service carried out a risk assessment in relation to him which was set out in a report ("the OASys report"). In summary, the OASys report was to the effect that there was a low probability that the appellant would re-offend (although it was not a negligible possibility and there were risk factors which tended to increase the probability of this happening), but the harm if he did again prey on a vulnerable female in a similar way would be very serious. Having regard to the combination of the two dimensions of risk evaluated in the OASys report (i.e. probability of reoffending and magnitude of harm if reoffending occurred), the overall assessment was that there was a high risk of harm to vulnerable females if the appellant was released into the community.
11. The OASys report referred to the appellant's good character before his offences and his good behaviour in prison. It also set out various measures which it was proposed should be put in place if he were released on licence to try to limit the risk which he would pose to others. According to the predictor scores in the report, the appellant fell into the low risk category if released (although it was assessed that there was still a 13% probability in his case of proven reoffending in 2 years). A qualitative review of a range of relevant factors, assessed in the light of the refusal of the appellant to acknowledge his guilt and the fact that as a result relevant sex offender treatment courses had not been undertaken by him, indicated that several were linked both to the probability of reoffending by the appellant and to the risk of serious harm occurring if he did. The factors having this effect were those in respect of his relationships, his lifestyle, misuse of alcohol by him, his thinking and behaviour and his attitudes to the treatment of others. It was noted that the offending involved a significant breach of trust given that the victim was the partner of the appellant's best friend. The OASys report stated, "Young females are at risk of further offences from Mr Kamki", especially if they were "alone and vulnerable due to alcohol or possibly drug misuse."
12. Towards the end of the appellant's time in prison the Secretary of State made a decision on 22 July 2014 to make a deportation order in relation to him pursuant to regulation 19 of the EEA Regulations. The decision letter referred to the appellant's offending, the judge's sentencing remarks and the OASys report. Mr Knafler QC for the appellant accepts that it correctly summarised the effect of the OASys report. The decision letter noted that the OASys report assessed there to be a low probability of re-offending by the appellant (para. 30), but made an overall assessment that there was "a high risk of harm to young females" (para. 24). The Secretary of State set out her view in light of the appellant's offending and the OASys report that the appellant represented a serious risk of harm to young females in the UK and that the tests in regulation 21 were satisfied so that she was entitled to deport him.
13. The appellant appealed against this decision to the FTT. The FTT dismissed his appeal in a decision of
14. 5 November 2014, which is the decision to which the present appeal relates. The appellant appealed from the FTT to the Upper Tribunal, but the Upper Tribunal held that the FTT decision contained no error and upheld it. The appellant now appeals from the Upper Tribunal to this court.
15. Mr Knafler made some criticisms of the Upper Tribunal decision, but it is unnecessary to consider those because he accepts that it is the decision of the FTT which is the operative decision in this case. If Mr Knafler succeeds in making good his criticisms of the FTT decision the appeal will succeed in this court, but if he does not the appeal will fail.
16. As appears from this account, this is a second appeal to this court. Permission to appeal was granted by Moore-Bick LJ, who applied the second appeal test. At that stage it appeared that the appeal would raise an important point of principle, namely whether for the purposes of the tests in regulation 21 for deportation of a foreign national with a permanent right of residence under the EEA Regulations it is legitimate to look both at the likelihood of re-offending occurring and at the seriousness of the consequences if it does.
17. However, after the grant of permission Mr Knafler was instructed for the appellant. He applied for permission to recast the grounds of appeal, which was granted by McFarlane LJ. As appears below, he also added some more grounds of appeal at the hearing before us, for which we granted permission.
18. At the hearing, Mr Knafler explained that he accepted that in applying regulation 21 it is legitimate to look both at the likelihood of re-offending occurring and at the seriousness of the consequences if it does. I am bound to say that this seems to me to be a realistic concession. But it has meant that the appeal has proceeded as a conventional appeal in which Mr Knafler contends that the FTT erred in its approach in other ways, none of which gives rise to an important point of principle or practice of relevance to other cases.

The EEA Regulations

19. The material provisions in the EEA Regulations 2006 are regulations 19 and 21. So far as is relevant they provide as follows:

"19(3) … a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if –

(a) He does not have or ceases to have a right to reside under these Regulations; or

(b) He would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.

…

21. – (1) In this regulation a 'relevant decision' means an EEA decision taken on the grounds of public policy, public security or public health.

…

(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.

…

(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles:

(a) the decision must comply with the principle of proportionality;

(b) the decision must be based exclusively on the personal conduct of the person concerned;

(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e) a person's previous criminal convictions do not in themselves justify the decision."

20. It is common ground that the appellant has a permanent right of residence under the EEA Regulations, with the result that the tests in regulation 21(3) and in regulation 21(5) have to be satisfied in his case if the Secretary of State's deportation decision is to be upheld. It is common ground that the more stringent test in regulation 21(4) ("imperative grounds of public security") is not applicable in his case.

The grounds of appeal

21. The grounds of appeal which were developed before us are as follows:

(1) The FTT failed properly to apply the test in regulation 21(3);

(2) The FTT misunderstood the meaning and effect of the OASys report, in particular in its summary of it at para. [46] of the decision, and failed to identify cogent reasons for departing from the risk assessment in that report;

(3) The FTT failed properly to assess the level of risk posed by the appellant (a) by disregarding the appellant's good character and conduct before and after the offence, (b) by placing manifestly excessive weight on the appellant's inability to undertake sex offending courses, without assessing that inability in the round together with other relevant considerations, (c) by disregarding the management programme to manage risk that was planned in the event of the appellant's release, and (d) by consequently, in substance, sanctioning the appellant's deportation as further punishment for his offence (which is not permissible under the Regulations) rather than because his continued presence in the UK poses a serious risk to a serious aspect of public safety.

22. Ground (3) was added with our permission by amendment of the grounds of appeal at the hearing before us. The Ground had been sufficiently foreshadowed in Mr Knafler's skeleton argument for the appeal and the Secretary of State had had a fair opportunity to marshal her arguments in response in advance of the hearing.

Discussion

Ground (1): application of regulation 21(3)

23. In my judgment, this ground of appeal is not made out. The FTT had clearly in mind that it had to apply both the test in regulation 21(3) and the tests in regulation 21(5). It gave proper and sufficient reasons to justify its conclusion that both these provisions were satisfied.
24. At the hearing in the FTT, as recorded at para. [31], the appellant's counsel pointed out that the Secretary of State had to meet the requirement in regulation 21(3) ("serious grounds of public policy or public security" in favour of the appellant's deportation) and also the requirements of regulation 21(5), in particular that the appellant represents "a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society". The factors relevant to application of each of these provisions clearly overlap to a significant degree.
25. It seems that the appellant's counsel at the hearing in the FTT may have focused more on regulation 21(5) in his arguments, but that does not mean that the FTT lost sight of regulation 21(3). The FTT addressed both provisions in the analytical part of its reasoning in paras. [43] onwards. At [44] the FTT judge recognised that the Secretary of State had to satisfy it that the correct criteria in the Regulations were met in relation to the appellant and referred in general terms to the "assessments I have to make relating to regulation 21 of the EEA Regulations".
26. At para [46] the FTT addressed the question of the risk posed by the appellant in the context of regulation 21 generally, before it turned to the provisions separately. The FTT referred both to the trial judge's sentencing remarks and to the OASys report: see below under Ground (2).
27. At para. [47] the FTT referred back to the appellant's written and oral submissions as the prelude to its analysis to deal with them in turn. Those were the submissions it had summarised at [31], which referred to the distinct tests in each of regulation 21(3) and regulation 21(5). Then at [48] the FTT stated its view that the Secretary of State's decision to deport "was properly made on the grounds of public policy." In the light of [47] and in the context of the structure of the decision as a whole, I consider that this paragraph is clearly setting out the FTT's view that the test in regulation 21(3) was satisfied. The FTT stated that this was so in view of the nature of the offence, and was not based on considerations of deterrence.
28. Next, the FTT turned to consider regulation 21(5) as a distinct point, at [49]-[51]. However, as with [46], it is again relevant that the FTT looked carefully at the question of the risk posed by the appellant to society in a way which was also germane to its view in relation to regulation 21(3). At the end of [51] the FTT said:

"… [The threat posed by the appellant] at the date of my decision is a present threat taking into account the assessment of the risk posed by the appellant to vulnerable young females. The fact that the appellant does not accept his guilt makes that present threat even more acute. Taking into account the nature of the offence the appellant has committed and the effects upon his victim that threat is sufficiently serious to affect one of the fundamental interests of society. It is a fundamental interest of society that young vulnerable females who are not in a position to consent to sexual advances should be protected from being violated by men such as the appellant who has been assessed as posing a high risk to such females."

29. At para. [52] the FTT referred again to the summary of the tests to be applied as set out by the appellant, and stated in terms its conclusion that "The [Secretary of State]'s decision to deport the appellant has been made 'on serious grounds of public policy or public security'" – a direct quotation from regulation 21(3). Again, that the FTT did indeed focus upon each of regulation 21(3) and regulation 21(5) as distinct tests is brought out by the fact that it then turned in para. [53] to set out its separate conclusion that regulation 21(5) had been satisfied.
30. This analysis of the FTT's decision shows that the appellant's submission under Ground (1) is not sustainable. The FTT referred explicitly to the distinct tests in regulation 21(3) and regulation 21(5). It did not muddle them up or fail to address regulation 21(3). Parts of its reasoning in relation to the risk posed by the appellant were properly treated as relevant to both tests. There was no error of law or approach. Mr Knafler correctly accepted in his submissions that, if that was so, it could not be said that the FTT had reached an irrational or unlawful conclusion in relation to regulation 21(3).
31. Mr Knafler sought to suggest that the FTT had not approached its task in relation to application of regulation 21(3) sufficiently conscientiously: see Bulale v Secretary of State for the Home Department [2008] EWCA Civ 806; [2009] QB 536, [28]. But in my view there is nothing in that criticism. The FTT's approach was proper and correct. It conscientiously analysed the risk posed by the appellant and reached a lawful conclusion as to the application of regulation 21(3) in the light of that risk.

Ground (2): did the FTT misunderstand the OASys report?

32. Mr Knafler submits that the FTT misunderstood the OASys report in its reasoning at para. [46]. He says this even though he accepts that the report was correctly summarised in the decision letter of the Secretary of State which was before the FTT and even though the FTT itself summarised the OASys report in a similar accurate way at other points in its decision, at [16] and [56].
33. According to Mr Knafler the offending part of the FTT's reasoning is in this passage from [46], where after referring to the judge's sentencing remarks and the OASys report by the Offender Manager the FTT said:

"In those circumstances it is clear that the Offender Manager was concurring with the view of the sentencing judge that the appellant is at low risk of offending, [but] properly concludes in my view, that whilst that risk is low the risk in relation to committing similar offences against young females who are similarly vulnerable is high. I concur with that view."

(I have added the word "but" to bring out the obvious sense of the FTT's reasoning in this passage).

34. Mr Knafler submits that the FTT became muddled and incorrectly understood the OASys report to be saying that the probability of offending generally is low but the probability of offending against vulnerable young females is high. This is incoherent and overstates the probability of the appellant re-offending against young females.
35. In my view, this criticism of the FTT's decision is not justified. In the context of analysing the OASys report the meaning of the FTT is clear: the offender manager's view as set out in the report was in line with that of the judge, namely that the probability of the appellant re-offending is low ("the appellant is at low risk of offending"), but was also that the overall risk in relation to the commission of similar offences against vulnerable young females was high ("the risk in relation to committing similar offences [etc]"), in the sense of taking the probability of re-offending in combination with the serious harmful effects if it occurred. The FTT judge uses different language to reflect the two different senses of "risk"; it is not plausible to read the decision in an incoherent way rather than so that it makes coherent sense; and reading it in this way corresponds with what the OASys report itself said, as the FTT judge had himself set out at [16] and [56] of his decision. As noted above, Mr Knafler accepts that such a combined approach to evaluation of risk under regulation 21 is legitimate.

Ground (3): Failure properly to assess the risk posed by the appellant

36. Ground (3) has a number of limbs to it. In my judgment, none of them is made out on this appeal.
37. Under part (a), Mr Knafler submits that the FTT improperly paid no regard to the appellant's good character and conduct before and after the offence. However, this criticism cannot be sustained on the facts. The FTT referred to and relied upon the judge's sentencing remarks and the OASys report, both of which took the appellant's good character before the offence expressly into account. The OASys report took his good conduct in prison expressly into account as well. Moreover, the FTT itself made comments at para. [59] which amplified the views in those sources about the appellant's good character. Despite this, in view of the serious offences by the appellant and his failure to acknowledge responsibility for them or to address his offending behaviour, the FTT was entitled to reach the conclusion it did regarding the risk posed by the appellant.
38. Similar reasoning applies in relation to part (b) of Ground (3) regarding the appellant's inability to undertake sex offending courses. That was dealt with at length in the OASys report and was part of the foundation for the conclusion in that report as to the risk posed by the appellant to vulnerable young females, with which the FTT concurred at para. [46].
39. Similar reasoning also applies in relation to part (c) of Ground (3) in relation to the programme to manage the risk posed by the appellant that was planned in the event of the appellant's release. Again, that was addressed explicitly in the OASys report and was taken into account in the risk analysis there, which the FTT adopted.
40. Mr Knafler submitted that part (d) of Ground (3) (improperly sanctioning the appellant's deportation as further punishment for his offence) was the conclusion to be drawn from parts (a) to (c) above. But since none of those parts is made out, nor is the conclusion. Indeed, in my view it is obvious from the FTT's decision read as a whole that there was no question of it sanctioning the appellant's deportation as a further punishment for his offence.

Conclusion

41. For the reasons set out above, I would dismiss this appeal.

Lord Justice Newey:

42. I agree.