(Immigration and Asylum Chamber) Appeal Number: DA/00363/2013
THE IMMIGRATION ACTS
Heard at Field House
On 10 December 2013
On 16 December 2013
UPPER TRIBUNAL JUDGE MOULDEN
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
MR TYRONE ANTHONY WHITE
(No Anonymity Direction Made)
For the Appellant: Mr G Saunders a Senior Home Office Presenting Officer
For the Respondent: Mr R Toal of counsel instructed by Rodman Pearce
DETERMINATION AND REASONS
9. Paragraph 1 of the grounds argues that the panel failed to resolve the different opinions expressed in the Probation Service reports and the independent risk assessment as to the claimant's risk of harm to the public if he were to reoffend. It is argued that the conclusion that he does not constitute a danger to the public is flawed. I find that this ground is largely misconceived because it addresses only part of the risk assessment; the secondary part which only comes into play if the claimant does reoffend. In paragraph 73 the panel correctly state that; "The OASys Report, the National Probation Service report with information for a Foreign National Prisoner and the Independent Risk Assessment all agree that the Appellant is at a low risk of reoffending". The difference of opinion was not as to the risk of reoffending but the risk of harm if he were to reoffend. The public reports assessed this as a medium risk to the public although low in other categories whilst the Independent Risk Assessment concluded that there was a low risk of serious harm. The panel properly assessed these reports in the light of the evidence and gave clear and sufficient reasons for the conclusion that it was extremely unlikely that he would be involved in criminal activities in the future.
10. In paragraph 2 of the grounds it is argued that in paragraphs 80 and 94 the panel failed properly to assess the admitted delay by the Secretary of State which should not have been determinative, although it is not disputed that the delay allowed the claimant to develop stronger Article 8 rights in this country. Paragraph 18 deals almost entirely with delay not by the Secretary of State but by the claimant. The only reference to any lack of action on the part of the Secretary of State is in the sentence; "given that the appellant was reporting for a number of years and there is no evidence that the respondent ever commenced in the enforcement action against him, we accept that the appellant may have formed the view that he could continue without formally regularising his status." In paragraph 94 the panel properly weighed the fact that the claimant established family life in the UK at a time when he had no lawful leave to be here and he must have known that his situation was precarious against the fact that he reported to the Secretary of State for a number of years without any action being taken to remove him. I can find no indication that the panel treated any delay by the Secretary of State as determinative or that there is any error in the approach to delay.
11. In paragraph 3 of the grounds it is not correct to state that the panel's conclusions as to risk on return are not based on any objective evidence. There is a proper assessment of the objective evidence and the country guidance case law in paragraphs 82 to 84. There is no conflict or inconsistency between these findings and the conclusion that the claimant would not be at risk on return at the hands of those with whom he was involved in the crimes for which he was convicted in this country or their associates. There is a proper consideration of state protection and internal relocation in paragraphs 87 to 89 and the question of whether the claimant would still be at risk after the length of time he has spent outside Jamaica in paragraph 84.
12. Paragraph 4 of the grounds does not identify the paragraph in the determination as a result of which it is argued that the panel made an incorrect assessment or gave too much weight to the fact that the claimant "has a restricted use of his hands". On the contrary, in paragraph 85 the panel concluded that the claimant would have family support and assistance on return to Jamaica that he had previously been employed in Jamaica and had regular employment in the UK and had gained educational qualifications, skills and experience that he could use in finding employment on return.
13. Paragraph 4 of the grounds incorrectly states that the panel allowed the appeal on Article 8 grounds. The appeal was allowed on asylum grounds only; although the panel gave an indication that had it been necessary to do so the appeal would also have been allowed on Article 8 human rights grounds. There has been a proper consideration of the public interest and the panel referred to the relevant case law in paragraph 95. The grounds amount to no more than disagreement with conclusions properly reached by the panel.
14. I find that the panel did not err in law and I uphold the determination.
Signed Date 11 December 2013
Upper Tribunal Judge Moulden