United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-005263
	First-tier Tribunal No: DA/00026/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

 

On 25 ^th of March 2025

 

Before

 

UPPER TRIBUNAL JUDGE HIRST

 

Between

 

Secretary of State for the Home Department

Appellant

and

 

Akshay Parsotam

Respondent

Representation :

For the Appellant: Mr Yetman of counsel, instructed by the Government Legal Department

For the Respondent: Mr Ahmed of counsel, instructed by Jasvir Jutla & Co Solicitors

 

Heard at Field House on 29 January 2025

 

DECISION AND REASONS

 

1.              The Secretary of State ('the Appellant') appeals from the decision of the First-tier Tribunal allowing the Respondent's appeal against the decision to deport him under the Immigration (European Economic Area) Regulations 2016 ('the EEA Regulations').

2.              The issue for the Upper Tribunal in this case is whether the First-tier Tribunal erred in law in making that decision. I have concluded that it did, for the reasons set out below.

Background to the appeal

3.              The Respondent is a citizen of Portugal who arrived in the UK with his family in 2012. On 19 October 2019 he was granted indefinite leave to remain under Appendix EU of the Immigration Rules.

4.              On 3 February 2021 the Respondent was convicted, following a contested trial, of grievous bodily harm with intent and violent disorder, offences committed on 20 June 2020. The facts of the offence were that the Respondent had travelled with a group from Leicester to Wembley armed with weapons and with the intention of inflicting violence, and had beaten the victim with a cricket stump, causing serious injuries. The Respondent was sentenced to a total of seven and a half years' imprisonment.

5.              On 5 March 2024 the Secretary of State served a decision to deport the Respondent under the EEA Regulations.

6.              The Respondent's appeal against that decision came before the First-tier Tribunal on 15 August 2024. The sole issue for the Tribunal was whether the decision to deport the Respondent was contrary to Regulation 36 of the EEA Regulations. It was not in dispute before the First-tier Tribunal that the Respondent had acquired the right of permanent residence prior to his conviction and hence was entitled to enhanced protection from expulsion under Regulation 27(3).

7.              In a determination promulgated on 4 October 2024, the Tribunal allowed the appeal.

8.              The Secretary of State sought permission to appeal on two grounds. Ground 1 asserted that the First-tier Tribunal had failed to give adequate reasons for its findings on material matters, and Ground 2 that the First-tier Tribunal had materially misdirected itself in law. Permission to appeal was granted on both grounds by the First Tier Tribunal on 14 November 2024.

9.              The appeal came before me at an error of law hearing on 29 January 2025 at which I heard submissions from counsel for both parties and reserved my decision, which is given below with reasons. I am grateful to both counsel for their well-structured and helpful written and oral submissions, which I have considered in detail although I have only referred to them briefly below.

Appellant's application under Rule 15(2A)

10.          On 10 January 2025, the Appellant made an application under Rule 15(2A) of the Tribunal Procedure (Upper Tribunal) Rules 2008 to adduce evidence which was not before the First-tier Tribunal, namely a published response to an information request on the ability of Indian-born Portuguese citizens to integrate in Portugal. The Appellant sought to rely on the report at the error of law stage as well as at any rehearing should an error of law be found.

11.          I declined to consider the report at the error of law stage, on the basis that it was not before the First-tier Tribunal and was therefore not material to the question of whether there had been an error of law in the First-tier Tribunal's decision on proportionality.

Discussion and decision

12.          It is a well-established principle that judicial caution and restraint is required when considering whether to set aside a decision of the First-tier Tribunal as a specialist fact-finding tribunal: HA(Iraq) v SSHD [2022] UKSC 22, [2022] 1 WLR 3784 at §72. A first instance determination should not be 'picked over' or subjected to detailed textual analysis. Similarly, when it comes to reasons, the First-tier Tribunal is not required to rehearse every detail or issue; it is required to identify and resolve key conflicts in the evidence and to explain its conclusions clearly and briefly: Budathoki (reasons for decisions) [2014] UKUT 341 (IAC).

13.          The Appellant's case is essentially focused on three aspects of the First-tier Tribunal's decision: (i) the assessment, under Regulation 27(5)(c) of the EEA Regulations, of whether the Respondent posed a 'genuine, present and sufficiently serious threat' affecting a fundamental interest of society; (ii) the First-tier Tribunal's failure to consider the Bouchereau exception; and (iii) the assessment of proportionality.

The decision under challenge

14.          The First-tier Tribunal's decision ran to 71 paragraphs over 21 pages. Much of the decision (paragraphs 11-49) was a detailed summary of the parties' cases, including the Appellant's oral evidence in cross-examination and submissions made on behalf of both parties at the hearing. The First-tier Tribunal's findings of fact and conclusions were set out at paragraphs 50-65 and were somewhat unstructured. The judge summarised in detail the remarks of the sentencing judge (§51-56), noting the aggravating features of the index offence and the impact which it had had on the victim. He noted at §55 that the sentencing judge, when considering ss308-310 of the Sentencing Act 2020, had concluded that the Respondent was not to be considered 'dangerous' for the purposes of the Act. He further noted, at §56, that the sentencing judge had taken into account the Respondent's young age at the time of the index offences, and that he was likely to mature out of the lack of consequential thinking which had led to his involvement in the offending. The First-tier Tribunal judge then went on to consider the factors in Regulation 27(6) at §§57-59, before considering the proportionality of deportation at §§60-65.

Regulation 27(5)(c)

15.          In relation to the assessment of risk under Regulation 27(5)(c), the Appellant asserts, in summary, that the First-tier Tribunal placed "undue weight" on the remarks of the sentencing judge, and in doing so failed to consider or evaluate relevant evidence, including in particular the February 2022 OASys risk assessment.

16.          It is not in dispute that the sentencing remarks were potentially relevant to the assessment of risk. The weight to be placed on them was essentially a matter for the First-tier Tribunal judge. However, the assessment of whether an individual is 'dangerous' for the purposes of ss308-310 Sentencing Act 2020, at the time he is sentenced, is a legally and factually distinct exercise to the assessment of whether that individual poses a "genuine, present and sufficiently serious threat" to one of the fundamental interests of society at the time of his hearing before the First-tier Tribunal. The First-tier Tribunal judge did acknowledge [at §55] that

" Whether or not someone is to be considered dangerous is a reflection to some extent of the likelihood of them committing such an offence again, and to that extent it is of some importance when considering whether the Appellant poses a present threat to one of the serious grounds of public policy."(emphasis added)

However, having noted that the sentencing assessment of dangerousness was " of some importance" to the question before the First-tier Tribunal, the judge did not explain what weight he had given to the sentencing assessment, nor how he had taken it into account and weighed it with the other evidence when evaluating risk for the purposes of Regulation 27(5)(c). I consider that he erred by failing to do so.

17.          That absence of explanation was compounded by the judge's failure to make any reference to the 2022 OASys report in his findings of fact and conclusions. That was significant in light of the very limited evidence before the First-tier Tribunal involving any formal assessment of risk. There was no more up to date OASys report, nor any independent assessment of the Respondent's risk of reoffending; the email from the Respondent's prison Offender Manager (referred to at §62) commented on his custodial behaviour but did not give any opinion as to his risk of reoffending. The OASys report was therefore the only formal assessment of the risk of reoffending and serious harm, and it was also the most recent evidence as to risk. It was incumbent on the judge to address it as part of the evidence before him.

18.          It is right, as Mr Ahmed pointed out for the Respondent, that the judge referred to the OASys report in his summary of the deportation decision letter and the parties' cases, noting the suggestion in the report that if the Respondent were to reoffend there would be a high risk of harm; but he did not refer expressly to the report in his findings and conclusions nor demonstrate that he had considered it in reaching his conclusions. The First-tier Tribunal judge was not of course obliged to accept the OASys assessment, or to treat it as determinative, and the weight to be given to it was a matter for him, but having recorded the parties' cases and evidence he was obliged in his findings to show that he had considered the OASys report and to explain what if any weight he had given to it in reaching his conclusion on risk under Regulation 27(5)(c).

19.          I consider that the judge erred by failing to give adequate reasons for his conclusion that the Respondent did not pose a "genuine, present and sufficiently serious threat" under Regulation 27(5)(c) of the EEA Regulations. Given the centrality of Regulation 27(5)(c) to the appeal, the judge's error was material.

The Bouchereau exception

20.          The Appellant's grounds of appeal asserted that the First-tier Tribunal had erred by failing to consider whether the Bouchereau exception applied; that is, whether the Respondent's deportation was justified by the public's revulsion occasioned by his offending. In his submissions Mr Yetman acknowledged that the point had not been raised before the First-tier Tribunal either in the Appellant's decisions or in oral submissions, but he sought to argue that the First-tier Tribunal was nonetheless required to consider whether the Bouchereau exception applied.

21.          For the Respondent, Mr Ahmed submitted that the Appellant's Bouchereau argument was a new point which had not been taken before the First-tier Tribunal and the Respondent's case was not the exceptional case where Bouchereau would apply.

22.          The Bouchereau exception refers to the principle, first enunciated by the European Court of Justice in R v Bouchereau [1978] ECR 732, that in a rare case, where deep public revulsion has been occasioned by an individual's past offending, the individual may be found to represent a 'genuine, present and sufficiently serious threat' to a fundamental interest of society notwithstanding the absence of a propensity to commit further offences. The scope of the principle was most recently reviewed by the Court of Appeal in Secretary of State v Okafor [2024] EWCA Civ 23.

23.          It is clear from Okafor that the Bouchereau exception will only arise 'exceptionally'; a propensity to reoffend is usually required to establish that there is a "genuine, present and sufficiently serious threat" under the EEA Regulations. It is also clear that the exception only arises where an individual's conduct can be said to engender "deep public revulsion": that will be in cases which are extreme and which involve "the most heinous crimes" such as grave offences of sexual abuse or violence against young children. The burden is on the Secretary of State to satisfy the Tribunal that the Bouchereau exception applies: see Okafor at §2.

24.          In this case, if the Appellant considered that the Respondent's conduct was such that the Bouchereau exception should apply, then it was incumbent on the Appellant to raise the issue before the First-tier Tribunal. In the absence of the issue being raised the First-tier Tribunal was not obliged to consider it and there was no error of law in the Tribunal not doing so.

25.          In any event, bearing in mind the guidance in Okafor I do not consider that this was even arguably a case in which the Bouchereau exception applied. The Respondent's offending was violent and serious, and had a number of aggravating features which were reflected in the lengthy sentence imposed, but it was not an example of a "most heinous crime" nor was it of the extremity required for Bouchereau to apply.

Proportionality

26.          The third part of the Appellant's case was addressed to the First-tier Tribunal's proportionality analysis. Mr Yetman's submission was that the judge had failed to follow the approach set out in AA (Poland) at §66. The key question for the First-tier Tribunal was whether the Respondent's removal was necessary or excessive to achieve the legitimate public interest objectives identified in Schedule 1 to the EEA Regulations, and in particular whether his rehabilitation would be compromised by deportation. He submitted that the Tribunal had not addressed the relevant factors adequately or at all, and its conclusion that deportation would impact the Respondent's rehabilitation was speculative.

27.          The First-tier Tribunal judge considered proportionality at paragraphs 60-65 of the determination. He noted that the Respondent did not speak Portuguese and had never been to Portugal for any purpose other than to renew his passport. He noted the email from the Respondent's Offender Manager, and the large number of references in the Respondent's favour, although he observed that some of the writers did not appear to be aware of the Respondent's "current trouble" (presumably, his offending and deportation proceedings). At paragraph 65 he concluded:

"... I find it would not be proportionate to deport the [Respondent] to Portugal, in line with the case of Essa , because of the difficulties the [Respondent] would encounter in Portugal, where he has never lived and does not speak the language, compared to the chances of him abiding by the instructions of his Offender Manager, and keeping out of further trouble with the support of his family. Additionally the [Respondent] will know that any further offending will not be dealt with under, what are generally considered to be the more generous provisions under the Regulations, but under the less generous Borders Act provisions."

28.          It does not appear to have been in dispute that the Respondent had not lived in Portugal and that he did not speak Portuguese. In those circumstances, I consider that the judge's conclusion that deportation to Portugal would compromise the Respondent's rehabilitation was one which was open to him; the factual matrix in this case was different to that in AA (Poland) where the individual was being returned to a country where he had previously been resident and where he spoke the language. It was of course open to the Secretary of State to put evidence before the First-tier Tribunal as to the availability of rehabilitation in Portugal to someone in the Respondent's position; but she did not do so. In the circumstances and on the evidence I do not consider there was an error in the First-tier Tribunal's reasoning on rehabilitation.

29.          I do however consider that the judge erred in referring to the potential deterrent effect of the application of the automatic deportation provisions in the UK Borders Act 2007, and in treating that as a relevant factor; that was a speculative conclusion which does not appear to have been supported by the evidence, and was not an issue on which the judge appears to have been addressed by the parties. Given my conclusion above that the First-tier Tribunal erred in its approach to Regulation 27(5)(c), however, I do not need to determine whether the error was material.

Disposal

30.          At the close of submissions, I canvassed the parties' views as to disposal should I find an error of law. Mr Yetman submitted that the decision could be remade by the Upper Tribunal and that no further evidence was required. Mr Ahmed submitted that it would be appropriate to remit the appeal to the First-tier Tribunal for a fresh hearing.

31.          In light of my conclusion that the First-tier Tribunal erred in failing to give adequate reasons for its conclusion on the Regulation 27(5)(c) threshold, and the fact that (despite Mr Yetman's submission that no further evidence was required) the Appellant has sought to submit further evidence on the issue of proportionality and rehabilitation, I consider that the appropriate course is to remit the appeal to the First-tier Tribunal for rehearing before a differently constituted Tribunal.

Notice of Decision

 

The decision of the First-tier Tribunal involved the making of an error of law and is set aside.

The appeal is to be remitted to the First-tier Tribunal for a de novo hearing before a different judge.

The appeal is limited to the EEA Regulations only. The finding of the First-tier Tribunal that the Respondent had acquired the right of permanent residence prior to his conviction and hence was entitled to enhanced protection from expulsion under Regulation 27(3) is preserved.

 

 

L Hirst

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

17 March 2025