BF (Portugal) v Secretary of State for the Home Department

This is an appeal against the determination of the Asylum and Immigration Tribunal promulgated on 7 November 2008, allowing the respondent’s appeal against the Secretary of State’s decision on 12 February 2008 to make a deportation order in respect of the respondent.

The respondent is a 31-year-old Portuguese national. He first arrived in the United Kingdom in 1999. On 14 January 2005 he was convicted of battery against his then partner. On 15 September 2006 he was convicted of threatening to kill that same partner and was sentenced to 42 months’ imprisonments. The respondent did not appeal against either conviction or sentence. It was the latter conviction that prompted the Secretary of State to make a deportation order. It was common ground before the tribunal that the respondent was a European citizen who had acquired permanent residency in the United Kingdom and who could not therefore be removed “except on serious grounds of public policy or public security”. In paragraph 5 of its determination the tribunal set out the definition of those public policy and public security grounds contained in regulation 21(5) of the Immigration (EEA) Regulations 2006 (“the Regulations”):

“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.”

The tribunal also set out regulation 21(6) of the Regulations and referred to the decision in MG and VC Ireland 2006 EEA Regulations 2006; conclusive deportation) Ireland [2006] UKAIT 00053, which stressed the introduction of the word “serious” into the regulations. The tribunal had to determine (1) what was the relevant personal conduct of the respondent? Having determined that question, it had to decide (2) whether that conduct represented a genuine, present and sufficiently serious threat and, if so, (3) whether that threat affected one of the fundamental interests of society. It also had to stand back and consider (4) whether the deportation of the respondent would be disproportionate in all the circumstances. There is no lack of parity in the determination as to the tribunal’s conclusions in respect of questions (1) and (4). In paragraph 6 of the determination the tribunal set out the trial judge’s sentencing remarks. In its conclusions in paragraph 21 the tribunal said:

“We do find that the offence is serious. It was treated as such by the trial judge and it followed a previous offence of battery against the same victim. The offender assessment shows that there was a high propensity to re-offend against not only that victim but also another partner.”

So far as proportionality is concerned, the tribunal said at the end of paragraph 22 of its determination:

“We have stood back and reviewed our decision. In all the circumstances we find that the respondent has failed to prove that there are serious grounds of public policy or public security which make his deportation a proportionate decision.”

In paragraph 23 the tribunal dealt with article 8 issues and concluded:

“We find that deporting him to Portugal would be an interference of such gravity as to engage Article 8, and that the decision to remove him is not necessary as being justified by a pressing social need or proportionate to the legitimate aim of immigration control.”

On behalf of the respondent, Mr Southy submitted that these conclusions as to the lack of proportionality are sufficient to justify the tribunal’s decision to allow the appeal. He submitted that the conclusion in respect of proportionality was capable of being a free-standing conclusion in the sense that it could be reached without any prior conclusion as to whether or not there was a genuine, present and sufficiently serious threat. It was only necessary for the tribunal to take account of the various factors that were relevant to risk. It was unnecessary for the tribunal to reach any conclusion as to whether those factors amounted to a present and sufficiently serious threat for the purposes of paragraph (c) in regulation 21(5). I am unable to accept that submission. It seems to me that the tribunal could not sensibly reach any conclusion as to whether deportation would or would not be proportionate, unless and until it had answered questions (2) and (3) and, in particular, had decided whether there was a present serious threat and, if so, the extent of that threat. On behalf of the Secretary of State, Ms Patry-Hoskins submitted that, if and insofar as the tribunal had answered questions (2) and (3), its reasoning was wholly inadequate. Having set out the trial judge’s sentencing remarks, the tribunal set out the whole of the evidence in very considerable narrative detail in paragraphs 7-18 of the determination.

In paragraph 9 of the determination the tribunal referred to the explanatory letter which set out the Secretary of State’s reasons for making the deportation order. This paragraph includes the following passage:

“The letter quotes the judge’s sentencing remarks. He [the respondent] posed a high risk of serious harm to adults and children, especially to his ex-partner and any new partner in a new relationship. He had been assessed subject to the medium level of Multi Agency Public Protection Arrangements MAPPA level 2. The fact that he was appropriate to be monitored under risk management strategies was an indication that he was viewed as posing a continuing risk to the public for a minimum of five years from the date of his sentence with the requirement to report regularly to the police and to abide by other restrictions. The nature of his offence may not be the only contributing factor as it might be influenced by factors such as mental health problems, ongoing issues with drugs and alcohol, accommodation issues and maintained contact with other known offenders. In completing his OASys assessment the offender manager found that he posed a high risk of harm to a known adult and children. Should he find himself in another relationship where he felt jealous as a result of the partner’s interaction with another it was concluded that he would display similar violent outbursts …”

In paragraph 10 of the determination the tribunal said:

“We were given the National Probation Service request for information on an EEA national prisoner which indicated under the assessment of risk of serious harm the level of risk of serious harm was very high, the risk factors being sexual jealousy, power and control in the domestic violence situation, use of violence towards adults and children. Under the detail of who is at risk it is stated ex-partner and any new partner in a new relationship…”

Having said in paragraph 21 of the determination that:

“The offender assessment shows that there was a high propensity to re-offend against not only that victim but also another partner.”

The remainder of that paragraph continues:

“The maximum for the sentence is, according to Archbold, 10 years, and so the sentence of 42 months was a relatively high one and the appellant did not plead guilty and show contrition on that way. He says that he was badly advised. We accept that the appellant has done his best since then to make reparations. He did not contact the victim while he was on bail for the criminal offence nor has he attempted to do so since despite having ongoing contact proceedings in the County Court. We do recognise that there is an ongoing risk to the victim if contact with him was to be denied or breaks down at some time in the future. We accept Miss Evans [the respondent’s current partner] is a credible witness and that he has not attempted to make any kind of threat to her, or indeed to her child. She is aware of children with challenging behaviour, and we do not find her to be gullible. There is no evidence before us which would justify us holding that he was any threat to his own children. He has not got direct contact to those children at the moment, but that the victim has stated to the court that she is not opposed in principle to direct contact resuming at a contact centre in the first instance. We have taken into account the evidence of his character witnesses.”

Thus it appears that the tribunal reached no conclusion as to whether or not the serious threat, which clearly was present at the time of the offence, was still present at the time of the hearing. If it was to be said that it should be inferred that for some reason the tribunal concluded that the serious threat was no longer present, not only is no reason given for such a conclusion but the tribunal reaching such a conclusion would have had to explain why it did not accept the evidence in the various assessments referred to in paragraphs 9 and 10 of the determination, namely that there was a high or very high risk of serious harm and that the risk was not confined to the appellant’s ex-partner but would extend to any new partner in a new relationship. I readily accept Mr Southy’s submission that the tribunal was not bound to accept the evidence in the assessments and was perfectly entitled to look at the other material that was relevant to risk. But, if the tribunal was to reject the conclusions in the assessments, then Mr Southy fairly accepted that it would have had to explain why, and in my judgment there is no such explanation to be found in the determination. Mr Southy submitted that the tribunal looked at all the relevant sources of information in respect of risk. It is certainly true that the tribunal mentioned those matters in the body of the determination, but the difficulty with Mr Southy’s submission is that, notwithstanding the fact that the materials mentioned, the tribunal did not reach any conclusion as to whether or not there was still a threat and, if so, what the extent of that threat was. Clearly, if there was a continuing risk of the appellant inflicting serious harm on any new partner then such a threat was capable of representing:

“…a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.”

In the circumstances of this case it was, in my judgment, incumbent on the tribunal to reach a clear conclusion as to whether or not (and, given the assessments, if not, why not) there was a continuing threat for the purposes of regulation 21(5)(c). The tribunal failed to reach any conclusion in that regard and, for my part, I would therefore allow the Secretary of State’s appeal and remit the matter to the tribunal for redetermination.

I agree.

I also agree. It is not sufficient for a tribunal to recite all the pieces of evidence. That is basically what this tribunal did, without going on to consider the critical question, in this case plainly, is that posed by regulation 21(5)(c). Although it is possible to sit down and recite all the bits of evidence it is not good enough just to do that and then state a bold conclusion.