Risk of re-offending and denial of guilt: Court of Appeal dissects OASys Report, concludes EEA family member with permanent residence can be deported

The outcome in Kamki v The Secretary of State for the Home Department [2017] EWCA Civ 1715 (31 October 2017) emphasises among other  issues, that  it may prove fatal to an appeal  if a  deportee does  not accept responsibility  in relation  to the offences in which he is found guilty and consequently undertakes no  relevant offender courses in prison or other work to address his offending behaviour. Such issues, in  an EEA deportation appeal go to the root of  the matter   as regards  whether the  Secretary  of State or Tribunal  may find  on that basis that the personal conduct of the person concerned represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

Proceedings in Kamki,  however  started off heading  in one legal direction but ended in another.  The  Court of Appeal acknowledged that permission had been granted in the case as it appeared at that stage that the appeal would raise an important point of principle: namely whether for the purposes of the tests in Regulation 21 of the 2006 EEA Regulation, 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. What happened however is  that after the grant of permission, Counsel for the Appellant did  concede that in  applying Regulation 21, it was  legitimate to look both at the likelihood of re-offending occurring and at the seriousness of the consequences.

The appeal therefore  proceeded as a conventional appeal in which  it  was contended on the Appellant’s behalf that the First Tier Tribunal  erred in its approach in other ways, none of which,  as noted by the Court of Appeal,  gave  rise to an important point of principle or practice of relevance to other cases.

What however is  also most relevant  having regards to the  issues actually  considered,  is the instructive manner taken by  the Court of Appeal  in dissecting an OASys  Report to reach the conclusion  that the First Tier Tribunal  had correctly dismissed the appeal  of an  Appellant  who held permanence  residence.

 

Summary Background

The appellant, a citizen of Cameroon, held a permanent residence card, which was issued to him on 19 August 2010  as he was a family member of an EEA national. 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.

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  2006 EEA Regulations. The appellant appealed against this decision to the First Tier Tribunal( the FTT). The FTT dismissed his appeal in a decision of  5 November 2014.  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 then appealed  from the Upper Tribunal directly  to  the Court of Appeal.

Persistent denials of guilt by the appellant- subsequently counting against him in his appeal:

The following was noted by the Court of Appeal:

  • “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…..”

  • “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……”

  • “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

 

The Trial Judge’s Sentencing Remarks on risk of re-offending:

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.

The OASys Report on risk of re-offending and risk of harm:

The National Offender Management Service carried out a risk assessment in relation to the appellant  which was set out in 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.

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.”

Applicable law:

It was noted that it was common ground that it  was the 2006 version of the EEA Regulations which was  applicable in the case. Regulation 21 provided the relevant legal framework governing the Secretary of State’s powers to deport the appellant.

As the appellant had a permanent right of residence under the EEA Regulations, the result was  that the tests in Regulation 21(3) and in Regulation 21(5) had to be satisfied in his case if the Secretary of State’s deportation decision was to  be upheld. 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 Secretary of State’s approach to the OASys Report:

The Secretary of State ‘s decision of 22 July 2014 to make a deportation order referred to the appellant’s offending, the judge’s sentencing remarks and the OASys report. The decision letter noted that the OASys report assessed there to be a low probability of re-offending by the appellant  but made an overall assessment that there was “a high risk of harm to young females”.  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  of the 2006  EEA Regulations were satisfied so that she was entitled to deport him.

Court of Appeal’s considerations and conclusions:

The Court of Appeal considered and concluded as follows:

  • It was considered that the decision of the FTT was the operative decision in the case.

  • The Court observed that it was argued on the appellant’s behalf that the FTT failed properly to apply the test in regulation 21(3); this provides that 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. The Court of Appeal considered that this ground of appeal was not made out. The Court held that 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). Regulation 21(5) provides that, “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 Court of Appeal considered that the FTT gave proper and sufficient reasons to justify its conclusion that both these provisions were satisfied.

  • It was considered that the FTT Judge did not lose sight of regulation 21(3). The FTT addressed both provisions in the analytical part of its reasoning and recognised that the Secretary of State had to satisfy it that the correct criteria in the Regulations were met in relation to the appellant.

  • 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.

  • The FTT stated its view that the Secretary of State’s decision to deport was properly made on the grounds of public policy. This set 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.

  • The Court stated that the FTT considered regulation 21(5) as a distinct point. 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). The FTT Judge concluded that “… [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.”

  • The Court of Appeal viewed that the FTT stated in its conclusion that the Secretary of State ‘s decision to deport the appellant had been made ‘on serious grounds of public policy or public security'” – a direct quotation from regulation 21(3). The FTT did indeed focus upon each of regulation 21(3) and regulation 21(5) as distinct tests and also stated in tis separate conclusion that regulation 21(5) had been satisfied.

  • The analysis of the FTT’s decision showed that the appellant’s submission under the first ground of appeal was 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. It could not be said that the FTT had reached an irrational or unlawful conclusion in relation to regulation 21(3). The FTT 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.

  • The Court of Appeal noted that the next ground of appeal on the appellant’s behalf was that the FTT misunderstood the meaning and effect of the OASys report and failed to identify cogent reasons for departing from the risk assessment in that report. It was contended that the offending part of the FTT’s reasoning related to the following: “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.” It was submitted that the FTT became muddled and incorrectly understood the OASys report to be saying that the probability of offending generally was low but the probability of offending against vulnerable young females was high. It was argued that this was incoherent and overstated the probability of the appellant re-offending against young females.

  • In the Court of Appeal’s judgement, it was considered that this criticism of the FTT’s decision was not justified. In the context of analysing the OASys report the meaning of the FTT was 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 was 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 used different language to reflect the two different senses of “risk”; it was not plausible to read the decision in an incoherent way rather than so that it makes coherent sense; and reading it in this way corresponded with what the OASys report itself said, as the FTT judge had himself set out in his decision. Such a combined approach to evaluation of risk under Regulation 21 is legitimate.

  • It was further submitted on the appellant’s behalf that the FTT improperly paid no regard to the appellant’s good character and conduct before and after the offence. The Court of Appeal considered that this criticism could not 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 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.

  • The appellant’s inability to undertake sex offending courses 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.

  • As regards the programme to manage the risk posed by the appellant that was planned in the event of the appellant’s release, the Court of Appeal stated that was again addressed explicitly in the OASys report and was taken into account in the risk analysis there, which the FTT adopted.

  • As regards the argument that the FTT improperly sanctioned the appellant’s deportation as further punishment for his offence, the Court of Appeal stated that it was 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.

  • The appellant’s appeal was dismissed.

Conclusion

A combination  of factors counted against the Appellant, such as:

  • The seriousness of his offences;

  • The failure of the appellant in accepting his guilt and acknowledging responsibility for his offences;

  • As he maintained his innocence, he did not address his offending behaviour and undertook no sex offender courses in prison or other work.

The seeds of failure  in this  appeal appear to have  been planted well before  the Appellant’s case was heard by the Court of Appeal. By the time his appeal was heard, several years after his conviction and  imprisonment, it was too late to counter the  issues weighing heavily against his case.

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