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

 

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: DA/00238/2019 (V)

 

 

THE IMMIGRATION ACTS

 

 

Heard at Field House via Microsoft Teams	Decision & Reasons Promulgated
On 28 July 2021	On 01 October 2021

 

Before

 

UPPER TRIBUNAL JUDGE O'CALLAGHAN

 

 

Between

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and

 

MAME YOUSSOU DIAME

(ANONYMITY DIRECTION NOT MADE)

Respondent

 

 

Representation :

For the Appellant: Mr. T Lindsay, Senior Presenting Officer

For the Respondent: Mr. N Garrod, Counsel, instructed by Gordon and Thompson Solicitors

 

 

DECISION AND REASONS

Introduction

1.              The appellant in this matter is referred to as the 'Secretary of State' in the body of this decision, the respondent as the 'claimant'.

2.              The Secretary of State appeals against a decision of Judge of the First-tier Tribunal Burnett ('the Judge') who allowed the claimant's appeal against a decision by the Secretary of State to deport him from the United Kingdom under the Immigration (European Economic Area) Regulations 2016 ('the 2016 Regulations'). The decision of the Judge was sent to the parties on 17 March 2021.

3.              Judge of the First-tier Tribunal Chohan granted the Secretary of State permission to appeal by a decision dated 26 March 2021.

Remote hearing

4.              The hearing before me was a Microsoft Teams hearing held during the Covid-19 pandemic. I was present in a hearing room at Field House. The hearing room and the building were open to the public. The hearing and its start time were listed in the cause list. I was addressed by the representatives in the same way as if we were together in the hearing room. I am satisfied: that this constituted a hearing in open court; that the open justice principle has been secured; that no party has been prejudiced; and that, insofar as there has been any restriction on a right or interest, it is justified as necessary and proportionate.

Anonymity

5.              The First-tier Tribunal did not issue an anonymity order and neither party sought one before me.

6.              I note the recent observation of Elisabeth Laing LJ in Secretary of State for the Home Department v. Starkey [2021] EWCA Civ 421, at [97]-[98], made in the context of deportation proceedings, that defendants in criminal proceedings are usually not anonymised. Both the First-tier Tribunal and this Tribunal are to be mindful of such fact. I am satisfied that the claimant in this matter has already been subject to the open justice principle in respect of his criminal convictions, which are a matter of public record and so considered to be known by the local community.

7.              I find that the common law right permitting the public to know about tribunal proceedings in this matter, a right further protected by article 10 ECHR, outweighs the claimant's rights under article 8 ECHR. I therefore do not make an anonymity order in this matter.

Background

8.              The claimant is a national of Senegal and is aged 40. He informed the author of the OASys assessment filed in these proceedings that he emigrated to France with his mother in 1995, when aged 14.

9.              He further informed the author of the OASys assessment that he came to this country in 2005 'for a change' and to learn English. However, the Secretary of State confirms that in December 2005 the claimant was returned to this country by the Dutch authorities having sought to enter the Netherlands using a false French passport. He informed the British authorities that he was a French national whose French wife and son resided in France. He was refused leave to enter this country but released on temporary admission. He subsequently absconded. He was encountered in March 2006 following police attending a reported incident. He was detained and the United Kingdom authorities sought to affect his removal to France. However, the French authorities advised that they had concluded the claimant was not a French national. Having been granted temporary admission, the claimant again absconded.

10.          He was encountered by the police in May 2007 in respect of a drug offence. He informed the Secretary of State that he had been born in France to illegal migrants and was not yet registered as a French national. He stated that he was divorced/ and separated from his French wife/partner and was now residing with his Polish partner who was pregnant with their child. He was again released on temporary admission.

11.          In 2007 the Senegalese Embassy in London provided the Secretary of State with details as to the claimant's true identity and agreed to issue an emergency travel document. The claimant was removed to Senegal in December 2007. He used his own Senegalese passport rather than the emergency travel document provided to him.

12.          In March 2008 the claimant married his Polish wife and entered the United Kingdom in January 2010 having been issued with an EEA Family Permit. He was issued with a residence card as a non-EEA Family Member on 25 June 2010.

13.          The claimant has two children with his wife. They were born in 2007 and 2013.

14.          The claimant's wife details by her witness statement dated 3 November 2020 that the couple separated in September 2015. This was several months prior to the claimant's second arrest.

Index offence

15.          On 11 November 2016 the claimant was sentenced at Snaresbrook Crown Court to a total of 6 years imprisonment in relation to:

                                  i.             Being concerned in offer to supply a controlled class B drug: 5 years imprisonment.

                               ii.             Produced a controlled class B drug (45 bottles of tetrahydrocannabinol): 1 year imprisonment, consecutive.

                             iii.             Possessing a controlled class B drug (cannabis/cannabis resin): 3 months imprisonment, concurrent.

                             iv.             Possessing a controlled class B drug (cannabis/cannabis resin): 1 month imprisonment, concurrent.

16.          This is a matter where the detailed sentencing remarks of HHJ Radford are properly to be noted. He observed, inter alia: [1]

'In relation to 4 September 2015, the defendant was found to be in a motorcar which was stopped routinely by the police, it was a hire car, in the boot of the car was found a small block of cannabis resin and large 45 vials of liquid marked as cannabis oil. The defendant was indeed arrested ...

He claimed it was cannabis flavoured oil he bought on the Internet however forensic analysis revealed it was 521 millilitres of cannabis split into 45 vials, that is count one on the consolidated indictment ...

... The defendant has to be sentenced for simple possession of 118 g of cannabis resin which were found on the same occasion.

The defendant was released on bail waiting to be dealt with for these matters of 4 September when the further offence ... came to light ... being concerned in supplying a controlled drug of class B to another or others.

... He was again stopped by the police driving a car [4 May 2016], this time a Mercedes vehicle, he was the only occupant, the car was searched and a black rucksack was found inside of which was 75 plastic bags containing cannabis resin, a total weight of 98.4 grams, there were digital scales, a business card for a trading company with the defendant's initials, MYD Trading Limited, a storage device and a laptop.

Further searches were then authorised following his arrest in relation to those matters and the defendant's business address in Blackheath, SE10, was searched. That was the address for the business that the defendant was operating, the extent to which it was a cover for the supply of cannabis products has been a central feature of the evidence that I have heard stop undoubtedly, he had those business premises and the key found in the defendant on his arrest fitted door to them.

Inside the office, a number of items were found, a grey safe with 87 packages of cannabis of various sizes and weights; total weight almost half - about half a kilo, 506 grams, electronic scales, postal receipts. Also found were a heat sealer, a label printer, postal receipts, address labels, computers, a shoebox containing empty foil packages, postal receipts and registered delivery stickers. There were empty oil packages from the middle and top drawer of the desk, a quantity of postal correspondence, worldwide postal and a cannabis block packaging from the desk drawer.

A further search was then conducted of a container which was at an address in Poplar, the container being registered to the defendant. At that location and in the container was found a dark suitcase which contained 50 kilos of cannabis resin and documentation which connected the defendant with the container which he rented. Cannabis from the container weighed 50.24 kilograms, had a street value of £76,000 odd.

The computers were then sent to analysis ... I have heard evidence about that and about the apparent use of email addresses which the Crown have submitted, it reinforced the contention upon which this case has been opened, that the defendant was operating a cannabis supply business using the dark web. He having a TOR, The Onion Route, web browser, installed in the Mac desktop computer which does not therefore enable the Internet browsing history to be recorded and makes it difficult for others to trace Internet activity.

And the laptop from the rucksack was also analysed. There were found 21 pictures of drugs, many in front of labels, a number of pictures contained a label saying Frasen, F-R-A-S-E-N, and there were other references to the same name including the last 50 orders seemingly for drugs which appear to be a record that was being kept on the laptop. It seems that the business that was being conducted involve drugs being sent by post having been traded using that word as a convenient summary over the computer links available and payment in Bitcoins being the currency of choice.

The defendant was interviewed about the matters concerning 4 May 2016 ... He produced a prepared statement after a private consultation with his solicitors. He did not give the explanation he has given me now in evidence, denied any connection with drug dealing indicating that the items such as the heat sealers and envelopes were strictly for his legitimate business and not for drug dealing activities as alleged.

Subsequently, the proceedings continued against him and in the Crown Court there was a basis of plea relating to the drugs that were found in the container, that of 25 July of this year which he indicated he had pleaded guilty on the basis that he was in debt to another person and had been asked to store the drugs for him and he had been lent £4,200 in relation to gambling and had to return £6000. He was aware he said that drugs were in the bag. He made no other assertions as to the wider picture that the exhibits and inquiries had revealed.

However, subsequently a further basis of plea on 11 October this year was produced which essentially mirrors that which subsequently has been his evidence before me. Matters came before ... HHJ Dawson and the last occasion the matter was in court [was] 17 October. by this stage the defendant had pleaded guilty at the PTPH in relation to count 1. The prosecution on 17 July accepted simple possession in relation to the matter that was count to on the indictment and for that reason count 4 was added to reflect simple possession of the drugs found, cannabis resin not the cannabis oil, and count 2 therefore was not proceeded with a verdict of not guilty entered.

That left the question which came before the trial judge on 17 October of count 3 and the basis of plea with a further basis that had been submitted then to be considered by the court and Judge Dawson having heard the Crown's submissions and the defence submissions required that to be considered at a hearing which is what has happened today before me.

Essentially, the issue which relates to sentencing on count 3 is whether or not the role played by the defendant as he now explains it is to be regarded as one which I should surely reject or if I accept it is the conclusion to be arrived at that the defendant's role is limited to that which indeed he now accepts a significant role in relation to the cannabis and accoutrements found on 4 May of this year.

Essentially, without repeating all of the defendant's evidence or the other evidence that I have received and considered, the defendant has told me and this is the basis of the way in which I'm invited to sentence him, that he was drawn into that which he did, assisting the true operator of the cannabis supply business using his computer skills, a person known in his basis of plea as Umar (?) but since been identified by name on the day of the trial are referred to in a statement subsequent made by the officer in the case.

He said he being a user of cannabis and become friendly with this person who had shared cultural and linguistic connections acted to assist, he having a gambling habit the man assisted him by lending him a limited amount of money and to enable him to assist him in what was his business. He has also told me that so far as the cannabis is concerned that was found, he was acting as a custodian although he accepted in evidence that he did play a role in relation to some of the cannabis by cutting it in preparation for what he acknowledged must have been the onward supply for profit that he claims not profit which he was involved in procuring or sharing and he had no knowledge he said that sales are being made over the Internet and that the photographs he helped to assist being made for the purposes of the labels; he did not have any part to play in the business which that involved and his financial involvement was very limited owing only to his indebtedness through gambling.

He reiterated that a business he was operating was not entirely legitimate was essentially the means by which he and his family have been earning their means of livelihood, his wife also acting as a care assistant I should add and certainly he rejected in his evidence that he was an operator of this cannabis supply business for profit and rejected suggestions to that effect.

I have considered all the sources of evidence so far as this issue is concerned. I note that the explanation given by the defendant was one which was belated as far as this is concerned, certainly was not a next relation given in interview with the police or by means of the prepared statement and it was not one properly given in any way in the original basis of plea. Nevertheless of course, I have two have considered the defendant's evidence on oath.

I have found it inconceivable that he could have had the role even that he claims he had on the basis of remuneration and trust of such a relatively peripheral basis which he asserts. My judgment: someone who had the quantity of drugs in his possession and was preparing to have them in his possession even whilst on bail as I have recounted must have been someone who had a very real financial interest in the business which was being conducted.

I do not accept taking the totality of the evidence that he was merely there is some computer equipped specialist to assist a one-person business and I cannot believe he would have been entrusted with the quantity of drugs and all the accoutrements which I have listed if his role was as limited as he has claimed and the evidence of the analysis of the computers and the iPhone 6 which I heard about in which I accept the evidence from the witness who gave evidence for the prosecution ... do not in my judgment in any way support the credibility of the account the defendant has given.'

17.          HHJ Radford confirmed:

'I am quite satisfied that this is a case where he was playing a leading role. May not have been the only person involved of course in the obtaining of the cannabis in such a business change, there are usually others who play different roles but I am quite satisfied looking at the ways in which someone can play a role in which such supply endeavours that he was using his business as a cover for the supply of cannabis resin. In the expectation of substantial financial gain, I reject the suggestion this was all just a question of being able to borrow money to be repaid in the way the defendant has claimed.

I also find he must have had substantial links to the source of the drugs found in such quantities in places where he was in control and I cannot believe that he would have simply allowed his computers or phone to be casually used by someone, such a business in the way he suggests or that such a person would have trusted him with all that was found if his roles as limited as he says.

So, the conclusion I have reached is that I am sure that this was his business in terms of the cannabis supplying that the physical evidence and the analysis of the material has led me to conclude is the case and therefore I approach sentence on that premise ...'

18.          The claimant's account of events was rejected by HHJ Radford, and he was sentenced on the basis of having held a leading role in the selling and distribution of cannabis and other illegal drugs using the dark web. He used his business as a cover for his illegal activity.

Refusal of permanent residence

19.          Prior to his initial arrest the claimant applied for permanent residence on 9 July 2015. This application was refused by the Secretary of State on 5 September 2017 and the claimant's appeal was dismissed in June 2018 by Judge of the First-tier Bartlett (EA/07586/2017). Judge Bartlett determined, inter alia, that the claimant posed a sufficiently serious threat such that the Secretary of State's decision to refuse to issue him with a permanent residence card was proportionate.

Deportation decision

20.          The Secretary of State wrote to the claimant on 22 July 2019 and informed him that she intended to make a deportation order against him on grounds of public policy in accordance with regulation 23(6)(b) and regulation 27 of the 2016 Regulations. The claimant responded by letter dated 19 August 2019 setting out reasons as to why he should not be deported.

21.          By means of a decision dated 18 October 2019 the Secretary of State confirmed her decision to make a deportation order.

The Decision of the First-tier Tribunal

22.          The hearing was held remotely at Taylor House on 14 December 2020. Both parties were represented. Also in attendance was the claimant's wife. It was accepted that at the date of hearing they were no longer in a subsisting relationship but were not divorced.

23.          The Judge concluded, at [39] of his decision, that the claimant could not establish that he was entitled to the top tier of protection from removal under the 2016 Regulations. However, he was entitled to the second level of protection having resided in this country for over five years prior to his imprisonment: regulation 27(3) of the 2016 Regulations.

24.          The Judge considered the issue of offending behaviour and found at [54]-[55] of his decision:

'54. In my judgment there is some risk that the appellant might offend again but this is small. The appellant has been convicted of running a drugs supply business under the cover of another business. There were substantial amounts involved and the appellant utilised the dark web.

55. The question I need to answer is whether the personal conduct of the appellant represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. It must meet the serious grounds test. In all the circumstances, I consider that the threshold set out in regulations has not been demonstrated by the respondent and I conclude that the appellant no longer represents a genuine, present and sufficiently serious threat to meet the threshold required. This finding in itself is sufficient to allow the appeal.'

25.          The Judge proceeded to consider proportionality in the alternative. At [61]-[62] the Judge observed:

'61. The appellant has two children in the UK. The children were at a very young age when the appellant committed these offences. The appellant has been absent from their day to day care for over 3 years whilst he was incarcerated. The appellant now plays a role in their lives. The youngest has [a medical condition]. He has educational needs and now attends a special school to assist him. The appellant has not been to the school and seems to be very little involved in that aspect of the child's life. However, he spends weekends with the children and time in school holidays.

62. There was no evidence before me that the appellant's children would be unable to live in Poland or to go to Poland or visit the appellant in another country. However, I consider it unlikely that the children's mother would live in Poland with the children and so there would be a significant interference with the current arrangements in respect of the children. It would severely limit the number of times the appellant could spend 'face-to-face' time with the children if he is deported. The limited daily contact could have a greater effect upon the appellant's youngest child who has [a medical condition]. However, there was no evidence to demonstrate that it would not be possible for some time to be spent with the children each year in another country.'

26.          The Judge concluded as to the assessment of proportionality:

'67. I have some information that the appellant has engaged with rehabilitation in the sense of undertaking courses and working with his probation officer in the UK. In the OASys report it states that the appellant is motivated to address his offending behaviour, and I consider that there is a reasonable prospect of rehabilitation within the UK.

68. I have had particular regard to the comments in paragraph 35 of Essa [ Essa (EEA: Rehabilitation/integration) [2013] UKUT 316) and whether there are reasonable prospects of rehabilitation and whether the appellant is a present threat and whether he is likely to remain so for an indefinite period in the future. It was stated in paragraph 35 of Essa that appellants who act with impulses to commit sexual or violent offences and the like, may well fall into the category where little weight is to be given to rehabilitation as a factor. However, I give limited weight in my assessment to the factor of rehabilitation.

69. I have carefully balanced all the factors in the case and the issues raised in respect of the proportionality of the decision. I find that the decision of the respondent is a disproportionate response on the information before me. I hence allow the appeal of the appellant under the EEA Regulations.'

Grounds of Appeal

27.          The Secretary of State's grounds of appeal can properly be identified as follows:

                                  i.             The Judge erred in his assessment as to the seriousness of risk.

                               ii.              The Judge erred in his assessment as to proportionality.

28.          In granting permission to appeal Judge Chohan reasoned, inter alia:

'There is no doubt that the appellant had been convicted of a serious criminal offence, which is reflected in the six years' prison sentence. In an otherwise well-written decision, I do find the judge may not have placed sufficient weight [on] the serious nature of the offence and the sentence, which then clearly had an impact on the proportionality assessment. This must be explored further.'

29.          The claimant filed and served a very helpful rule 24 response, authored by Mr. Garrod and dated 19 April 2021. This document has been considered with care and has been taken into account.

Decision on Error of Law

30.          Mr. Lindsay accepted on behalf of the respondent that save for the two issues identified by means of the grounds of appeal the Judge undertook a careful determination of the appeal before him. He helpfully focused his submissions on what he considered to be salient issues.

31.          In respect of the first ground of challenge Mr. Lindsay relied upon §§3 and 4 of the Secretary of State's grounds of appeal:

'3. It is submitted that the FTTJ himself finds that the index offence was 'very serious indeed', however he then goes onto to find that the respondent has failed to demonstrate that the appellant is a genuine, present and sufficient threat to public policy and security. However, at [54] he has found ' there is some risk that the appellant might offend again but this is small. The appellant has been convicted of running a drugs supply business under the cover of another business. There were substantial amounts involved and the appellant utilised the dark web.'

4. It is submitted that in making this finding the judge has failed to consider the seriousness of the consequences of re-offending in line with Kamki [2017] EWCA Civ 1715. It is submitted that the appellant's offending history is in itself strongly indicative for a propensity to re-offend and that the potential consequences of re-offending are serious.'

32.          A tribunal must be satisfied that an appellant is a 'present' threat to the interests of society, and so their past criminal record is not in itself sufficient: Bulale v Secretary of State for the Home Department [2009] QB 536, at [16]

33.          §4 of the grounds identifies that in every case concerning the deportation of a person exercising EU Treaty rights, or a family member of such a person, the personal conduct of the person involved, and in particular the indications of future risk of threats to public policy, must be assessed. Therefore, the general rule is that it is only when there is a risk of re-offending that the power to expel arises: Secretary of State for the Home Department v Dumliauskas [2015] EWCA Civ 145, [2015] Imm AR 773, at [40].

34.          The Court of Appeal confirmed in Kamki v. Secretary of State for the Home Department [2017] EWCA Civ 1715, at [17], that when considering the tests that are now established at regulation 27 of the 2016 Regulations, it is legitimate for consideration to be given to both the likelihood of re-offending occurring and the seriousness of the consequences if it does.

35.          Mr. Lindsay contended that the Judge erred in his self-direction in the second sentence of [47]:

'47. I take into account the seriousness of the appellant's offences but that in itself is not sufficient to meet the test. The focus must be upon the risks posed by the appellant ...' [Emphasis added].

36.          Evidence as to the impact of the erroneous self-direction is identified by Mr. Lindsay through the Judge's express consideration of the risk of re-offending at [50] and [54] and protective factors at [51]. However, there was no accompanying consideration as to the seriousness of the consequences if the claimant reoffended despite the Judge identifying at [54] that the claimant was convicted of running a drugs supply business under the cover of another business, that 'substantial amounts' were involved and that the claimant utilised the dark web

37.          The second sentence of [47] is opaque in nature. Reference to 'risks' in the plural is suggestive that the Judge could have had in mind the linked considerations identified in Kamki. However, the Judge failed to expressly address one of the legitimate considerations that fell to be assessed. I conclude that if the Judge had correctly self-directed himself, and it can properly be said that he could have been clearer in his self-direction, his failure to consider the seriousness of consequences following re-offending establishes that he did not act upon his self-direction. Whilst the Judge could potentially have reached the same conclusion upon addressing this question, it is simply speculative to conclude that he would have. I am therefore satisfied that such failure is a material error of law.

38.          I turn to the Judge's consideration of the OASys report, at [50], which was addressed by the representatives before me:

'50. I have an OASys report dated in the header as 11 January 2019, but the assessment took place in September 2018. The report assesses the appellant as at a low risk of re-offending. I note that the appellant's sentence expiry date is 5 May 2022. The appellant was aged 35 at date of conviction. I note in section 2 it states that the details of the offence of May 2016 were not known by the author of the assessment. It states that the appellant was financially stable at the time of the offences. In the report it records that the appellant stated that he committed the offences out of greed. I should note that the appellant denied he was motivated by greed at the hearing. The appellant is recorded as expressing remorse for his behaviour. The appellant was tested for drugs whilst in prison and it states that the results were negative. The report gives the impression that the appellant was still in a relationship with his ex-partner and this relationship was stable. The report states that there is a risk that the appellant will turn to cannabis use and therefore criminal activity, but the appellant was motivated at present to address his offending behaviour. I note also that the author of the assessment stated that the appellant's family were a huge protective factor, and should the relationship break down the appellant may lose his motivation to desist from crime. Other factors were the ability of the appellant to obtain employment and the appellant's contact with criminal elements. The assessments of risk of re-offending were low.'

39.          The OASys assessment is identified as a 'Layer 3' (or full) assessment [2] which is designed to be used in respect of higher risk offenders. As I observed to Mr. Garrod who sought to rely upon the assessment, the conclusion reached by an assessor is not one that must simply be accepted by a judge without any question. In Vasconcelos (risk - rehabilitation) [2013] UKUT 378 (IAC) it was confirmed that an OASys assessment may well be relevant to an assessment of risk, but a judge is not bound by such assessment if on the evidence overall a different conclusion is reached.

40.          There are several concerns with the OASys assessment in this matter. As noted by the Judge at [50] of his decision the author appeared not to be aware as to the circumstances of the conviction that led to the imposition of the 5-year custodial sentence. [3] She therefore appears to have been unaware of the judicial finding that the claimant's business was being used as a cover for the selling of prohibited drugs on the dark web. Such history is not factored into the author's assessment of the claimant's future employment as a web-designer, or other related work involving the internet, which she considered to be a protective factor. [4] Of further concern the author expresses her understanding that there were 'no direct victims as the drugs did not reach the public. Had the drugs reached the public then anyone could have been a victim.' [5] HHJ Radford expressly found that the claimant played a leading role in the supply of cannabis resin. The author proceeds on the basis that prior to his arrest and imprisonment the claimant's (legitimate) business was successful and earning him £200,000. [6] A more critical assessment may have been undertaken if the author had before her the sentencing remarks of HHJ Radford. The author also appears unaware that the claimant provided the same or similar reasons for his actions as rejected by HHJ Radford. [7]

41.          The Judge undertook a wider assessment as to the risk of re-offending, not simply relying upon the OASys assessment, but it clearly apparent that his uncritical consideration of the report is deeply interwoven into his assessment. In such circumstances, I am satisfied that the Judge materially erred in law as to his assessment of whether the claimant represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

42.          The Judge considered the issue of proportionality in the alternative: Regulation 27(5)(a) of the 2016 Regulations. It is this element of the Judge's decision that is subject to the second ground of appeal.

43.          Proportionality as a general principle of EU law involves a consideration of two questions: first, whether the measure in question is suitable or appropriate to achieve the objective pursued; and secondly, whether the measure is necessary to achieve that objective, or whether it could be attained by a less onerous method: R. (Lumsdon and others) v Legal Services Board [2015] UKSC 41, [2016] AC 697, at [33].

44.          Mr. Lindsay addressed [51] of the Judge's decision:

'51 The appellant's relationship has broken down with his wife and he has a new partner. However, I accept that he is motivated to see his children and spends periods of time with them in school holidays. I conclude that this protective factor is still a relevant one in assessing whether the appellant is likely to re-offend. There was no information to suggest that the appellant does not run a legitimate web design business now and so have an income.'

45.          Mr. Lindsay observed that whilst the burden of proof is placed upon the Secretary of State in this appeal, it remains the position that he who asserts must prove. Therefore, if the claimant asserts a protective factor, it is for him to prove it. In this matter there was no reliable evidence as to the claimant now running a legitimate business providing an income, and I am satisfied that the Judge erred in placing a burden of disproof upon the Secretary of State.

46.          On an initial consideration, the last sentence of §51 could potentially be read as a neutral observation. However, upon a more detailed assessment I am satisfied that it cannot properly be considered to be neutral. It forms part of a paragraph where a protective factor is identified in favour of the claimant, and it can only reasonably be considered to be linked to the preceding favourable assessment as to it being unlikely that the claimant would re-offend. To consider it as being separate from the rest of the paragraph would make redundant its purpose and meaning.

47.          I am therefore satisfied that Mr. Lindsay is correct as to the Judge having reversed the standard of proof in respect of this matter which concerned a positive protective assessment in favour of the claimant. Such error proceeded to adversely infect the proportionality assessment and is therefore is a material of law.

48.          In the circumstances, the decision of the Judge is properly to be set aside.

Further hearing

49.          As to remaking the decision given the fundamental nature of the error of law that has been identified I accept the submission made by Mr. Garrod that the matter should be remitted to the First-tier Tribunal. Mr. Lindsay was neutral on the matter. The nature or extent of any judicial fact finding which is necessary in order for the decision in the appeal to be re-made is such that, having regard to the overriding objective, it is appropriate to remit the case to the First-tier Tribunal.

Postscript

50.          I observe that it will be open to a judge upon considering the evidence in this matter to decide whether the claimant is or is not a genuine, present and sufficient threat to public policy and security. However, the concerns identifiable within the OASys assessment dated 11 January 2019 should properly be addressed in any assessment undertaken.

51.          As observed above, careful consideration should be given to the OASys assessment relied upon by the claimant, not only in respect of the risk assessment itself but also with regard to the information provided by the claimant to the assessment's author. I observe his assertion that he committed the offences because a friend asked him as a favour to sell drugs. Not only does this not reflect the judicial finding made prior to his sentencing but it not consistent with his evidence before HHJ Radford where he detailed that he primarily acted as a custodian and on occasion engaged in cutting cannabis in preparation for onward supply. I further observe that he informed the author of the assessment that at the time of his arrest he was a company director of an import/export business, a web designer and was earning in the region of £200,000 per annum. He did not inform the author as to the conclusion reached by HHJ Radford that the business was a cover for the sale of prohibited drugs.

52.          I further observe as to his relationship with his wife that he declared their relationship to be 'stronger than ever' though his wife 'may have felt unhappy when he first came into custody' as she 'may have felt jealous as she was not with him'. He further detailed that his wife moved out of the family home after his imprisonment in 2016. He stated that he intended to move into the home of his wife when he left prison. I observe that no reference was made to the claimant's wife having left him in September 2015 along with the children.

53.          There may well be cogent explanations as to the information provided to the assessment's author in 2018, [8] but the claimant can properly expect to be asked to address these potential inconsistencies at the remitted hearing. Whether such concerns ultimately impact on the questions to be considered will be a matter for the First-tier Tribunal.

54.          I take this opportunity to thank Mr. Garrod and Mr. Lindsay for their erudite and helpful submissions.

 

Notice of decision

55.          The decision of the First-tier Tribunal involved the making of an error on a point of law and I set aside the Judge's decision promulgated on 17 March 2021 pursuant to Section 12(2)(a) of the Tribunal, Courts and Enforcement Act 2007.

56.          This matter is remitted to the First-tier Tribunal for a fresh hearing before any Judge other than Judge of the First-tier Tribunal Burnett.

57.          No findings of fact are preserved.

 

Signed: D O'Callaghan

Upper Tribunal Judge O'Callaghan

 

Date: 13 September 2021