[2023] UKUT 00164 (IAC)

Ms Ahmed invited us to conclude that the FTT did not provide adequate reasons in support of the conclusion that the appellant displaced the presumption that he is a danger to the community of the UK for the purposes of s.72 of the 2002 Act. Shesubmitted that the reasoning offered was inadequate because the FTT unduly focussed upon the matters in the appellant’s favour without addressing the factors undermining those, such as the appellant’s denial of the index offence, the OASys assessment and the appellant’s escalation in offending up to the index offence.

Whilst this ground could and should have been more clearly pleaded, we are satisfied that the essence of the ground is made out: the FTT gave inadequate reasoning for the conclusion that the appellant was not a danger to the community given the nature and extent of the evidence available. This is not because the FTT did not say enough – the reasoning on this issue is detailed and takes up some two pages. We acknowledge that the FTT must be taken to have been aware of the appellant’s denial of the index offence and the contents of the OASys – these are referred to in terms at [40], [45] and [46] of the decision. The FTT must also be taken to be aware of the appellant’s escalation in offending – this is clear from the sentencing remarks, which have been included in full. The FTT quite properly directed itself to the very serious nature of the appellant’s offending at [45] and [52] and took into account the mental health evidence at [47] and [48], to the effect that the risk of reoffending was low if the appellant continued to remain mentally well.

The FTT listed the reasons for the conclusion that the appellant rebutted the presumption at [53A-F] as follows:

“A.

The expert reports all concur that provided the appellant is achieving and stable on his treatment regime there will be a low risk of offending.

We accept Ms Ahmed’s submission that each of these reasons on their own and when read together, fail to explain how the evidence in support of the respondent’s case has been brought into account. It is a one-sided, exclusively positive view of the evidence on risk, which needed to be explained by reference to all the evidence, in order for the respondent to understand why she lost on this issue. Contrary to [A] above, Mr Gregory’s report is not so unequivocal. Rather, Mr Gregory predicts a low chance of reoffending if the appellant remains mentally well and continues to be intensely supported. Mr Gregory makes it clear that the last two incidents requiring police intervention subsequent to the index offence occurred within the context of the appellant being acutely unwell, notwithstanding his compliance with the support and treatment available to him. The OASys report also made a clear link between a decline in the appellant’s mental health and an increased risk of offending (pages 23/62 and 45/62). The low-risk predictor in the OASys must be approached with that caveat in mind, and should not be viewed in isolation from the remainder of the rounded assessment within the report. As Ms Ahmed submitted, MA (Pakistan) v SSHD [2014] EWCA Civ 163 at [18-20] provides a reminder of the caution that must be exercised when approaching OASys risk scores. In this context we note the low risk was still assessed as including probabilities of proven offending ranging between 22-49%. It is also unclear whether the author of the OASys had the full ambit of the appellant’s mental health history available to the FTT.

The FTT has not engaged with the evidence that suggests that at the time the appellant was so mentally unwell that he had to be sectioned in late 2021, he was on a settled managed treatment regime with which he was compliant, at a time when he also had significant motivation and impetus to maintain compliance and there was a system in place to monitor and check that mental health, which therefore required further reasoning beyond [B], [C] and [E] above. That system and the appellant’s compliance with the system at the relevant time is detailed in Mr Gregory’s report and the 2021 FTT mental health decision.

The FTT’s bald reasoning at [D] that there is no history of significant violent offending does not engage with the escalation in offending to the 2018 index offence or the appellant’s use of violence when acutely unwell as particularised in the 2021 FTT mental health decision. In addition, whilst the FTT was clearly aware of the appellant’s denial of the index offence, there is no explanation as to the role this played in the reasoning provided.

We are satisfied that the FTT has not engaged with the principal controversial issues arising under this important subject – whether the appellant is a danger to the community. Whilst the FTT noted much of the relevant evidence, there was a failure to explain how those matters undermining the appellant’s case were resolved. When viewed against the key evidence in the case, the FTT has provided inadequate reasons for its conclusion. Ground 1 goes beyond mere disagreement as contended by Mr Pipe and has been made out by the respondent.