[2024] UKUT 00393 (IAC)

The Respondent’s primary position in relation to the third ground of appeal is that the First-tier Tribunal erred in fact as to the period over which the Appellant had not reoffended, referring in more than one place in the decision to this being a period of two years when in fact it was only one year and four months since the last conviction (slightly more since the commission of the latest offence). This factual error infected its assessment of whether the Appellant was a persistent offender at the date of hearing and consequently, the overall assessment of whether the Appellant presented a genuine, present and sufficiently serious threat to the public and ultimately, if so, whether the decision was proportionate.

There were a number of further points relied upon by the Respondent as follows. First, it was submitted that the First-tier Tribunal erred in its application of the principles in Chege (“is a persistent offender”) [2016] UKUT 187 (IAC) by proceeding on the basis that the Appellant could only be regarded as a persistent offender if he continued to offend up to the date of hearing and properly applied, it was not open to the First-tier Tribunal to conclude that by the date of hearing the Appellant was no longer a persistent offender.

Secondly, that the First-tier Tribunal erred in its assessment of the seriousness of the Appellant’s offences by failing to consider the frequency of offending and propensity to commit further crimes, as well as confining the idea of public revulsion to the kind of offending and not its frequency. In any event, public exposure is an offence which would attract public revulsion. Further, Mr Malik KC submitted that the First-tier Tribunal failed to take into account that committing a crime following an earlier conviction is itself an escalation of offending, such that it was not open to the First-tier Tribunal to conclude that there had been no escalation in the seriousness of offending. In particular, Mr Malik KC relied both on logic and common sense as to further offending being an escalation in seriousness, but also on the Sentencing Council Guidelines to show that further offending is a factor which increases the length of sentence for a later sentence. An example is that for assault of an emergency worker, which in the crown court sentencing guidelines, previous convictions are listed as an aggravating factor. However, Mr Malik KC could not demonstrate on this particular Appellant’s criminal history that there was a resulting increase in length of sentence given for the subsequent offences pursuant to such guidelines which would in itself be an indicator of escalating seriousness.

In summary, the Appellant’s position is that although there was a factual error in the length of time relied upon by the First-tier Tribunal without further offending, it was not material to the question of whether the Appellant was a persistent offender at the date of hearing. First, because the actual period was eighteen months from the last offence (rather than last conviction) which was not significantly different to two years; and secondly, because the assessment was more nuanced than just the period of time, also taking into account factors such as the Appellant’s deportation and more stable mental health.

On the First-tier Tribunal’s assessment of whether the Appellant posed a threat at the date of hearing, the Appellant’s position is that the findings made were rationally open to the First-tier Tribunal to make on the evidence. In particular, the Appellant’s criminal history does not show that there was any escalation in the seriousness of offending given that the length of sentences given fluctuated over time, with the longest of 26 weeks’ imprisonment in April 2021, which was followed by sentences of 24 weeks, 4 weeks and 6 weeks. Overall, the First-tier Tribunal made a quantitative and qualitative assessment of offending, which specifically did not include any emerging pattern or escalation of sexual offences. The mere fact that further offences were committed did not, per se, increase the seriousness of offending. In considering the evidence as a whole, the First-tier Tribunal were entitled to find that the Respondent had not established that there were serious grounds of public policy or public security to justify the Appellant’s deportation.

We deal first with the First-tier Tribunal’s reliance on there having been no offences committed by the Appellant for a period of two years up to the date of hearing on 10 January 2024. As accepted by the parties, this was a factual error given that the Appellant’s most recent conviction prior to the hearing was on 23 September 2022, a period of some one year and four months and the latest offence being committed on 4 July 2022 (for which he was sentenced in early September 2022), a period of some eighteen months prior to the hearing. Whilst we accept that the period without further offending would not as a matter of principle be determinative of whether the Appellant was a persistent offender, nor would that conclusion necessarily be determinative of whether the Appellant posed a genuine, present and sufficiently serious threat to the public; we find that in this case, it can not be found that the factual error was not material to these further findings given the repeated reliance placed on it in the First-tier Tribunal’s decision, particularly given the other indicators that the Appellant continued to pose a risk. That factual error alone is in our view sufficient to undermine the safety of the remaining findings and the decision must be set aside in relation to the assessment of risk and therefore also as to proportionality which follows on from it.

We find less merit in the remaining points raised by the Respondent within this ground of appeal which were more akin to disagreement with the consideration of and weight to be attached to various factors considered in the round, particularly as to the seriousness of offending. On the facts, we are not persuaded that the First-tier Tribunal erred in law in finding that there had not been an escalation in the seriousness of offending, albeit the position was a little more nuanced than that presented on behalf of the Appellant when looking at individual sentences for specific offences rather than overall period of sentencing which involved some concurrent and some consecutive sentences, there was a small increase in length of sentence between those given in April 2021 and July 2022, albeit much shorter sentences were given for the final two convictions.

We further consider that the submissions made in relation to public revulsion were somewhat of a red herring which were unlikely to be material either way. Whilst this is a factor that could potentially be relevant to the assessment, this is not really one of those cases where it would carry great weight if relevant at all given that the Appellant’s offending is not of the type or frequency that would likely engage this concept as against other examples of where it would clearly apply (SSHD v Robinson [2018] EWCA Civ 85, [2018] 4 WLR 81 refers, at [71]). That is not to reduce the possible public revulsion against the exposure offence, but to recognise that it remains at the lower end of the scale for this.

Theses are in any event matters which will need to be considered in the round when the appeal is remade on this issue and do not detract from the primary finding that the decision on assessment of threat must be set aside due to the factual error which infects the remaining findings and assessment.