Kamki v The Secretary of State for the Home Department

For an EEA national with permanent residence, deportation on public-policy or public-security grounds requires separate satisfaction of the serious-grounds threshold and the safeguards in regulation 21(5). The requirements overlap, but a tribunal must address both. Risk may be evaluated by combining the probability of reoffending with the seriousness of the harm if it occurs. A low probability may therefore coexist with a high overall risk. A decision-maker may assess risk on the basis of the conviction despite continued denial of guilt. The denial and absence of rehabilitative work may be relevant. Good character, good prison conduct and proposed risk-management measures do not necessarily outweigh evidence of a serious present threat. Deportation must be protective, not additional punishment.

The appellant, a Cameroonian citizen with permanent residence acquired as an EEA family member, challenged a deportation decision made after convictions for rape and sexual assault. The First-tier Tribunal dismissed his appeal on 5 November 2014, and the Upper Tribunal upheld that decision. On a second appeal, the Court of Appeal considered whether the First-tier Tribunal had applied regulations 21(3) and 21(5) separately, properly understood an OASys risk assessment, and adequately considered good character, prison conduct, unavailable sex-offender courses and planned risk-management measures. The central issue was whether the First-tier Tribunal had made an error of law in finding the statutory deportation tests satisfied.

Appeal dismissed. The appellant had a permanent right of residence, so the Secretary of State had to satisfy both regulation 21(3) and regulation 21(5) of the Immigration (European Economic Area) Regulations 2006. The more demanding regulation 21(4) threshold did not apply.

1. Distinct statutory requirements. Regulations 21(3) and 21(5) imposed distinct requirements, although the relevant considerations could overlap. The First-tier Tribunal addressed them separately and gave proper and sufficient reasons for concluding that both were satisfied.
2. Assessment of risk. It was legitimate to assess risk by considering both the probability of reoffending and the seriousness of the harm if reoffending occurred. The OASys report could therefore coherently record a low probability of reoffending but a high overall risk of serious harm. The Secretary of State could assess risk on the basis that the appellant was guilty despite his denial. His failure to acknowledge responsibility and undertake rehabilitative work was relevant to present risk. That approach was analogous to R (Hassett and Price) v Secretary of State for Justice [2017] EWCA Civ 331.
3. The First-tier Tribunal had taken account of the appellant’s good character, good conduct in prison, inability to undertake sex-offender courses and proposed risk-management programme. Those matters did not prevent a finding of a serious present threat in light of the serious offending and the risk evidence. The Tribunal’s discussion of the OASys report was coherent and did not confuse probability with combined risk.
4. The deportation decision was not imposed as further punishment. The First-tier Tribunal’s reasoning was directed to the protective assessment of present risk, not general deterrence. The Court of Appeal found no error in law, applying the requirement for a conscientious assessment discussed in Bulale v Secretary of State for the Home Department [2008] EWCA Civ 806; [2009] QB 536.

• Court of Appeal (Civil Division) — appeal dismissed. The Court held that the First-tier Tribunal had made no error of law.
• Upper Tribunal (Immigration and Asylum Chamber) — upheld the First-tier Tribunal’s decision and found no error in it.
• First-tier Tribunal — dismissed the appellant’s appeal against the deportation decision on 5 November 2014.