Court of Appeal upholds deportation of rapist with permanent residence By Clare Duffy

The Court of Appeal has dismissed the appeal against deportation of a man with permanent residence in Kamki v Secretary of State for the Home Department [2017] EWCA Civ 1715. Mr Kamki had been seeking to prevent his removal to Cameroon following imprisonment for rape.

UK residence and criminal conviction

A Cameroon national, Mr Kamki moved to the UK exercising EU free movement rights to join his wife, a Spanish citizen (using the Surinder Singh immigration route). He obtained a permanent residence card in August 2010, but subsequently separated from his wife.

In October 2011 Mr Kamki held a house party, during which he sexually assaulted and raped a woman. Mr Kamki said that the sex was consensual, but a jury disagreed. He was sentenced to six years’ imprisonment. In prison Mr Kamki maintained his innocence and refused to undertake sex offender courses.

The risk assessment

In anticipation of Mr Kamki’s release on licence the National Offender Management Service carried out a risk assessment. It assessed two dimensions of risk:

1 The low probability of reoffending; and

2 The serious magnitude of harm arising if he did reoffend.

Overall the risk assessment concluded that “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”.

The deportation order

In July 2014 the Secretary of State decided to make a deportation order. The deportation order was made under the European Economic Regulations 2006. In particular:

• Regulation 19(3), which allows the Secretary of State to remove a person with the right to reside in the UK on grounds of public security.

• Regulation 21(3), which requires that a person with permanent right of residence cannot be removed except on “serious grounds of public policy or security”.

• Regulation 21(5), which requires the Secretary of State’s decision to remove a person with permanent right of residence to be proportionate and based exclusively on personal conduct of the individual that represents a “genuine, present and sufficiently serious threat” to society.

The decision

Mr Kamki’s initial appeal to the First-tier Tribunal was dismissed. The subject of the appeal heard by the Court of Appeal was the correctness of the FTT’s decision.

There were three grounds of appeal, namely that the FTT had:

1 Failed to properly apply the “serious grounds” test in Regulation 21(3);

2 Misunderstood the National Offender Management Service’s risk assessment; and

3 Failed to properly assess the level of risk posed by Mr Kamki.

All three grounds failed. In respect of the first and second grounds, the Court of Appeal found that FTT had properly understood the risk assessment, and had explicitly addressed the “serious grounds” test in regulation 21(3).

In respect of the third ground, the Court of Appeal found that the FTT had thoroughly assessed the risk posed by the appellant, including his previous good character, his failure to take sex offending courses, and measures to manage the risk of reoffending following release. The FTT properly concluded that Mr Kamki posed a serious risk to public safety.

The “missing” original ground

Permission to appeal was initially granted because it appeared that Mr Kamki’s case would raise an important point of principle. The original ground was

whether for the purposes of the tests in regulation 21 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 [that is, the two dimensions of risk mentioned above].

That original ground was abandoned when new counsel was instructed and recast the appeal grounds. The result was a much more mundane appeal concerned with the specificities of the FTT’s approach. The Court of Appeal’s quick dismissal of the three grounds of appeal is indicative of the case’s lack of general relevance for practitioners.

In any event, it appears that the original ground’s point of principle had slim prospects of success. Sales LJ took the view that the removal of the original ground was a “realistic concession” (paragraph 18). Practitioners tempted to run the ground in a future appeal should think twice and, if possible, rely on alternative grounds.

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