'He is Likely to Have Been Very Vulnerable at the Time that He Committed the Sexual Offence'

More on the sheer bad craziness of UK immigration law

Other than the index offences themselves, there is actually nothing to indicate distorted sexual attitudes…

Dr Galappathie, in CE (Cameroon) v Secretary of State for the Home Department

Here’s a little experiment that you can run in your own free time with a willing research subject. Take a fairly mild-mannered, middle-class, reasonable adult-in-the-room voter. Then give them five judgments to read from the Upper Tribunal’s Immigration & Asylum Chamber, taken at random. And then watch your Centrist Dad transform into Attila the Hun.

I have written about what goes on in the Immigration & Asylum Chamber before from jurisprudential and political theological perspectives. In this piece, I will focus on another aspect of the phenomenon, which is the role played by purported ‘expertise’ in borking and gumming up the system and otherwise debasing legal process. As a window onto this issue, I will be using the recent case of Secretary of State for the Home Department v CC UI-2024-005955 (2025), in which a decision of the First-Tier Tribunal to prevent deportation of a foreign sex offender and drug dealer was successfully appealed on the grounds that - to put it technically - it was not only completely hare-brained but actively mendacious.

‘Particularly serious crimes’

Let’s begin then with the facts and procedural history. CC is a Bangladeshi citizen, who was granted anonymity in these proceedings. He appears to have come to the UK in the early 2010s purportedly seeking asylum due to his father being politically persecuted in Bangladesh, though the Upper Tribunal hearing his case in 2025 eventually found no evidence of this. In any event, what is certainly clear is that in 2015, when 17 years old, he was convicted of committing a serious and violent sexual offence against a stranger - a woman who he met walking to a bus stop, presumably after a night out:

The victim stated to the officer [who interviewed her] that the suspect had approached her…stating he was going to look after her as she was drunk. He said he would walk her to the bus stop….He then pulled her to the ground, pulled her bra off and started sucking her right breast and touching her all over. She screamed and hit him in the head. He then took her bag and ran away. After a short time he returned. The victim had then grabbed her bag and run-off [sic]. At some point during this altercation the victim had called the police.

It is the law in the UK that a ‘foreign criminal’ (meaning, in essence, a non-British or -Irish citizen convicted of an offence of any seriousness) should be automatically deported. And in 2017, after having served his 18-month sentence, CC was duly ordered to be sent home. He appealed against this decision, presumably on Refugee Convention grounds (I will come to the details of this in due course) before the First Tier Tribunal, and failed, because it was found that he ‘present[ed] a high risk of harm to the public’. This was partly because he demonstrated no sincere remorse about his previous conviction, nor any empathy for the victim (who later attempted suicide and had to be placed in a mental health institution for her own safety), and partly because there were ‘well-founded’ and strong suspicions on the part of the police (though this was not proven) that he had been engaged in a string of other sexual offences committed around the same time. The evidence provided to the Tribunal had been enough for the judge to conclude that on the balance of probabilities, including DNA evidence, CC had committed at least two other serious sexual assaults - though successful convictions had not been secured.

In the 2017 First Tier Tribunal’s view, then, ‘the Appellant [CC] is a sexual predator who is likely to re-offend in the same or similar manner to the index offence if he is at liberty’. And his appeal against deportation was dismissed.

Fast forward to 2023 and we then discover that CC had not in fact been deported in 2017 and was still living in London - the 2025 Upper Tribunal judgment does not explain how this happened and we can only speculate. But in any case, in the period between 2017 and 2023 CC had been busily involving himself in so-called ‘county lines’ drug trafficking, sometimes acting as a ‘trusted runner’ and sometimes operating the line himself. He was convicted of two offences in relation to this, both carrying three-year prison sentences, by the Crown Court on 19th June 2023 - and was duly, again, ordered to be deported as a foreign criminal.

He duly appealed against this deportation order, as he had in 2017. And here, it is necessary to explain a little bit about the way in which the law works - so bear with me.

The starting point here, as I have said, is that ‘foreign criminals’ are to be automatically deported. However, with refugees and asylum seekers matters get a bit more complicated. The UK is a party to the 1951 Refugee Convention, Article 33 of which prohibits a contracting state from returning a refugee to a country ‘where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion’. This in itself would of course prevent deportation of somebody like CC, so long as he could prove there was some threat to his life or freedom in Bangladesh. But the drafters of the Convention were not idiots - Article 33 (2) provides that the prohibition of return does not apply to anyone who ‘having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of [the] country’.

What this means, as you will immediately have seen, is that the UK will not be breaching its international legal commitments (at least in respect of the Refugee Convention) if it deports refugees or asylum-seekers who commit ‘particularly serious crimes’ and therefore ‘constitute a danger to the community’. And the UK defines ‘particularly serious crimes’ for the purposes of the interpretation of the Convention in s. 72 of the Nationality, Immigration and Asylum Act 2002, which describes such as crimes as being those for which a sentence of 12 months’ imprisonment or more was imposed.

The basic position then is that refugees and asylum-seekers cannot be deported (or ‘refouled’) if it would threaten their ‘life or freedom’, but that there is an exception if they are ‘serious criminals’. Such people are ‘presumed’ to constitute a danger to the community and they may be deported.

However - as is always the case in law - the devil lies in the zone of discretion, and s. 72 of the Nationality, Immigration and Asylum Act provides that the presumption of danger can be rebutted - in other words, if a foreign serious criminal can convince a judge that he is not in fact a danger to the community anymore, then his deportation can be barred.

And hence the doorway is opened to appeals. And in the early summer of 2024 the First Tier Tribunal’s Immigration and Asylum Chamber heard CC’s appeal against deportation chiefly on the grounds that he was not a ‘danger to the community’. Having been convicted for two drug-related offences and received two three-year sentences, he met the threshold to qualify as a ‘serious criminal’. The main question was whether he could rebut the presumption of danger to the community and hence automatic deportation. And here, the question of his sexual offending history had to be taken into account, because even though it was the drug-related offences which had triggered the deportation, s. 72 of the Nationality, Immigration and Asylum Act makes the assessment of ‘danger to the community’ open-ended - and it can therefore include all potential risk factors.

A ‘danger to the community’

How does an appellant demonstrate (because the burden of proof is on him) that he is not a ‘danger to the community’? The answer, it increasingly appears, is to rely on reports of experts - chiefly psychiatrists. And indeed before the First Tier Tribunal CC’s solicitors were able to wheel out a report from a certain Dr Nuwan Galappathie, a consultant forensic psychiatrist who describes himself as having ‘prepared hundreds of psychiatric reports’ in immigration and asylum cases. Galappathie’s report concluded that CC was ‘at low risk of reoffending’, ‘does not present as a sexual predator’, and can ‘safely be managed in the community in the UK’ - the implication being, of course, that he was not ‘dangerous’ and therefore could rebut the s. 72 presumption.

Galappathie’s report sets out a picture of CC as victim rather than perpetrator. CC had, according to this report, been sexally abused as a child (he was alleged to have been raped by security personnel in Bangladesh). Though this had never come up before in his repeated dealings with the law, his reluctance to disclose the matter was according to Galappathie’s report due to ‘emotional trauma and feelings of shame’. And indeed CC’s general pattern of sex offending was ‘likely to be a reflection of difficulty coping with his own past history of being sexually abused and difficulty with sexual boundaries as a result of being sexually abused himself’. It was not indicative of an ‘escalating pattern of increasing sexually inappropriate behaviour’. He in short:

‘[D]oes not present as an individual with distorted sexual attitudes, does not minimise his past sexual offence, and does not hold attitudes that condone sexual offending.’

Galappathie also took the opportunity to opine about CC’s case history in such a way as to stray into the territory of what might more properly be called advocacy rather than neutral expert judgment. The other sexual offence-related allegations against CC, Galappathie declared, had ‘not been proven’, and he had in any case ‘served a long prison sentence’ and ‘completed relevant courses’. He had ‘support from his family’ and ‘a wish to avoid illicit drugs’. Moreover, ‘the previous Tribunal’ (i.e. in 2017) had not ‘fully consider[ed] [CC’s] reduced risk of sexual offending’. He was ‘likely to have been very vulnerable at the time that he committed the sexual offence’ (never mind the victim!) and the Home Office had not taken into account his ‘progress’ since.

The First Tier Tribunal, it is fair to say, lapped this up. The judge was satisfied that CC had rebutted the presumption that he was a ‘danger to the community’. And this was despite CC not even physically appearing or giving evidence before the Tribunal - in other words, it was a decision reached more or less entirely on the strength of Galappathie’s assessment.

So CC was allowed to remain by the First Tier Tribunal in 2024, and his deportation prevented. But luckily for those of us who do not particularly like the idea of having to ‘manage in the community’ foreign sex offenders and drug traffickers in perpetuity, somebody in the Home Office’s legal department smelled a rat and an appeal was duly launched against the First Tribunal’s decision before the Upper Tribunal in 2025, where a rather more sensible conclusion was reached and a somewhat more critical eye cast over the report, and also the track record, of Dr Galappathie.

A ‘remarkable and concerning conclusion’

Perhaps the most obvious thing the Upper Tribunal noted (and here the two judges, Upper Tribunal Judge Lovato and Deputy Upper Tribunal Judge Saini, must be commended for their application of common sense) was that even taking Dr Galappathie’s report at face value, it said nothing about CC’s ongoing danger to the community as a drug trafficker. And it was his two three-year sentences in this regard that had triggered the automatic deportation in the first place. Setting to one side his risk of sex offending, in other words, it was still the case that he posed a risk in respect of other forms of criminality.

Here, the First Tier Tribunal judge had very briefly and cursorily determined that CC had been a victim of human trafficking and therefore could not have been to blame for the drug offences in question. But the Upper Tribunal concluded, after reproducing most of the sentencing remarks from the Crown Court in convicting CC of the offences in question, that:

there is nothing to indicate a relationship of [human] trafficking nor that [CC] was forced into working on behalf of the criminal gang [and] there is nothing to suggest that the trafficking claim was ever relied upon as a defence or as mitigation.

In other words, the risk assessment carried out by the First Tier Tribunal had been ‘fundamentally flawed’ because it had largely focused on CC’s sexual offending, and, insofar as it had considered his drug trafficking history, had relied on falsehoods.

But more importantly for our purposes a great deal of doubt was cast on the reliability of Dr Galappathie as a reliable expert, which was a matter of critical importance given that his assessment of CC as being of ‘low risk’ of offending had been the crux of the decision by the First Tier Tribunal.

Dr Galappathie, as we have already noted, has issued ‘hundreds’ of psychiatric reports with respect to immigration and asylum matters, and sure enough it emerged during proceedings that he had in 2023 given a report in support of a man from Cameroon, referred to as ‘CE’, and his claim not to be a danger to the community in somewhat similar circumstances to CC. The difference here was the gravity of the offences - CE had been convicted of four counts of raping a child under the age of 13 and two counts of assault against a child under the age of 13, the child in question being his own daughter, aged between 6-9 at the time the offences were committed. He had been sentenced to 18 years in prison for this, and was obviously of course to be automatically deported accordingly.

Galappathie had, however, issued a report with what the Upper Tribunal in CE had labelled a ‘remarkable and concerning conclusion’ - namely that CE, despite his convictions, was at low risk of re-offending. ‘[H]e has served a lengthy prison sentence,’ the report noted, and ‘other than his previous interest in extra marital relationships’ (CE had also had numerous affairs behind his wife’s back), ‘there is actually nothing to indicate distorted sexual attitudes especially towards children’. Somewhat startlingly, the report went on, ‘[CE] does not report any sexual interest in children and is now required to avoid contact with children. Any abnormalities within thinking and behaviour have therefore been resolved as best possible…’

The Upper Tribunal in CE had - one has to say, quite rightly - been ‘extremely concerned’ about this expert report. As the judgment in CE points out, CE had over several years subjected his own, prepubescent, daughter to rape and sexual assault, and this is really a ‘static risk factor’ rather than something that just goes away after a ‘lengthy prison sentence’. Though the judgment did not use this language, the implication is that once somebody has committed crimes of that seriousness, that person is properly to be considered high risk, and therefore a danger to the community, for the rest of their lives.

And this lead the Upper Tribunal in CE to some pretty scathing observations about Dr Galappathie’s report. ‘No cogent explanation’ had been given by that report for its conclusions. It ‘would not have assisted any judge’. On ‘any rational view’ it had failed to have appropriate regard for the facts. And ultimately the Tribunal concluded simply that ‘we do not consider Dr Galappathie to have provided objective and expert evidence’.

The Upper Tribunal in our case, CC, was made aware of the contents of Dr Galappathie’s report in CE (as had the First Tier Tribunal, which had come to the conclusion that Galappathie had learned his lesson after being rebuked for his work in CE). And this led the judges to identify a certain pattern in this particular expert’s reports of downplaying the seriousness of sexual offending by uncritically accepting claims of remorse or ‘[leaving] important material matters out of account’.

For example, although it was true that CC had indicated remorse, it was also clear that he had a track record of ‘falsely claiming to be remorseful…in the context of seeking to achieve a favourable outcome in immigration and asylum proceedings’. In 2017, in the deportation hearing after his initial conviction for his sexual assault of his victim at the bus stop, he had indeed at first claimed to be remorseful. But he had afterwards in cross-examination reverted to insisting on his innocence, that the encounter had been consensual, and even made the bizarre claim that his victim had forced him to touch her. Dr Galappathie’s report had not mentioned any of this.

Moreover, Dr Galappathie had also initially described CC as having committed a ‘serious but isolated sexual offence’ in 2015, and had apparently had to be prodded by CC’s solicitors to produce a hasty follow-up to acknowledge the fact that their client had also been implicated in at least two other offences around the same time - the inference being that he had not actually read all of the documentation. Ultimately, the Upper Tribunal concluded that

‘it is evident…that there are palpable indications that Dr Galappathie overlooked important parts of the overall evidential landscape before he came to the conclusion that the appellant presented only a low risk of reoffending’.

The effect of this was that CC was ultimately found not to have rebutted the presumption of being a danger to the community - with the Home Office’s appeal being successful, and the case being remitted to the First Tier Tribunal for a fresh decision with a different judge. Dr Galappathie’s report simply wasn’t credible. And since that report, and its assessment of low reoffending risk, was really the crux of the decision by the First Tier Tribunal to allow CC to remain, this meant that entire decision had been flawed and had to be set aside.

‘Independent’, ‘unbiased’ and ‘objective’

What are we to make of all of this? There are three broad observations we can make.

The first is easily dealt with, for all that the conclusion is bleak and dispiriting. It is good that there are still people in the Home Office and still judges sitting in immigration and asylum cases who have their heads screwed on - but it is shocking to reflect on the fact that CC should have been deported almost ten years ago (in 2017) and yet still has not been. This is a man who is a blight on the country and has manifestly made himself unwelcome. But he will remain now until at least another First Tier Tribunal decision - where a fresh report from a different psychiatrist may even persuade the judge that he is in the end ‘low risk’. And his is only one case. The open caseload (a euphemism for ‘backlog’) of the First Tier Tribunal Immigration & Asylum Chamber was, last time anybody checked, 90,000.

The second concerns the use of expertise in Immigration & Asylum cases, which are taking on vastly increased importance in recent years. Sometimes, the expert is a psychiatrist like Dr Galappathie, opining on re-offending risk. At others, he or she is a so-called ‘country expert’ who will tell the Tribunal about whether a foreign national who is due to be deported is likely to face particular risks in the country where he or she is from. (Regular readers will be familiar with the case of RC, in which a Zimbabwean pedophile was permitted to remain in the UK in part because a ‘country expert’ on Zimbabwe - a legal academic at Westminster University - had told the Tribunal that RC’s ‘white ethnicity and his convictions as a child sex offender would increase risk’ if he was sent home.) Also regularly making appearances are social workers, who will give a report to the Tribunal when it considers a claim, for example, that deportation would violate the deportee’s right to a family life under Article 8 of the European Convention on Human Rights.

These experts are all supposed to be ‘independent’, ‘unbiased’ and ‘objective’, in the words of Cresswell J in his oft-cited judgment in The Ikarian Reefer [1993] 2 Lloyd’s Reports 68. Their job is not to be participants in litigation, nor to have any skin in the game, but to provide a factual assessment to aid the court. One wonders to what extent modern day experts, who will almost always have been university educated and therefore who will have imbibed all of the bien pensant ideals of the day, can be thought to be ‘unbiased’ or ‘objective’ about a matter as politically charged as, say, immigration and asylum. And one also wonders whether this is something politicians ought to be thinking about.

The third observation concerns the role of expertise applied through law more generally. Previously, I have described how modern adjudication has evolved away from the application of rules to the channeling of what is deemed to be ‘expertise’ in order to reach an outcome. And this is in line with a wider tendency to imagine law as a tool which is wielded so as to display the wisdom and skill of the ruling regime and redound to its ‘glory’. Courts in short no longer always give effect to law as such, but rather provide a legal framing within which purported wisdom and skill is revealed in the form of expert knowledge.

It is reassuring to see the Upper Tribunal applying some suspicion to expert reports in this regard, but saddening to reflect that it is highly unlikely that the truth will sink in: that law displays its virtues when it comes in the form of general, readily understandable, relatively fixed rules that do not require specialist knowledge to apply. There should be absolutely no role for psychiatrists or any other type of expert when it comes to immigration and asylum cases, because the rule should be simple: if a foreign citizen commits a criminal offence and receives a custodial sentence of 12 months or more (actually, I think it should be a custodial sentence of any length at all) then he or she should be deported. No ifs and no buts. No psychiatric report ought to be required to establish whether such a person is at risk of reoffending, because that ought not to be the consideration: the consideration is that Britain is a home, and we do not want foreign criminals to be resident in our home.

Returning sanity to immigration law will require a lot of thought, as it will almost certainly require untangling the UK both from the Refugee Convention and the European Convention on Human Rights. But it will also require a better awareness of what is at stake. And what is at stake is, in the end, not complicated. A sensible country does not seek to ‘manage’ foreign sex offenders and drug traffickers ‘in the community’. It ejects them. This is something about which almost every law-abiding resident of the country, citizen or not, agrees. It is time to do it and to ensure that it is the outcome which the law requires.

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