Essa, R (On the Application Of) v Upper Tribunal (Immigration & Asylum Chamber) & Anor

Until 2000, the deportation of a foreign national who was convicted of a serious criminal offence was only susceptible to challenge in the courts of this country on traditional domestic public law grounds. Following the coming into force of the Human Rights Act 1998, deportation decisions also fall to be considered by reference to the European Convention on Human Rights and Fundamental Freedoms (ECHR). Sometimes Article 2 or Article 3 is engaged but in most cases the focus is on Article 8 and the right to respect for private and family life. As Article 8 rights are qualified, the issue is often proportionality. However, the story does not end there. If the Secretary of State wishes to deport a foreign criminal who is a national of a Member State of the European Union, she is now subject to additional constraints under EU law. Directive 2004/38/EC of the European Parliament and of the Council is generally known as the “Citizens’ Directive”. Its requirements were transposed into domestic law by the Immigration (European Economic Area) Regulations 2006 (the Regulations). The Directive is concerned with “Union citizens”. A Union citizen is defined as “any person having the nationality of a Member State”: Article 2(1). Recital (3) of the Directive states that Union citizenship “shall be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence”. Union citizens have enhanced protection against deportation or “expulsion”. Article 28 of the Directive provides:

“1.

Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided in its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

2.

The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.”

If the Union citizen has resided in the host Member State for the previous ten years, expulsion must be on “imperative grounds of public security”: Article 28.3. In any event, there is a requirement of proportionality; decisions must be based “exclusively on the personal conduct of the individual concerned” and previous criminal convictions “shall not in themselves constitute grounds for taking such measures”: Article 27.2. All this is reflected in regulation 21 of the Regulations. That, then, is the current legal landscape.

The appellant was born in Somalia. He is now 23. Before his first birthday he moved with his family to the Netherlands. They became Dutch nationals. In July 2001 he moved to the United Kingdom with his mother and some of his siblings. He underwent secondary and college education here. In June 2006 he was convicted of handling stolen goods and received a referral order. In March 2007 he was fined for a Bail Act offence. More significantly, on 23 April 2008, at Snaresbrook Crown Court, he was convicted of an offence of robbery and was sentenced to five years’ detention in a young offender institution. In due course, the Secretary of State decided to make a deportation order pursuant to section 3(5)(a) of the Immigration Act 1971 – the “conducive to the public good” ground. The decision referred to the relevant provisions of the 2006 Regulations.

The appellant appealed to the First-tier Tribunal (FTT) which dismissed his appeal on 18 April 2011. He sought permission to appeal to the Upper Tribunal (UT) but permission was refused by the FTT and by the UT. He then sought permission to apply for judicial review of the UT’s refusal of permission to appeal on the basis set out in R (Cart) v Upper Tribunal [2011] 3 WLR 107. Permission to apply was granted on a limited basis by Mitting J but the substantive application for judicial review was dismissed by Lang J on 1 June 2012: [2012] EWHC 1533 (QB). Sir Richard Buxton granted permission to appeal to this Court.

The issue raised on this appeal is narrow but important. The case for the appellant is that the determination of the FTT was legally flawed because its analysis was essentially one of proportionality as required by Article 8 of the ECHR without consideration of the EU dimension. There is no doubt that the FTT was mindful of both regimes. The criticism is that it failed to appreciate the full content of the requirements of EU law. The criticism is founded on recent jurisprudence of the Court of Justice of the European Union (CJEU) and cognate domestic developments.

The most recent authority produced to the FTT was Bulale v Secretary of State for the Home Department [2009] 2 WLR 992, which bore factual similarities to the present case. It concentrated on the language of the Directive and the 2006 Regulations, the question whether the appellant remained a serious threat and proportionality. It informed the decision of the FTT in the present case.

The first suggestion of a more nuanced approach in the domestic jurisprudence was an obiter passage in the judgment of Carnwath LJ in Batista v Secretary of State for the Home Department [2010] EWCA Civ 896 where he said (at paragraph 27):

“Even in respect of those deemed sufficiently dangerous to justify deportation under the EEA rules, common sense would suggest a degree of shared interest between the EEA countries in helping progress towards a better form of life. The prospects offered by the relationship with [the appellant’s girlfriend] in this country may have been fragile … but in Portugal they would be practically non-existent. Although he has siblings in that country, there seems to have been no evidence that they would be able or willing to offer the support needed to prevent … his likely drift back to crime. There may be room for argument as to the relevance of such points under the Directive, but as at present advised I see no reason in principle why they may not be taken into account in the overall balance of proportionality.”

Although Batista was decided some nine months before the promulgation of the determination of the FTT in the present case, it was not referred to by the tribunal.

Meanwhile, developments were taking place in the CJEU. Advocate General Bot delivered his Opinion in Land Baden-Würtemberg v Tsakouridis [2011] 2 CMLR 11 on 8 June 2010, some six weeks before the domestic judgment in Batista, although it does not seem to have been referred to in the Court of Appeal. The Advocate General said (at paragraph AG95):

“In my view, when [the] authority takes an expulsion decision against a Union citizen following the enforcement of the criminal sanction imposed, it must state precisely in what way that decision does not prejudice the offender’s rehabilitation. Such a step, which relates to the individualisation of the sanction of which it is an extension, seems to me to be the only way of upholding the interests of the individual concerned as much as the interests of the Union in general. Even if he is expelled from a Member State and prohibited from returning, when released the offender will be able, as a Union citizen, to exercise his freedom of movement in the other Member States. It is therefore in the general interests that the conditions of his release should be such as to dissuade him from committing crimes and, in any event, not risk pushing him back into offending.”

This emphasis on “the general interests” and “the interests of the Union in general” is mediated through the proportionality test which “takes on a special significance which requires the competent authority to take account of factors showing that the decision adopted is such as to prevent the risk of reoffending” (paragraph AG94).

In its judgment (which postdated the decision of the FTT in the present case) the CJEU described (at paragraph 50) one side of the equation as

“the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, which as the AG observes in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general.”

Thus there is a European dimension which widens consideration beyond the interests of the expelling Member State and those of the foreign criminal.

Lang J referred to the obiter passage in the judgment of Carnwath LJ in Batista and then interpreted Tsakouridis as follows (at paragraph 46):

“In my judgment, the judgment … in Tsakouridis establishes that the decision-maker, in applying regulation 21 of the EEA Regulations, must consider whether a decision to deport may prejudice the prospects of rehabilitation from offending in the host country, and weigh that risk in the balance when assessing proportionality under regulation 21(5)(a). In most cases, this will necessarily entail a comparison with the prospects of rehabilitation in the receiving country … ”

Turning to the decision of the FTT, Lang J concluded (at paragraphs 53-54) that, although the determination did not distinguish between Article 8 and the Regulations on the issue of proportionality, “the court would be imposing too high a standard of decision-writing on an FTT to find that this amounted to an arguable error of law” and that, accordingly, the UT had not committed an error of law by refusing permission to appeal.

I say at once that I entirely agree with Lang J’s interpretation of Tsakouridis. The European dimension, as I have called it, is now part of the proportionality exercise when the Secretary of State seeks to deport an EU citizen. The real issue on this appeal is whether the FTT had regard to it. In my judgment, it did not, which is hardly surprising as its attention was not sufficiently drawn to it. The case for the Secretary of State was argued by reference to Bulale and that became an important building block in the determination.

The FTT certainly understood that its task in relation to regulation 21 was not coextensive with its task in relation to Article 8. It listed the factors set out in regulation 21(6). It also had well in mind the requirement that a deportation of an EU citizen had to satisfy the test of “serious grounds of public policy or public security”. However, when it turned to proportionality, it conflated the two instruments, following the introductory words:

“We note that the issue of proportionality is a major, if not determining, factor both under the Regulations and also under Article 8.”

There followed a careful review of the evidence which touched upon a traditional Article 8 proportionality exercise but without a conscious consideration of the prospects of rehabilitation as between this country and the Netherlands or an awareness of the interest “of the European Union in general” which would have required a comparison of rehabilitation prospects as indicated by Lang J. As I have said, this omission was quite understandable at the time.

The case for the Secretary of State in this Court is that, even if the FTT did not have the European dimension in mind, in the end it did have regard to the matters relevant to that dimension. In particular, there is a positive passage in the determination about the ability of the appellant “to rebuild his life in Holland” and a degree of scepticism about how responsive he would be to guidance from his siblings in this country once this litigation is at an end. In effect, Mr Hall is submitting that the FTT adventitiously did comply with Tsakouridis, rather as Molière’s M. Jourdain had talked in prose for years without realising it. In my judgment, although this submission is not unarguable, in the end it does not hit its target. Even when benevolently construed, the tribunal cannot be said to have done what Tsakouridis and Lang J required of it. For this reason, I would allow this appeal and remit the case to the UT so that it can grant permission to appeal to itself.

Finally, there is one matter upon which Mr Hall made submissions which I consider to be well-founded. The Advocate General, in the passage which I set out in paragraph 8, above, opined that it is incumbent upon a primary decision-maker who makes an expulsion decision “to state precisely in what way that decision does not prejudice the offender’s rehabilitation”. Although the CJEU expressly adopted part of paragraph AG95 in its judgment, I do not think that it adopted that part. In my respectful opinion it is overprescriptive. The comparative exercise envisaged by Lang J as the usual corollary of Tsakouridis may well be achieved without such a straitjacket.

I agree.

I also agree.