Connell, R (on the application of) v Secretary of State for the Home Department

This appeal concerns the relationship between the deportation provisions of the UK Borders Act 2007 (“the 2007 Act”), the provisions relating to deportation of EEA nationals contained in the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”), and the Secretary of State’s policy relating to deportation of Irish nationals.

The appellant is an Irish national. In September 2011 he was sentenced in the United Kingdom to 11 years’ imprisonment for serious sexual offences against a child. In July 2012 he was notified that the Secretary of State was considering his liability to deportation on grounds of public policy. In the course of subsequent correspondence, the appellant indicated his wish to be deported to Ireland and sought a decision to that effect. By letter dated 9 December 2015, however, he was informed that the Secretary of State had decided not to deport him. It was explained in a later letter that his case was considered not to meet the requirement of exceptional circumstances for deportation under the policy relating to deportation of Irish nationals. He was released from prison on licence in August 2016. The effect of his licence conditions is to require him to remain in the United Kingdom until February 2022, when the licence expires.

The appellant was granted permission to apply for judicial review of the decision of 9 December 2015 on two grounds: (i) that the policy or practice regarding the deportation of Irish nationals was ultra vires the provisions of the 2007 Act and/or the Immigration Rules, and (ii) that the Secretary of State had failed to give adequate reasons for the decision. In a detailed judgment Mr Robin Purchas QC, sitting as a Deputy High Court Judge, dismissed the judicial review claim on both grounds: see [2017] EWHC 100 (Admin), [2017] 4 WLR 38. The appeal to this court is brought, with permission granted by the deputy judge, on the first ground alone and limited to the effect of the 2007 Act.

The facts concerning the appellant’s individual case are set out more fully in the judgment below but a fuller exposition is not needed for resolution of the issue of statutory construction that arises on the appeal.

It is helpful to summarise the statutory and policy framework governing deportation as it stood prior to the coming into force of the 2007 Act, before setting out the relevant provisions of the 2007 Act itself. I will then explain the deputy judge’s construction of the 2007 Act and will proceed to discuss the issue of construction and to give my conclusions on the appeal.

The basic statutory provisions relating to deportation were contained, as they still are, in the Immigration Act 1971 (“the 1971 Act”), as amended from time to time. Section 3 provided:

“3(5) A person who is not a British citizen is liable to deportation from the United Kingdom if –

(a)

the Secretary of State deems his deportation to be conducive to the public good; or

(b)

another person to whose family he belongs is or has been ordered to be deported.

(6)

Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.”

Where a person was liable to deportation under one or other of those provisions, then by section 5 the Secretary of State had a discretionary power to make a deportation order against him:

“5(1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom ….”

By section 5(5), the supplementary provisions of Schedule 3 to the 1971 Act had effect with respect to the removal from the United Kingdom of persons against whom deportation orders were in force and with respect to the detention or control of persons in connection with deportation.

Section 7 contained an exemption from the deportation provisions for certain existing residents of the United Kingdom. In particular, section 7(1) provided that a citizen of the Irish Republic who was such a citizen on the coming into force of the 1971 Act and was then ordinarily resident in the United Kingdom “shall not be liable to deportation under section 3(5) if at the time of the Secretary of State’s decision he had for the last five years been ordinarily resident in the United Kingdom and Islands”.

The deportation of EEA nationals was subject to a separate regime contained in the 2006 Regulations, made under section 2 of the European Communities Act 1972 by way of implementation of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”). The Directive dealt inter alia with the conditions that had to be satisfied before a Member State might restrict the rights of free movement and residence provided for by Article 21 of the Treaty on the Functioning of the European Union. I can focus on the implementing Regulations because it is common ground that they represented, so far as material, a full transposition of the relevant provisions of the Directive. (The 2006 Regulations replaced earlier regulations and were in force not only at the time when the 2007 Act came into force but also, subject to amendments in 2009, at the date of the decision challenged in these proceedings. They have since been replaced by the Immigration (European Economic Area) Regulations 2016.)

An “EEA decision” was defined in regulation 2(1) of the 2006 Regulations as “a decision under these Regulations that concerns … (c) a person’s removal from the United Kingdom”; and “EEA national” was defined as “a national of an EEA State who is not also a British Citizen”.

In its original form, regulation 19(3) provided for a power of removal as follows:

“19(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if –

…

(b)

he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21 ….”

The regulation was amended in 2009 to provide more simply that “an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if … (b) the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 21”. The differences are not material but I mention the later version both because it was in force at the date of the decision challenged and because use of the expression “EEA national” makes the scope of the regulation more readily understood.

Regulation 21 provided:

"21(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.

(2)

A relevant decision may not be taken to serve economic ends.

(3)

A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.

(4)

A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who –

(a)

has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or

(b)

is under the age of 18, unless the relevant decision is necessary in his best interests ....

(5)

Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles –

(a)

the decision must comply with the principle of proportionality;

(b)

the decision must be based exclusively on the personal conduct of the person concerned;

(c)

the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d)

matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e)

a person's previous criminal convictions do not in themselves justify the decision.

(6)

Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin…"

There was therefore an important difference between the substantive requirements for deportation in an EEA case and for deportation in a non-EEA case. In a non-EEA case, governed by the 1971 Act, the power to deport a person depended on the Secretary of State deeming his deportation to be conducive to the public good or one of the other conditions in section 3(5) or (6) being satisfied. By contrast, in an EEA case, governed by the 2006 Regulations and reflecting the requirements of EU law, a decision to remove had to be based exclusively on the personal conduct of the person concerned; that conduct had to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; and in the case of a person resident in the United Kingdom, a range of individual considerations had to be taken into account before the decision was taken.

Once a decision to remove an EEA national was taken under the 2006 Regulations, however, the machinery of the 1971 Act was brought into play as the means of giving effect to that decision. Thus, regulation 24 provided:

"24(1) This regulation applies to a person whom it has been decided to remove from the United Kingdom in accordance with regulation 19(3).

…

(3)

Where the decision is under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly."

By amendments made in 2009, a different provision was substituted for regulation 24(1) and the opening words of regulation 24(3) were amended to read “Where a decision is taken to remove a person under regulation 19(3)(b) …”. Again, the changes are not material but I mention them for completeness. I should also mention that "deportation order" was not defined in the original version of the 2006 Regulations, but by the 2009 amendments it came to be defined in regulation 2(1) as “an order made pursuant to regulation 24(3)".

Because of the language used, it is also relevant to mention paragraph 4(3) of Schedule 4 (transitional provisions) to the 2006 Regulations, which read:

“4(3) A deportation order made under section 5 of the 1971 Act by virtue of regulation 26(3) of the 2000 Regulations [i.e. the equivalent provision to regulation 24(3) of the 2006 Regulations] shall, after 29 April 2006, be treated as a deportation order made under section 5 of the 1971 Act by virtue of regulation 24(3) of these Regulations.”

A helpful discussion of the relationship between the 2006 Regulations and the provisions of the 1971 Act is to be found in the judgment of Jay J in R (Byczek) v Secretary of State for the Home Department [2014] EWHC 4298 (Admin), [2015] 2 CMLR 7, though the particular issues in that case, which related to appeal rights, were different from those in the present appeal. Jay J said this:

“60.

The defendant might have achieved her policy objectives in relation to EEA nationals by pursuing one of three possible routes. First, she might have carved out special rules for EEA nationals in the Immigration Act 1971. Such rules would have made clear, for example, that the criteria for removal were different, and narrower, in EEA cases. Secondly, she might have created a wholly self-contained regime for EEA nationals which did not rely on the Immigration Act 1971 at all. For such a regime to operate, the defendant would have had to build into the EEA Regulations a web of decision-making and coercive powers which broadly matched ss.3 and 5 of, and Sch.3 to, the Immigration Act 1971 …. Thirdly, she might have created a form of hybrid between the first two routes: in other words, the promulgation of a separate set of subordinate legislation which relied to some extent on pre-existing statutory powers.

61.

The defendant chose the third of these routes. She clearly intended to establish a separate regime for EEA nationals, but at the same time she did not intend to re-invent the wheel. Statutory powers were available and could be deployed.

…

65.

Where … a deportation decision is made [under reg. 19(3)(b)], the person the target of that decision is treated by virtue of reg.24(3) as if he were a person to whom s.3(5)(a) of the 1971 Act applied. The reason why reg.24(3) is phrased as it is seems clear. The defendant did not wish to follow the second of the three routes I have identified. That would have been overkill. But, the defendant needed to make clear that persons who were the subject of EEA deportation decisions should be regarded as being persons liable to deportation for the purposes of s.3(5)(a) of the Immigration Act 1971, even if the grounds on which the discretion to deport is exercised are very different in an EEA case. That in itself would achieve next to nothing, but the real reason for treating these persons in this way is disclosed by focusing on the clause succeeding the final comma in reg. 24(3). To the extent that such provisions were not inserted into the EEA Regulations, the defendant needed to bring these persons within the procedural and supplementary provisions of s.5 of, and Sch.3 to, the 1971 Act. Section 5 contains a series of procedural provisions which the defendant would sensibly wish to apply to EEA nationals. These have nothing to do with the substance of the defendant’s decision-making, but everything to do with the consequences of it. Likewise, the defendant requires the machinery laid down in Sch.3 to detain EEA nationals and to effect their removal. It is for these reasons that s.5 and Sch.3 apply ‘accordingly’ to persons whose removal is deemed conducive to the public good, on account of s.3(5)(a).”

Whilst the Secretary of State had the power to make a deportation order against an EEA national where the conditions of the 2006 Regulations were satisfied, the published policy was to consider Irish nationals for deportation only in exceptional circumstances. The policy was summarised in a written ministerial statement to Parliament on 19 February 2007:

"Irish citizens will only be considered for deportation where a court has recommended deportation in sentencing or where the Secretary of State concludes that, due to the exceptional circumstances of the case, the public interest requires deportation. In reviewing our approach in this area we have taken into account the close historical, community and political ties between the United Kingdom and Ireland, along with the existence of the common travel area."

A fuller statement of how the policy applied in practice is given in a passage from the Secretary of State’s guidance on EEA foreign national offender cases, dated 6 October 2015, which is quoted at paragraph 15 of the judgment below, and in a Prison Service Instruction referred to in the same paragraph. But the details are not needed for the issue of construction that arises on the appeal.

The 2007 Act received the Royal Assent on 30 October 2007. The relevant sections came into force on 1 August 2008.

Sections 32-39 concern the deportation of criminals. Sections 32 and 33 provide, so far as material:

"32.

Automatic deportation

(1)

In this section "foreign criminal" means a person –

(a)

who is not a British citizen,

(b)

who is convicted in the United Kingdom of an offence, and

(c)

to whom Condition 1 or 2 applies.

(2)

Condition 1 is that the person is sentenced to a period of imprisonment of at least 12 months.

(3)

Condition 2 is that –

(a)

the offence is specified by order of the Secretary of State under section 72(4)(a) of the Nationality, Immigration and Asylum Act 2002 (serious criminal), and

(b)

the person is sentenced to a period of imprisonment.

(4)

For the purpose of section 3(5)(a) of the Immigration Act 1971, the deportation of a foreign criminal is conducive to the public good.

(5)

The Secretary of State must make a deportation order in respect of a foreign criminal (subject to section 33).

(6)

The Secretary of State may not revoke a deportation order made in accordance with subsection (5) unless –

(a)

he thinks that an exception under section 33 applies,

(b)

the application for revocation is made while the foreign criminal is outside the United Kingdom, or

(c)

section 34(4) applies.

…

"33.

Exceptions

(1)

Section 32(4) and (5) –

(a)

do not apply where an exception in this section applies (subject to subsection (7) below), and

(b)

are subject to sections 7 and 8 of the Immigration Act 1971 (Commonwealth citizens, Irish citizens, crew and other exemptions).

…

(4)

Exception 3 is where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the EU treaties.

…

(7)

The application of an exception –

(a)

does not prevent the making of a deportation order;

(b)

results in it being assumed neither that deportation of the person concerned is conducive to the public good nor that it is not conducive to the public good;

but section 32(4) applies despite the application of Exception 1 or 4."

The definition of “deportation order” for the purposes of sections 32 and 33 is given in section 38, the interpretation section:

"38(4) In sections 32 and 33 –

…

(c)

"deportation order" means an order under section 5, and by virtue of section 3(5), of the Immigration Act 1971 …."

The relevant issue for the judge was whether the policy relating to deportation of Irish nationals, as applied to the appellant’s case, was compatible with sections 32 and 33 of the 2007 Act. The case for the appellant was that the 2007 Act imposed a clear and specific mandatory regime for deportation of all qualifying foreign national offenders. By virtue of section 32(4) and (5) the Secretary of State was bound to make a deportation order in respect of a foreign criminal where, inter alia, condition 1 was met (sentence to a period of imprisonment of at least 12 months). That was subject to the exceptions in section 33 and in particular exception 3. The terms of that exception demonstrated that the provisions of sections 32 and 33 applied to EEA nationals. In accordance with EU law (and assuming that the EEA national sought to exercise the Treaty rights of freedom of movement or the Directive rights against removal) the decision maker was required to examine whether the removal of the foreign criminal would breach that person’s EU rights. If it would, the mandatory requirement for a deportation order under section 32(5) would not apply. In all other cases, however, the requirement to make a deportation order would apply.

The deputy judge rejected that line of argument, holding in effect that the duty under section 32(5) to make a deportation order in respect of a foreign criminal had no application even potentially to EEA nationals, who remained subject to the separate regime contained in the 2006 Regulations. His reasons are set out at paras 45-63 of his judgment.

At para 49 the deputy judge said that the effect of the definition of “deportation order” in section 38(4)(c) was “potentially crucial” to the application of sections 32 and 33 of the 2007 Act. At para 51 he stated:

“51.

The definition of 'deportation order' is specifically qualified by two requirements, (1) that the order is 'under section 5' of the 1971 Act and (2) that it is 'by virtue of section 3(5)' of that Act. As set out above, the structure of the 1971 Act is that, where a person who is not a British citizen is liable for deportation under section 3 of the 1971 Act, a deportation can be made under and in accordance with the provisions of section 5 of and schedule 3 to the Act. To give meaning to both elements to the definition, in my judgment force should be given to both, that is the making of the deportation 'under' section 5 and that the power to do so originates 'by virtue of' section 3(5). Thus the relevant provisions of sections 32 and 33 are limited to that extent. In the European context a derogation from EU rights is to be strictly construed.”

He proceeded to analyse the 2006 Regulations. As regards the approach adopted in regulation 24(3) to decisions to remove an EEA national under regulation 19(3)(b), he said this:

“55.

… Such a person is 'to be treated as if he were' a person to whom section 3(5)(a) of the 1971 Act applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provisions as to deportation) 'are to apply accordingly'. In my judgment someone who is to be treated 'as if he were' a person in a particular position is different from applying the relevant provision to that person so that the decision is made under or by virtue of that provision. Accordingly the decision to remove would not in my judgement be made by virtue of section 3(5)(a) of the 1971 Act.

56.

What then of the effect of section 5 and Schedule 3, which are to apply 'accordingly'? In my view the answer to that question is straightforward, that is that the provisions for deportation orders in section 5 and Schedule 3 are to apply 'as if the person were a person to whom section 3(5)(a) applied'. Thus the Defendant has a discretion whether or not to make a deportation order in accordance with the provisions in section 5 and the Schedule. However, for the purposes of the definition in section 38(4)(c) of the 2007 Act, whether or not the deportation order is properly regarded as being made under section 5 for this purpose, it is not made under that section 'by virtue of' section 3(5) of the 1971 Act, but because the person is to be treated 'as if he were' a person to whom that subsection applied by virtue of regulation 24(3) of the 2006 Regulations. That construction seems to me to give full weight to the statutory language but also respects the statutory objective of the provisions concerned.”

On that basis the deputy judge found that the duty in section 32(5) of the 2007 Act to make a deportation order in respect of a foreign criminal simply did not apply in the case of an EEA national, whose removal would continue to be governed by the 2006 Regulations. On his approach, that result flowed from section 32(5) without any need to rely on the exceptions in section 33, in particular exception 3 relating to rights under the EU treaties.

The deputy judge explained the consequences of his approach as follows:

“59.

If it is correct that a deportation order that is made as a result of regulation 24(3) does not come within sections 32 and [33] of the 2007 Act, it is important to see how those provisions in the 2007 Act would then operate. The Defendant would not be required to make a deportation order under section 32(5) and the revocation provisions under section 32(6) would not apply. However the statutory assumption for the purposes of section 3(5)(a) of the 1971 Act would apply save to the extent that under section 33(1) and exception 3 removal of the foreign criminal in pursuance of a deportation order (as defined) would breach the rights of the foreign criminal under the EU treaties. That envisages that there was a situation where the 1971 Act provisions were engaged directly (as opposed to under the 2006 Regulations). If that arose, it would in my judgment be entirely apposite that the exception should apply to secure the coherence of the statutory provisions with the Directive and European law. While I acknowledge that no example of this was given, it does not seem to me that, even if it were unnecessary as a provision, this would outweigh what seems to me to be the persuasive reasons that support the approach to construction which I have set out above.

60.

For similar reasons section 33(7)(a) would apply on the same basis to a deportation order that would be made by virtue of section 3(5) of the 1971 Act. Section 33(7) would be consistent with exception 3 in that, if it applies, the result would be to remove the effect of section 32(4) and require an assumption that deportation is neither conducive nor not conducive to the public good, which in principle would seem consistent with the Directive and, so far as relevant, regulation 21.”

His conclusion as to the proper construction of the 2007 Act led to the further conclusion that the policy relating to the deportation of Irish nationals was lawful:

“61.

So far as the Defendant's policy and guidance is concerned, it seems to me open to the Defendant to have adopted a policy that provided for a general rule so far as Irish national offenders are concerned, while enabling specific cases to be considered as an exception in accordance with regulations 19 and 21 of the 2006 Regulations, at least so far as compatibility with the regulations and the Directive are concerned. I do not accept that there would be any conflict with the statutory objective underpinning the 2007 Act in that in my judgment those provisions were deliberately only applied to deportation orders made by virtue of section 3(5) of the 1971 Act and to that extent did not apply to cases concerning EEA nationals under the 2006 Regulations.

…

63.

For all the above reasons in my judgment the policy or practice regarding the deportation of Irish nationals is not ultra vires the legislative provisions of the 2007 Act and this ground accordingly fails.”

I have reached the same ultimate conclusion as the deputy judge, but by a slightly different route.

My starting point is that section 32 of the 2007 Act applies in principle to EEA nationals as it does to non-EEA nationals. That follows from the generality of the definition of “foreign criminal” in section 32(1), namely “a person … who is not a British citizen” and who meets the other conditions referred to. Moreover the provision in section 33(1)(b) that section 32(4) and (5) are subject to section 7 of the 1971 Act, with express reference to the position of Irish citizens, would not be needed if those subsections had no application in any event to EEA nationals. (The existence of exception 3 (section 33(4)), relating to breach of rights under the EU treaties, does not give rise to a similar point about redundancy, since it is possible that a non-EEA national might be able to rely on rights under the EU treaties, thus giving the exception a useful, albeit limited, purpose even if section 32 did not apply to EEA nationals. As explained below, however, the exception has a far more important role if section 32 does apply to EEA nationals.)

It follows that section 32(4), laying down a statutory assumption that for the purpose of section 3(5)(a) of the 1971 Act the deportation of a foreign criminal is conducive to the public good, applies to EEA nationals as it does to non-EEA nationals.

It also follows that section 32(5) whereby, subject to section 33, the Secretary of State must make a deportation order in respect of a foreign criminal, applies to EEA nationals as it does to non-EEA nationals. This is the point at which the deputy judge relied on the definition of “deportation order” in the 2007 Act for a different conclusion. I agree that the definition is important but I do not think that it supports the judge’s conclusion as to the scope of section 32(5). By section 38(4), “deportation order” means “an order under section 5, and by virtue of section 3(5), of the Immigration Act 1971”. Section 32(5) therefore requires the Secretary of State, subject to section 33, to make an order under section 5 of the 1971 Act and by virtue of section 3(5) of that Act. This ties in with the statutory assumption in section 32(4) that for the purpose of section 3(5)(a) of the 1971 Act deportation of a foreign criminal is conducive to the public good, an assumption that renders the person liable to deportation under section 3(5). The plain legislative intention is that, subject to section 33, an order must be made under section 5 of the 1971 Act in respect of a foreign criminal as a person liable to deportation on the ground that his deportation is conducive to the public good. The duty to make such an order, subject to section 33, applies to any foreign criminal, whether an EEA national or a non-EEA national.

The deputy judge relied on the fact that where a decision is taken to remove a person under regulation 19(3)(b) of the 2006 Regulations, regulation 24(3) provides for that person “to be treated as if” he were a person to whom section 3(5)(a) of the 1971 Act applied, and section 5 of the 1971 Act is to apply accordingly. He reasoned that the order made under section 5 in such a case is not made by virtue of section 3(5)(a) but by virtue of regulation 24(3). To that extent I agree with his analysis. It gives proper effect to the way in which the 2006 Regulations engage the procedural provisions of the 1971 Act whilst avoiding the substantive conditions of that Act. It is also supported by the express language used in paragraph 4(3) of Schedule 4 to the 2006 Regulations themselves (“deportation order made under section 5 of the 1971 Act by virtue of regulation 24(3) of [the 2006] Regulations”). But I do not see how the point justifies the conclusion reached by the deputy judge. The fact that an order to give effect to a decision to remove a person under the 2006 Regulations is made by virtue of a different provision and on a different substantive basis from the order required by section 32(5) is not in itself a good reason for holding the requirement in section 32(5) to be inapplicable to EEA nationals. It does not do justice to the clear terms of section 32(5).

The deputy judge was rightly concerned, however, to produce a result that respected the rights of EEA nationals under EU law and that did not undermine the regime laid down in the 2006 Regulations to give effect to those rights. There is nothing in the 2007 Act, and we have been referred to nothing in the surrounding circumstances, to suggest that the Act was intended to supersede or interfere with the operation of the 2006 Regulations. Moreover, to make a deportation order against an EEA national on the ground that his deportation was, by statute, assumed to be conducive to the public good would be plainly contrary to the requirements of EU law and cannot have been the legislative intention. As explained above and as shown by the detail of the 2006 Regulations, a decision to remove an EEA national has to be based exclusively on the personal conduct of the person concerned and requires an individualised assessment of his case. The contrast between the approach required in an EEA case and the approach applicable under ordinary principles of domestic law is illustrated by the discussion in Straszewski v Secretary of State for the Home Department [2015] EWCA 1245, [2016] 1 WLR 1173, in particular at paras 11-20, much of which is quoted at para 16 of the judgment below. The approach required in an EEA case is fundamentally inconsistent with the application of a statutory duty to deport on the basis of a generalised assumption that deportation is conducive to the public good.

But in my view the solution lies in the exceptions laid down in section 33, to which section 32(5) is expressly subject, rather than by the route taken by the deputy judge. Exception 3 is “where the removal of the foreign criminal from the United Kingdom in pursuance of a deportation order would breach rights of the foreign criminal under the EU treaties”. Removal of an EEA national in pursuance of an order made under section 5 of the 1971 Act by virtue of section 3(5) of that Act, i.e. an order based on the ground that the person’s deportation is conducive to the public interest, would be in plain breach of that person’s rights under the EU treaties. Exception 3 provides a straightforward basis on which the duty in section 32(5) to make a deportation order is disapplied in the case of an EEA national, leaving the issue of deportation in such a case to be determined in accordance with the 2006 Regulations. Where a decision is taken under regulation 19(3)(b) of the 2006 Regulations to remove a person, the machinery for making a deportation order to give effect to the decision remains that of the 1971 Act as applied by regulation 24(3); the power in section 5 of the 1971 Act continues to apply; and it remains a discretionary power, not affected by the duty that would otherwise arise under section 32(5) of the 2007 Act.

Mr Rule argued on behalf of the appellant that exception 3 would not apply in the appellant’s case because, given his stated wish to be deported to Ireland, he was not seeking to exercise his EU rights or had waived those rights, so that there was nothing to displace the duty in section 32(5) to make a deportation order against him. I do not accept the argument. To make a deportation order under section 32(5) would be in breach of the appellant’s rights under the EU treaties, irrespective of whether he was seeking to exercise those rights or had purported to waive them. The appellant’s wish to return to Ireland is not a good reason for holding that the exception does not apply and thereby avoiding the established regime relating to the deportation of EEA nationals.

A further argument advanced by Mr Rule, if I have understood it correctly, is that exception 3 would not apply to the appellant because he is a person who would fall for deportation under the 2006 Regulations, so that it could not be said that his deportation would be in breach of his EU rights. In my view, however, the exception applies irrespective of the outcome that would be reached on consideration of a case under the 2006 Regulations: it applies as a threshold matter because an altogether different process of consideration is required in an EEA case. The argument also fails to take account of the discretion enjoyed by the Secretary of State in relation to decision-making under and pursuant to the 2006 Regulations.

Mr Rule submitted further that the decision of the Court of Appeal (Criminal Decision) in R v Kluxen [2010] EWCA Crim 1081, [2011] 1 WLR 218 was binding authority in the appellant’s favour. Kluxen was an early case on the effect of the deportation provisions of the 2007 Act. Two appeals (involving three offenders, two of whom were EU nationals) were listed together “to enable the court to consider the circumstances in which a court should recommend an offender’s deportation and whether or not different principles should be applied in this regard to offenders who are and are not citizens of the European Union” (para 2 of the judgment of the court). The court stated that the relevant provisions of the 2007 Act “apply to all convicted persons who are not British citizens, whether they are citizens of the EU or not” (para 5). It went on to hold that it was no longer appropriate for a court to recommend the deportation of a foreign criminal as defined in section 32 (para 9) and that it would rarely be appropriate to recommend the deportation of an offender who was not a British citizen but to whom the 2007 Act did not apply because he was not a foreign criminal as defined (para 28). The entire focus was on the court’s role in relation to the making of a recommendation for deportation, not on the making of a deportation order by the Secretary of State; and although section 33(4), the exception relating to breach of rights under the EU treaties, was raised in the grounds of appeal, its application did not fall for decision by the court.

Thus, at para 34 the court stated:

“The powers of the Secretary of State to make deportation orders if appropriate are unaffected by the approach that we have adopted. Offenders to whom the 2007 Act applies will be deported in any event unless one of the exceptions under section 33 of that Act applies; and where the 2007 Act does not apply, the Secretary of State has the power to deport offenders under section 3(5)(a) of the 1971 Act if he deems this to be conducive to the public good.”

In its concluding paragraphs the court stated that all three offenders fell squarely within section 32 of the 2007 Act and allowed all three appeals to the extent of quashing the recommendations for their deportation. But the judgment continued, at para 51:

“We are aware that this outcome will not have any practical effect. For the reasons we have explained the Secretary of State must in any event make a deportation order in respect of Kluxen [a non-EEA national] unless he considers that one of the exceptions under section 33 of the 2007 Act applies in her case. We have been informed that Rostas [an EEA national] has already been deported, and that Adam [also an EEA national] has been informed by the United Kingdom Border Agency, for reasons of which we are unaware, that he will not be deported.”

In short, the decision supports the view that section 32 applies to EEA nationals and is consistent with the approach I have taken towards sections 32 and 33 for the purposes of the present appeal. Various arguments about the status of the decision in Kluxen were advanced before us on the contrary premise but in the circumstances I do not need to consider them.

We were also referred to R (Mormoroc) v Secretary of State for Justice [2017] EWCA Civ 989, in which the appellant, an EEA national, challenged the Secretary of State’s policy with regard to release on home detention curfew of a foreign prisoner who had been notified of liability to deportation but in respect of whom no deportation order had been made. The parties and the court appear to have proceeded on the assumption that the Secretary of State was required to make a deportation against the appellant by reason of section 32(5) of the 2007 Act. But the issue raised in the present appeal was not considered and the decision in the case does not affect it.

The final matter to consider is the Secretary of State’s policy relating to the deportation of Irish nationals. If I am right that, by reason of exception 3, the duty in section 32(5) of the 2007 Act to make a deportation order in respect of a foreign criminal does not apply to EEA nationals and that the deportation of EEA nationals has continued to be governed by the 2006 Regulations (or now by the replacement 2016 Regulations), the lawfulness of the policy is not affected by anything in the 2007 Act. The Secretary of State was entitled to adopt a policy as to the exercise of discretion both in relation to the taking of a decision to remove an EEA national under regulation 19(3)(b) of the 2006 Regulations and in relation to the making of a deportation order under section 5 of the 1971 Act when such a decision has been taken. The policy adopted with regard to Irish nationals has a perfectly rational basis to it, but in any event the only issue before us concerns its compatibility with the 2007 Act.

For those reasons I would dismiss the appeal.

I agree.

I also agree.