Royal Courts of Justice
Strand, London, WC2A 2LL
Before:
THE HONOURABLE MRS JUSTICE LANG DBE
Between:
THE QUEEN on the application of DAHA ESSA | Claimant |
- and - | |
(1) UPPER TRIBUNAL (IMMIGRATION & ASYLUM CHAMBER) (2) SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendants |
Mr R. Drabble QC & Mr R. Khubber (instructed by Irving & Co. Solicitors) for the Claimant
Mr J. Hall (instructed by the Treasury Solicitor) for the Second Defendant
The First Defendant did not appear
Hearing dates: 24 May 2012
Judgment
Mrs Justice Lang:
The Claimant applies for judicial review of the decision of the Upper Tribunal (Immigration and Asylum Chamber) (“UTIAC”), on 29 July 2011, refusing him permission to appeal from the determination of the First Tier Tribunal (Immigration and Asylum Chamber) (“FTT”), promulgated on 18 April 2011, which dismissed his appeal against a deportation order made by the Second Defendant.
On 12 January 2012, at a contested renewal hearing, Mitting J. granted the Claimant permission to apply for judicial review, accepting that his claim fulfilled the conditions set out in R (Cart) v Upper Tribunal & Ors [2011] UKSC 28; [2011] 3 WLR 107, namely, the second appeal test contained in CPT Part 52.13(2):
“(a) the appeal would raise an important point of principle of practice; or
(b) there is some other compelling reason for the Court of Appeal to hear it.”
Mitting J. did not limit the grounds upon which he granted permission to apply for judicial review. It was common ground before me that, once a Claimant had satisfied the court at permission stage that the second appeal test had been satisfied, he was not required to go on to satisfy the court hearing the substantive judicial review that the second appeals test applied, in order to obtain substantive relief.
At the hearing before me, Mr R. Drabble QC for the Claimant did not pursue the ground that the Upper Tribunal erred in law in refusing to hold an oral hearing of the application for permission.
History
The Claimant, whose date of birth is 1 October 1988, is now aged 23.
He is a Somali by birth, but he is now a Dutch national. He moved, with his family, to the Netherlands in 1989 when he was approximately 8 months old. He and his parents and siblings have Dutch passports.
In July 2001, when the Claimant was 12 years old, he moved with his mother and two of his sisters to live in the UK.
Between 2001 – 2005, he attended school at the Bethnal Green Technology College. He then continued his studies at the Tower Hamlets Sixth Form College and the University of East London.
He has the following criminal convictions:
22 June 2006, Thames Juvenile Court, handling stolen goods, sentenced to a fine and a referral order for 6 months.
March 2007, Thames Magistrates Court, failing to surrender to custody, sentenced to a fine.
23 April 2008, Snaresbrook Crown Court, robbery, sentenced to 5 years detention.
The robbery was committed on 14 January 2007. Whilst on a train the Claimant approached a lone passenger and threatened him with a 6 to 7 inch bladed knife and stole his valuables. The sentencing judge described it as “very frightening” for the victim.
In October 2010, on completion of the custodial element of his sentence, he was transferred to immigration detention. He was granted bail on 7 February 2011.
On 20 November 2010, the Second Defendant sent a detailed decision letter to the Claimant informing him that he was to be deported pursuant to regulation 19(3)(b) Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”), on the grounds of public policy/public security. The Second Defendant had concluded that his deportation would be in accordance with regulation 21 of the EEA Regulations and Article 8 ECHR.
The Claimant appealed to the FTT, which dismissed his appeal on 18 April 2011, finding that the Second Defendant’s decision was in accordance with the EEA Regulations and did not breach Article 8.
The Claimant was refused permission to appeal by the FTT. He renewed his application to the Upper Tribunal. Permission was refused on 29 July 2011.
The decision of the Upper Tribunal
Section 11 Tribunals, Courts and Enforcement Act 2007 (“TCEA 2007”) grants a right of appeal, with permission, on any point of law arising from a decision made by the FTT, other than an excluded decision.
The President of UTIAC, Blake J., has issued a Guidance Note on permission to appeal under paragraph 7 of Schedule 4 to the TCEA 2007. It is not a source of law, nor is it intended to be “an authoritative statement of law” but “it is intended to promote consistent and high standards in making such decisions” (paragraph 1). Relevant extracts are set out below:
“8. Appeals come to the FTT in a variety of circumstances, some in relation to comparatively ordinary questions such as family visit visas, and others dealing with claims to international protection in the UK under the Refugee Convention, the European Convention on Human Rights and subsidiary protection under the EU Qualification Directive. Wherever life, limb or liberty may be placed in jeopardy or important human rights may not be respected, the approach of the higher courts on judicial review has been to scrutinise anxiously the decision below to ensure that it is in no way flawed. Judges deciding whether to grant permission to appeal should adopt no less stringent an approach (in the context of “second applications”, a refusal of permission is final and so the application may be the last opportunity for a judicial remedy). Other important types of case concern claimed rights under the EU Treaties and the secondary legislation, and deportation appeals.
9. It is reasonable to expect a professional representative to set out the basis of the application for PTA with an appropriate degree of particularity and legibility, but lack of skill or pressure of time may lead to a clear point not being identified. Where there may be a duty to consider points that are Robinson obvious (see R v Secretary of State for the Home Department, ex p Robinson [1997] 3 WLR 1162) there is power to consider any other point arising from the decision if the interests of justice so require.
12. Judges will be familiar with established guidance on what constitutes an error of law: see e.g. R(Iran) [2005] EWCA Civ 982 and will be aware of subject-specific applications: e.g. that it will normally be an error of law not to follow a starred or country guidance (‘CG’) case. It must always be recalled, however, that in dealing with applications for PTA Judges are concerned only with whether there is an arguable error of law, not whether the error is made out: see below para 35.
13. There are obvious limits to the circumstances when PTA should be granted: -
a. A complaint with an assessment of facts that it was legitimate for the FTT Judge to make (even applying the reasonable degree of likelihood approach applicable to material aspects of protection claims) cannot normally be characterised as a matter of law but see as in E&R [2004] EWCA Civ 49.
b. Whilst disregard or misstatement of evidence that was placed before the FTT may amount to an error of law, or a failure to act fairly, the submission of further evidence following the hearing to contradict a finding (even if it would have been admissible in the original proceedings) cannot usually be said to be an error of law (see CA [2004] EWCA Civ 1165), unless the evidence is submitted to demonstrate unfairness or the decision is based on an entirely false factual hypothesis (see as in E&R [2004] EWCA Civ 49) or concerns questions of jurisdictional fact.
c. An error of law on a topic that is completely irrelevant to the substance of the decision in hand is unlikely to justify the grant of permission, unless the point itself is of some general importance in the context of immigration and asylum appeals and deserves further consideration on that basis alone.
d. A point of law that is not arguable whether because the statute is clear, the contention extravagant and unsustainable or there is stable, binding precedent of the higher courts, is unlikely to justify the grant of permission. However, if there is a case for the UT/higher courts to reconsider the point in issue, permission should be granted as a refusal of permission does not give rise to a right of appeal to the Court of Appeal. It will be rare for a judge to decide to grant PTA because he or she considers a binding precedent may be reviewed by a superior court with power to do so. But this may be appropriate in circumstances where, if the matter were before the High Court, the terms of s.12 of the Administration of Justice Act 1969 were engaged and the question of permission to appeal could be leap-frogged to the Supreme Court.
14. Whilst the existence of reasonable prospects of success is a relevant criterion to apply to the grant of permission, it is not a precondition for its grant. A point of law may be of such general importance as to justify the grant of leave even though the prospects of the appellant succeeding may not be substantial. In a case of doubt, and particularly where para 13(1)(c) or (d) above may be engaged, it is advisable to consult the President or Vice President before reaching a conclusion on PTA. Such cases will be rare and would require the point to be identified clearly in the grounds. Caution should be exercised before putting the parties to the expense of contesting an appeal that would be bound or likely to fail on some independent ground. Regard should be had to the overriding objective in r.2 of the UT Rules 2008 (“to deal with cases justly and fairly”) when considering such a course.
15. Immigration decisions may be based on failures to comply with more than one requirement of the relevant rules or regulations. An unarguable failure to comply with one requirement may determine the fate of the appeal, but a judicial decision on another aspect may be of importance and the UT may wish to use the opportunity of the application to review the existing jurisprudence on the topic, to address frequently arising problems or give guidance in a reported case on a novel or important issue.
16. On the other hand, PTA should only be refused on the basis that the error was immaterial, if it is a plain case that the error could have made no difference to the outcome. The facts must be capable of bringing the case home. Disputes about materiality are best left to the appeal process itself rather than summarily determined by refusal of permission.
Senior Immigration Judge Kekic decided that permission to appeal should be refused for the following reasons:
“The appellant is a Dutch citizen of Somali origin whose appeal against deportation was dismissed by the Tribunal. He had a string of criminal offences culminating in a five year detention order for robbery of a passenger on a train who was threatened with a hunting knife. Whilst in prison on the last occasions he received nine adjudications.
The same five grounds put to the First-tier Tribunal are repeated here – a failure to follow a structured approach to expulsion on public policy grounds, a failure to take relevant factors into account, errors in giving undue weight to certain factors and to the decision in Bulale and errors in the proportionality findings. The appellant has a mother and siblings here but his father and a sister remain in the Netherlands. The appellant speaks Dutch.
The higher threshold was in the minds of the Tribunal and contrary to what is argued in the grounds it was mentioned at paragraphs 5, 56, 63 and 70.
The Tribunal considered the serious nature of the last offence and the fact that the appellant had continued to deny responsibility for the crime until recently. Evidence showed that he would pose a high risk of causing serious harm to others after release. The Tribunal found that the appellant did not have strong ties with his family here and would be able to maintain contact with them by way of family visits given the proximity of the Netherlands and the cheap travel available. It noted that the appellant had lived there for many years and was acquainted with the culture and spoke the language. There is full consideration of all the factors pleaded for the appellant and it was for the Tribunal to decide what weight should be give to the evidence it considered.
No arguable error of law has been identified in the grounds.”
Grounds of challenge
The basis of the Claimant’s application for judicial review was that UTIAC erred in law by failing to recognise arguable errors of law in the FTT’s determination, which justified the grant of permission to appeal.
Principal ground
The Claimant’s principal criticism of the FTT was that it failed to consider the relevance of the greater potential for the Claimant’s rehabilitation in the host state (the UK) rather than in the country of origin (the Netherlands) as required under regulation 21 EEA Regulations, and relevant case law.
The Defendant submitted that there was no requirement under Directive 2004/38/EC or the EEA Regulations to consider the relative rehabilitation potential as between the UK and the Netherlands. Regulation 21 only required the FTT to take into account the extent of the Claimant’s integration in the UK, and his links with the Netherlands, which it had done. Mr Hall relied upon the terms of the Treaty and the relevant case law.
The Defendant also submitted that the FTT had fully considered the issue of rehabilitation.
The Claimant’s skeleton arguments also included broader submissions to the effect that the FTT should have considered whether removal to the Netherlands was in the interests of the EU as a whole, since it merely transferred the risk of re-offending from one EU state to another. Mr Drabble did not pursue these submissions at the hearing, although they were not formally abandoned.
The Defendant’s response was that, under the terms of the Treaties, the Directive and the Regulations, the UK was entitled to deport a national of another EU state, without regard to the potential impact on the receiving state, provided the statutory criteria for deportation had been met.
Further grounds
The Claimant also submitted that the FTT had erred in:
failing to give adequate consideration to the relevance of the Claimant’s family life in the UK
failing to appreciate and apply the higher threshold for deporting a person who had resided for 5 years in the host state;
giving undue weight to the seriousness of the index offence;
reaching conclusions on the risk of re-offending which were contrary to the evidence;
placing excessive reliance on the decision of the Court of Appeal in Bulale v Secretary of State for the Home Department [2008] EWCA 806, where the evidence was materially different to this case;
The Defendant submitted that it was apparent from the determination that the FTT had given careful consideration to all relevant matters. The FTT’s findings of fact, and its application of the relevant legal principles to those facts, did not disclose any error of law.
Statutory framework
The Consolidated Version of the Treaty on European Union (“TEU”) provides:
“Article 3(2)
The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime.
Article 3(3)
The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress, and a high level of protection and improvement of the quality of the environment. It shall promote scientific and technological advance.
Article 4(2)
The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”
The Treaty on the Functioning of the European Union (“TFEU”) provides:
“Article 18
Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited.
Article 20
1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.
2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:
(a) the right to move and reside freely within the territory of the Member States;
(b) …..
These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder.
Article 21
1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.”
Directive 2004/38/EC of 29 April 2004 states:
“Having regard to the Treaty establishing the European Community, and in particular Articles 12, 18, 40, 44 and 52 thereof…..
Whereas:
(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.
(2)The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.
……
(17) Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives in the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.
….
(20) In accordance with the prohibition of discrimination on grounds of nationality, all Union citizens and their family members residing in a Member State on the basis of this Directive should enjoy, in that Member State, equal treatment with nationals in areas covered by the Treaty, subject to such specific provisions as are expressly provided for in the Treaty and secondary law.
….
(22) The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security or public health. In order to ensure a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their family members may be denied leave to enter or may be expelled, this Directive should replace Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals, which are justified on grounds of public policy, public security or public health.
(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.
(24) Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protections against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public scrutiny, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. In addition, such exceptional circumstances should also apply to an expulsion measure taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child, of 20 November 1989.
……
CHAPTER VI
Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health
Article 27
General principles
1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
3. In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned on its territory or from the date of reporting his/her presence within the territory, as provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months.
Article 28
Protection against expulsion
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 on 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.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:
(a) have resided in the host Member State for the previous ten years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child 20 November 1989.
Article 33
Expulsion as a penalty or legal consequence
1. Expulsion orders may not be issued by the host Member State as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of Articles 27,28 and 29.”
Directive 2004/38/EC was implemented into domestic law by the EEA Regulations 2006. The relevant regulations are:
“15. Permanent right of residence
(1) The following persons shall acquire the right to reside in the United Kingdom permanently –
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
19. – Exclusion and removal from the United Kingdom
(1B) If the Secretary of State considers that the exclusion of an EEA national or the family member of an EEA national is justified on the grounds of public policy, public security or public health in accordance with regulation 21 the Secretary of State may make an order for the purpose of these Regulations prohibiting that person from entering the United Kingdom.
21. – Decisions taken on public policy, public security and public health grounds
(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 decisionl; or
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(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 interest 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.”
Conclusions
Principal ground
UK courts are bound by Community law, including the judgments of the European Court of Justice, and must interpret the EEA regulations in accordance with it, and give effective redress for violations of Community law. See European Communities Act 1972, sections 2 and 3; R. v Secretary of State for Transport ex parte Factortame Ltd (No. 2) [1991] 1 AC 603; Autologic Holding plc v Inland Revenue Commissioners [2004] EWCA Civ 680, per Peter Gibson LJ at [25]; R v. Secretary of State for the Home Department ex parte Gallagher [1996] 2 CMLR 851, per Lord Bingham at [10].
TEU, TFEU and Directive 2004/38/EC confirm the fundamental right of citizens of the European Union to move and reside freely within the member states. However, the right of free movement of EU citizens is subject to limitation and conditions. In particular, member states are entitled to deport EU citizens on grounds of public policy, public security or public health in certain circumstances.
Directive 2004/38/EC introduced significantly greater protection for an EU citizen faced with the threat of deportation from his host state, in comparison with the Directives it replaced. In particular, higher threshold tests for long term residents; more detailed conditions to be fulfilled; and a list of factors to be taken into account before a decision to deport can be made.
In order to further the aim of enabling EU citizens to settle permanently in the host country of their choice, those who have acquired a permanent right of residence under regulation 15 may not be deported “except on serious grounds of public policy or public security” (regulation 21(3)). The Claimant had acquired such a right by virtue of continuous residence for a period of at least 5 years. A higher tier of protection is afforded to those who have resided in the host country for at least 10 years in which case deportation “may not be taken except on imperative grounds of public security” (regulation 21(4)). This provision did not apply to the Claimant. The meaning of these provisions was considered by the Court of Appeal in LG (Italy) v. Secretary of State for the Home Department [2008] EWCA Civ 190 and by the Senior President, Carnwath LJ, in the AIT in LG & CC (Italy) v Secretary of State for the Home Department [2009] UKAIT 00024.
Before deciding to deport any EU citizen, the decision-maker must apply the “principles” (in effect, conditions) in Regulation 21(5) and take into account the considerations set out in Regulation 21(6). Central to this case is the principle in regulation 21(5)(a) that the decision “must comply with the principle of proportionality”. Regulation 21(6) requires the decision maker to take account of:
“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 this country of origin.”
Mr Hall submitted that the origin and basis of the greater protection afforded to citizens by the Directive was the case law of the European Court of Human Rights (“ECtHR”) on the application of Article 8 ECHR to deportations. These cases did not take account of the relative potential for rehabilitation between the host state and the receiving state, and so no such concept could properly be read into regulation 21(6). In support of this submission, he referred to paragraph 7.135A in Macdonald’s Immigration Law and Practice, 8th ed. 2010 stating that the list of factors in regulation 21(6) (drawn from Article 28 of the Directive) “is reminiscent of” the ECHR decision in Boultif v Switzerland [2001] ECHR 54273/00. He referred to the judgment of the ECtHR in Uner v The Netherland [2007] 45 EHRR 14 which helpfully summarised the factors under Article 8 at [57], [58]:
“57. Even if Art.8 of the Convention does not therefore contain an absolute right for any category of alien not to be expelled, the Court’s case law amply demonstrates that there are circumstances where the expulsion of an alien will give rise to a violation of that provision (see, for example, the judgments in Moustaquim v Belgium, Beldjoudi v France and Boultif v Switzerland, cited above; see also Amrollahi v Denmark, no.56811/00, July 11, 2002; Yilmas v Germany, no.52853/99, April 17, 2003; and Keles v Germany, 32231/02, October 27, 2005). In the case of Boultif the Court elaborated the relevant criteria which it would use in order to assess whether an expulsion measure was necessary in a democratic society and proportionate to the legitimate aim pursued. These criteria, as reproduced in [40] of the Chamber judgment in the present case, are the following:
- the nature and seriousness of the offence committed by the applicant;
- the length of the applicant’s stay in the country from which he or she is to be expelled;
- the time elapsed since the offence was committed and the applicant’s conduct during that period;
- the nationalities of the various persons concerned;
- the applicant’s family situation, such as the length of the marriage, and other factors expressing the effectiveness of a couple’s family life;
- whether the spouse knew about the offence at the time when he or she entered into a family relationship;
- whether there are children of the marriage, and if so, their age; and
- the seriousness of the difficulties which the spouse is likely tot encounter in the country to which the applicant is to be expelled.
58. The Court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:
- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and
- the solidity of social, cultural and family ties with the host country and with the country of destination.”
However, the ECJ in Land Baden-Wurttemberg v Tsakouridis [2011] 2 CMLR 11 did take account of the risk of compromising the successful rehabilitation of the Union citizen by deporting him from the host State when considering article 28 of the Directive, in the case of a convicted drug trafficker who was expelled from Germany where he had been born and resided for more than ten years.
The Advocate-General expounded the principle in detail in his Opinion:
“The horizontal nature of the fundamental principles of criminal law
AG46 The particular features of the present case require not only that the decision contemplated ... comply with the conditions laid down by Directive 2004/38, but that, since it is a decision taken as a consequence of a criminal conviction and after it has been enforced, it observe the fundamental principles concerning the function of criminal sanctions.
AG48 The idea, mooted since ancient times by theologians, philosophers and theorists, that a criminal sanction must contribute to the rehabilitation of the convicted person, is nowadays a principle which is shared and confirmed by all modern legal systems, including those of the Member States. Also, in 2006, the Council of Ministers adopted a recommendation on the European Prison Rules which provides that “[a]ll detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty”. The International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly and signed in New York on December 16, 1966, also provides, in art.10(3), that [t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.”
AG49 The European Court of Human Rights has also held that:
“[o]ne of the essential functions of a prison sentence is to protect society, for example by preventing a criminal from re-offending and thus causing further harm. At the same time, the Court recognises the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment. From that perspective it acknowledges the merit of measures – such as temporary release – permitting the social reintegration of prisoners.”
AG50 Observance of the principle that criminal sanctions must have the function of rehabilitation is indissociable from the concept of human dignity and, as such, I am of the opinion that it belongs to the family of general principles of Union law.
AG94 In the present case, which concerns an expulsion decision applicable on the expiry of the criminal sanction imposed, I consider that the proportionality test 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 re-offending.
AG95 In my view, when that 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 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.
AG96 In the main proceedings, the classification of the offence and the nature of the sanction imposed are indicators to be taken into account in assessing the fundamental nature, for society, of the interest protected. Similarly, the sanction imposed compared to the maximum possible sentence and Mr Tsakouridis’s involvement in the drug-trafficking which led to his sentence are, in my view, further objective factors which will help the national court to determine the degree of seriousness of his conduct. Conversely, in order to achieve that fair balance, it is also necessary to weigh up Mr Tsakouridis’s personal circumstances, such as, for example, the fact that his family resides in the host Member State, that he carries on an economic activity in that State and that he has links with his State of origin, as well as the effects produced or the information provided, regarding the degree of reintegration or the risk of re-offending, by the aid, advice and surveillance measures which accompanied his conditional release. The failure of those measures may justify the envisaged expulsion.
AG99 Furthermore, where, as in the present case, the expulsion decision is taken on the expiry of the criminal sanction imposed, the competent national authority must state in what respect that decision is not contrary to the rehabilitation function of the sanction.”
The Court expressly endorsed paragraph 95 of the Advocate General’s Opinion at paragraph 50 of its judgment:
“50 In the application of Directive 2004/38, a balance must be struck more particularly between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned, assessed if necessary at the time when the expulsion decision is to be made (see, inter alia, Orfanopoulos v Land Baden-Wurttemberg (C-482/01 & C-493/01) [2004] ECR I-5257; [2005] 1 CMLR 18 at [77]–[79]), by reference in particular to the possible penalties and the sentences imposed, the degree of involvement in the criminal activity, and, if appropriate, the risk of reoffending (see, to that effect, inter alia, R v Bouchereau (30/77) [1977] ECR 1999, [1977] 2 CMLR 800 at [29]), on the one hand, and, on the other hand, the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, which, as the A.G. observes in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general .” (emphasis added).
I cannot accept Mr Hall’s submission that the Court rejected the Advocate General’s Opinion on this issue, bearing in mind the express reference to paragraph 95 of his Opinion and the pithy summary of his conclusion.
Moreover, neither the Opinion nor the judgment suggests that the principle is limited to a citizen who has acquired ten years residence.
It was open to the ECJ to interpret the Directive beyond the scope of earlier ECtHR case law on Article 8. The Directive and Article 8 are directed at different issues, despite a considerable degree of overlap. Although both are intended to protect individual rights against undue interference by the state, the Directive’s starting point is the implementation of collective objectives designed to benefit the EU as a whole i.e. freedom of movement, social cohesion, and a successful internal market:
“Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union...” (Directive, recital, clause 17)
“The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty.” (Directive, recital, clause 2)(emphasis added)
“The Union shall establish an internal market. It shall work for the sustainable development of Europe based on balanced economic growth and price stability, a highly competitive social market economy, aiming at full employment and social progress...” (TEU, Article 3(3))(emphasis added).
The ECJ in Ministerul Administraliei i Internelor v Jipa [2008] 3 CMLR 23, reiterated the well-established principle, at [23]:
“while Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from era to another, the fact still remains that, in the Community context and particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the Community institutions..”
See also R v Bouchereau [1976] 1 QB 732.
Thus, in my judgment, a decision to deport made pursuant to the Directive is likely to require consideration of factors which are not in play when considering the application of Article 8.
I accept Mr Hall’s point that the ECJ in Orfanopoulos v Land Baden-Wurttemberg [2005] 1 CMLR 18, a case decided under the earlier Directive 64/221, did not refer to or adopt the Advocate General’s view, expressed in paragraph AG64 of his Opinion, that “the national court should consider where re-socialisation is most likely to be achieved”. It suggests to me that the principle has evolved gradually, and it has now been adopted by the Court in its interpretation of the 2004 Directive, which places much greater emphasis than the 1964 Directive on the desirability of long term residents being allowed to remain in the host state, even after commission of criminal offences.
The Court of Appeal has indicated that the availability in the host country of support which may increase the likelihood of successful rehabilitation is a factor to be taken into account when assessing proportionality under the EEA regulations. In Batista v Secretary of State for the Home Department [2010] EWCA Civ 896, Carnwath LJ said, at [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 Miss Deane in this country may have been fragile, as the tribunal thought, 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 what the tribunal saw as his likely drift back to crime. There may be room for argument as to the relevance of such points under the Directive, but at present advised I see no reason in principle why they may not be taken into account in the overall balance of proportionality. It will be a matter for tribunal to consider whether they have any materiality in the present case.”
In my judgment, the judgment of the ECJ 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 criminal 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, as illustrated by Batista where the Court of Appeal considered that in the UK the claimant’s English girlfriend might provide the support which he needed to avert a “drift back to crime”, whereas such support would be “practically non-existent” in Portugal.
Turning to the FTT’s determination in this case, it addressed the issue of rehabilitation in some detail. First, it set out the evidence which was relevant to the issue of rehabilitation in the following paragraphs:
paragraph 17: the Claimant’s ambition to train as a plumber, with financial support from his siblings, and then obtain employment;
paragraph 21: the Claimant’s evidence that there was no one in the Netherlands to care for him or provide him with a home;
paragraph 22: the Claimant’s evidence that he had matured, would not re-offend and wanted to re-build his life in this country. He would live with his mother and two sisters. He reported to the Probation Service once a week;
paragraph 25: the Claimant’s admission of the details of the index offence, that he felt very sorry for the victim, he had let down his family, and that he was no longer associating with people who had been a bad influence on him;
paragraphs 26 – 47: evidence from the Claimant’s mother, siblings and aunt confirming:
their practical, emotional and financial support for the Claimant;
the positive changes in the Claimant’s attitude, who was now more mature and focused;
the difficulties he would face in returning to the Netherlands;
the impracticality of other family members re-locating to the Netherlands or visiting him there, because of lack of funds.
Its conclusions were as follows:
“58. We also note that in addition to consider the provisions of paragraph 21 of the Regulations, we must also consider whether the making of the deportation order is a breach of the appellant’s rights under Article 8 of the ECHR. We note that the issue of proportionality is a major, if not determining, factor both under the Regulations and also under Article 8.
59. Bearing all these factors in mind, we note that the appellant has been convicted of a very serious crime. The offence took place as darkness was approaching in an enclosed space on a moving vehicle, namely on a train, and the sentencing judge found that the appellant had threatened his victim with a hunting knife which indicates a high degree of planning. The knife could have inflicted a fatal wound and furthermore, bearing in mind that he appellant stole the victim’s driving licence, this had the result that the victim might fear for his safety within his own home, as well as the safety of other residents at his address. We also note that the appellant denied having committed the offence by pleaded not guilty at his trial and it was only very recently when interviewed by Ms Davies, that he finally admitted that he had been guilty of this shocking offence.
60. We note that the appellant has not shown any significant sympathy for Mr Newport and whilst he claims to have applied to participate in a Victim Awareness Course, he did tell Ms Davies when interviewed by her that he only applied for the programme as he was told by other prisoners that by joining the course he would show that he wanted to change.
61. We also note that several adjudications were made against the appellant whilst he was in prison for various reasons, some more serious than others, but overall, they show that the appellant was not prepared to fully accept the prison regime.
62. We note from the NOMS report that the Probation Service believe that the appellant is at low risk of reoffending but at high risk of causing serious harm to others after release. With regards to these risks, the conclusions of Ms Davies are not entirely clear. On one hand she states that there is a moderate risk of violent relapse to crime but she also mentions in her extensive report where she states that there is no immediate risk of violence. However unclear these sections of her report are, it is quite clear that she does accept, as obviously accepted by the NOMS Report, that there is indeed a certain risk of the appellant relapsing into crime and causing serious harm to others.
63. With these findings in mind, we have concluded that the respondent was correct in concluding that there are serious grounds of public policy and public security which justified the decision being taken under the requirements of paragraph 21(3) and (5) of the Regulations.
64. However, as mentioned above, the principles set out in sub-paragraph 21(5) must also be considered by the respondent, the main one being the principle of proportionality which, as mentioned above, is also relevant with regards to the Article 8 consideration. We note that each one of the witnesses stressed in their evidence that family members of the appellant enjoy a strong family relationship, that it is impractical for the family to relocate to the Netherlands, that visits could only be extremely infrequent, and that the appellant would have no means of support in Holland. We appreciate that it is impractical to expect the appellant’s elderly mother and his siblings to relocate to the Netherlands at this stage in their lives when they are well settled in this country and where the appellant’s siblings all have either family of their own, or careers or employment. However having considered the evidence very carefully, we are not satisfied that the ties between the appellant, his mother and his siblings are as strong as they all tried to make out to us. We note that the appellant has eight siblings and he is in contact with seven of them. Of those seven only three attended the hearing and a fourth sibling lodged a statement but did not attend the hearing. Furthermore, three of the siblings not only did not attend the hearing, but have also failed to support the appeal in any way whatsoever. We also note that when the father of the appellant made one of his infrequent visits to the United Kingdom under a year ago, his son Abdiraham Essa did not make the slightest effort to meet up with him which would not have been the case if this family were so closely attached to each other. We also do not accept that if the appellant relocated to the Netherlands, his mother and siblings would have great difficulty in continuing their family relationship. Obviously for that relationship to continue and develop it would be ideal if the appellant were to remain in this country but on the other hand telephone communication is available at a very low cost, and other modern means of communication are obviously available. Furthermore, we do not believe that visits would be so difficult or expensive. Holland is relatively close to the United Kingdom and travel there is relatively cheap with ample opportunities for day visits. Whilst the appellant claims that it would be very difficult for him to rebuild his life in Holland, and in this he is supported by his siblings, we do not agree. He told us that he speaks Dutch and having lived there in his junior years, is acquainted with the culture. The Netherlands are part of the European Economic Area and we do not accept that the appellant would have difficulty in training as a plumber and electrician in that country where there is obviously a demand for the services of such trained workmen.
65. We note that the appellant is receiving financial support from two of his siblings and emotional support from four of them. There is no reason why such financial support cannot be continued if the appellant resides in Holland and emotional support can be provided by way of telephone calls, letters, and the use of other modern means of communication as mentioned in the previous paragraph.
66. We also note that the appellant is currently complying fully with his bail conditions and is in constant touch with his mother and siblings, living in his mother’s home, and seeing or at least speaking to all his siblings on a virtual daily basis. However the appellant is obviously conducting himself currently in this exemplary manner in order to boost his chances of being allowed to remain. We are not satisfied that if the appellant is allowed to remain in the United Kingdom, he will continue to conduct himself in this manner and follow guidance which his siblings might give him.
67. We have therefore concluded that bearing in mind the conduct of the appellant, the nature of the index offence, the appellant’s family circumstances and his relationship with family members, we do indeed consider that all the relevant factors satisfy us that removal is indeed proportionate.
68. In his skeleton argument, Mr Khubber has referred us to the cases of Mehemi v France (2004) 38 EHRR 16, 301 and Sezen v Netherlands where in both cases the European Court has stressed that to split up a family is an interference of a serious order and in the latter case the court ruled that a breach of Article 8 had been established where, even though the appellant had a serious criminal conviction of drug trafficking involving heroin, nevertheless removal would be to a disproportionate interference with family life. We are also aware of the judgment of the House of Lords in the case of Beoku-Betts [2008] UKHL 00039 where it was held that the impact of removal on all relevant family members must be considered under the Article 8 exercise. We are also aware of all the factors listed in the case of Uner and Maslov and also in Boultif which must be considered when assessing whether an expulsion measure is to be taken and we fully appreciate that the appellant has lived in the United Kingdom for several years, does have family life in this country and is well integrated in United Kingdom life. However we repeat that we do believe that the seriousness of the appellant’s crime when considered in connection with our observations regarding his links with family members and the other matters listed above, all make removal entirely proportionate.”
In my judgment, the determination shows that the FTT did consider whether a decision to deport might prejudice the prospects of the Claimant’s rehabilitation and it weighed that risk in the balance when assessing proportionality under regulation 21(5)(a), as the Claimant’s counsel invited it to do.
In paragraph 66, the FTT rejected the evidence of the Claimant and his family that the good influence of his mother and siblings would prevent him re-offending in future. Plainly the Claimant did not make a good impression on the FTT as it thought that he was only complying with his bail conditions and staying out of trouble in order to boost his chance of being allowed to remain in the UK. In this context, it is also relevant to note that the FTT was sceptical about the Claimant’s evidence that he fully acknowledged his offence and felt very sorry for the victim (paragraphs 59 (final sentence), 60). It also observed that he had a poor prison record, with a number of adjudications (paragraph 61). It was, of course, aware from the evidence that his mother and siblings had not been able to prevent him from offending in the past – this point is recorded at paragraph 7. The FTT also concluded that the ties between the Claimant and his family were not as strong as the witnesses claimed – essentially, it found that they were not entirely truthful or reliable witnesses.
As the FTT had the benefit of hearing the Claimant and his family members give evidence, it was better placed than an appellate or review court to make these findings, and I consider that this court should be slow to interfere with them, unless they are demonstrably wrong. It followed from the FTT’s findings that it did not accept the principal plank of the Claimant’s submission on rehabilitation, namely, that the support of his family in the UK improved the prospects of successful rehabilitation and reduced the risk of re-offending.
Although the FTT appears to have accepted that the Claimant would not be supported by his father or sister who resided in the Netherlands, the FTT went on to find, in paragraph 64, that the Claimant could rehabilitate himself in the Netherlands just as he claimed that he intended to do in the UK:
he could “re-build” his life in the Netherlands;
he could train as a plumber/electrician and there would be work available for him once qualified;
he spoke Dutch and was familiar with the culture having lived there until the age of 12;
his siblings could provide financial support for him to live and train in the Netherlands;
his family could provide emotional support to him via telephone and other modern means of communication;
travel to the Netherlands was relatively quick and cheap and the FTT did not accept that the family would not be able to afford to visit him.
I accept that the determination did not distinguish between Article 8 and the Regulations on the issue of proportionality, but I consider 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, particularly when the Claimant’s skeleton argument also merged the relevant factors under both Article 8 and the Regulations. The FTT was aware of the distinction since the point was addressed in the Claimant’s skeleton argument.
In conclusion, I do not consider that the FTT determination disclosed the error of law alleged by the Claimant. Therefore the Upper Tribunal did not err in law in refusing permission on this ground.
The Claimant also submitted in his skeleton argument that the FTT should have considered whether removal to the Netherlands was in the interests of the EU as a whole, since it merely transferred the risk of re-offending from one EU state to another.
In so far as it goes beyond the issue of rehabilitation which I have already considered, I have not been able to find support in the authorities for this submission. Mr Drabble cited in support the observations of Carnwath LJ in VP (Italy) v Secretary of State for the Home Department [2010] EWCA Civ 806, at [7]:
“It is important to note at this stage that what we are talking about here is expulsion of citizens of EU states from one state to another state. One can see, therefore, why even at the lowest category the threshold is set reasonably high and there needs to be a sufficiently serious threat affecting one of the fundamental interests of society. That no doubt reflects the view that in a case like the present, where the respondent has lived in this country very many years and there is no remaining link with his country of birth (in this case, Italy), there is no obvious reason for exporting the problem from one European country to another unless there is some very serious issue.”
In my judgment, Carnwath LJ’s observations are consistent with Mr Hall’s submission that the ‘EU interests’ issue identified by the Claimant has already been comprehensively addressed in the drafting of the Directive. The Directive strikes a balance between the freedom of an individual member state to expel an unwanted citizen and the interests of the EU as a whole. The high thresholds for expulsion, and the stringent criteria to be applied, reflect the EU’s intention that expulsion between EU states should only take place in very serious cases. The Directive does not require the decision maker to re-assess the balance of competing interests between individual member states and the EU on every occasion when a decision to expel is made. Indeed it would be difficult for decision makers across the EU to do so in a consistent manner. In my view, if the Directive did require decision makers to address this issue, it would have made an explicit reference to it. Particularly since the other criteria which the decision maker has to consider are set out in detail in the Directive.
Further grounds
The Claimant submitted that the FTT failed to gauge the strength of the Claimant’s family ties fairly. As I have already explained above, under Ground 1, the FTT did not fully accept the evidence of the Claimant and his family members on this issue. The Claimant has not been able to establish any error of law on the part of the FTT in reaching its conclusions.
The Claimant also submitted that the FTT failed to give adequate consideration to the impact of his removal on family members. The FTT gave detailed consideration to the evidence of his mother and siblings, describing how important his continued presence in the UK was to them. However, the FTT did not accept that the family ties were as close as the Claimant and his family contended. Whilst acknowledging that the family relationships would continue most easily in this country, it concluded that their family relationships could also be maintained if the Claimant returned to Holland, by means of visits, telephone calls and other modern means of communication.
The FTT weighed the family relationships in the balance when assessing proportionality. It concluded, at paragraph 67:
“We have therefore concluded that bearing in mind the conduct of the appellant, the nature of the index offence, the appellant’s family circumstances and his relationship with family members, we do indeed consider that all the relevant factors satisfy us that removal is indeed proportionate.”
The Claimant has not succeeded in demonstrating any error of law in this conclusion.
The Claimant alleged that the FTT failed to appreciate and apply the higher threshold test in regulation 21(3), applicable to persons who have resided for at least 5 years in the host state.
The FTT directed itself correctly in law. In paragraph 56 of its determination, the FTT set out the higher threshold test in regulation 21(3), namely, “serious grounds of public policy or public security”, and the principles in regulation 21(5). In paragraph 57, it set out Regulation 21(6).
The FTT must have been very well aware that the Claimant qualified for the protection afforded to a person with 5 years residence in the host state, because this issue had to be determined at the beginning of the hearing (see paragraph 5 of the determination).
In applying the law to the facts of the case, the FTT made the following findings:
“59. Bearing all these factors in mind, we note that the appellant has been convicted of a very serious crime. The offence took place as darkness was approaching in an enclosed space on a moving vehicle, namely on a train, and the sentencing judge found that the appellant had threatened his victim with a hunting knife which indicates a high degree of planning. The knife could have inflicted a fatal wound and furthermore, bearing in mind that the appellant stole the victim’s driving licence, this had the result that the victim might fear for his safety within his own home, as well as the safety of other residents at his address. We also note that the appellant denied having committed the offence by pleading not guilty at his trial and it was only very recently when interviewed by Ms Davies, that he finally admitted that he had been guilty of this shocking offence.
60. We note that the appellant has not shown any significant sympathy for Mr Newport and whilst he claims to have applied to participate in a Victim Awareness Course, he did tell Ms Davis when interviewed by her that he only applied for the programme as he was told by other prisoners that by joining the course he would show that he wanted to change.
61. We also note that several adjudications were made against the appellant whilst he was in prison for various reasons, some more serious than others, but overall, they show that the appellant was not prepared to fully accept the prison regime.
62. We note from the NOMS Report that the Probation Service believe that the appellant is at low risk of reoffending but at high risk of causing serious harm to others after release. With regards to these risks, the conclusions of Ms Davies are not entirely clear. On one hand she states that there is a moderate risk of violent relapse to crime but she also mentions in her extensive report that there is a low risk of violence. This letter assessment is contradicted elsewhere in her report where she states that there is no immediate risk of violence. However unclear these sanctions of her report are, it is quite clear that she does accept, as obviously accepted by NOMS Report, that these is indeed a certain risk of the appellant relapsing into crime and causing serious harm to others.
63. With these findings in mind, we have concluded that the respondent was correct in concluding that there are serious grounds of public policy and public security which justified the decision being taken under the requirements of paragraph 21(3) and (5) of the Regulations.
…
70. The Court of Appeal pointed out that it had to be satisfied that Mr Bulale was a present threat to the interests of society and that his past record was not self-sufficient and came to the conclusion that this was indeed the case. Similarly in this case, we are quite satisfied for the reasons stated above that Mr Essa is indeed a present risk to society. The court found that Mr Bulale presented a high risk of reoffending and similarly in this case, although there is not consensus that this appellant represents a high risk of reoffending, nevertheless the NOMS Report does state that there is a high risk of serious harm to others and Ms Davies accepts that there is some risk of reoffending. In that case the Court of Appeal then considered the circumstances surrounding the appellant under the requirements of Regulation 21(5) and concluded bearing all Mr Bulale’s circumstances in mind that removal would indeed be proportionate. We too have adopted a similar approach and for the reasons stated above have also concluded that removal is proportionate.”
In my judgment, these findings and the conclusion do not disclose any error of law. The FTT made a legitimate exercise of judgment in concluding that the criteria in regulation 21 were satisfied.
Mr Drabble submitted that the FTT failed to consider “present risk” as opposed to past convictions, but the FTT, in paragraph 70, expressly stated “we are quite satisfied for the reasons stated above that Mr Essa is indeed a present risk to society”. It is apparent from the determination that the FTT considered very recent psychological assessments of risk, his recent adjudications in prison, as well as forming its own view of the Claimant after hearing him give evidence.
Mr Drabble criticised the FTT’s summary of the independent psychological risk assessment report by Ms Davies, an expert instructed by the Claimant’s solicitors, and submits that the FTT failed to understand that the Claimant had been assessed as a low risk of re-offending. Although the summary in paragraph 62 is somewhat elliptical, the FTT set out a detailed account of Ms Davies’ report earlier in the determination, at paragraphs 50 to 53. I share the view of the FTT that Ms Davies’ report was not entirely clear (paragraph 62) but the FTT fairly summarised her conclusions in paragraph 52 in the following terms:
“In Ms Davies’ summary of risk assessment, she states that there is, in her opinion, a moderate risk of a violent falling back into crime and whilst there is no pattern of violent offending, there is a higher risk of violent behaviour if the appellant is put under pressure from anti-social peers. Those at risk from the appellant’s violent behaviour are members of the general public, particularly adult males but on the other hand, Ms Davies does not consider the appellant to be at any immediately risk of violence and the gravity of any violence is considered to be moderate. Later on the in the report Ms Davies states that in her opinion the indications are that there is a moderate risk of violent relapse into crime at the moment, a risk which is likely to reduce if the appellant remains engaged in offending behaviour work with his probation officer during his licence period. Ms Davies also states that the gravity of any future violence is considered to be moderate but the use of weapons is a possibility given the reported use of a knife in the index offence.”
On the basis of this evidence, the FTT was entitled to conclude, in paragraph 62, that Ms Davies accepted that there was “a certain risk of the Claimant relapsing into crime and causing serious harm to others”. My understanding is that the FTT meant that there was “a degree of risk” that he would relapse into crime. Ms Davies described the risk as “moderate” in her report.
In paragraphs 7, 54 and 62, the FTT accurately stated that the NOMS report recorded a low risk of re-offending but a high risk of causing harm to the public. In paragraph 54, the FTT referred to the assertion in the NOMS report that the Claimant had failed to attend an interview for a victim awareness course, but it also noted that Ms Davies’ report stated that the Claimant had been informed that he was not eligible. The prison records were in evidence before the FTT, including the letter of 12 April 2010 explaining that the Claimant was not eligible for the course because he had been assessed as low risk.
The Claimant has not persuaded me that the FTT misunderstood the contents of these reports, or the assessments as to the risk of re-offending or causing harm.
There is a somewhat clumsy comparison in paragraph 70 between the risk assessments in the case of Bulale and the Claimant’s case, in which the FTT suggested there was a similarity between Mr Bulale’s high risk of re-offending and the Claimant’s “high risk of harm to others” and “some risk of re-offending”. I do not, however, consider that this betrays a lack of understanding or appreciation of the assessments carried out on the Claimant, in the light of the detailed descriptions of the assessments which precede it.
The Claimant submitted that the FTT placing excessive reliance on the decision of the Court of Appeal in Bulale. Although I accept the point that each case turns on its own facts, and there are distinctions to be drawn between Bulale and this case, I do not consider that the FTT placed excessive reliance on Bulale, thereby abdicating its responsibility to decide the Claimant’s case fairly on its own merits. The FTT determination was exceptionally detailed and careful. It recorded the evidence and made its findings, applying the law correctly at each stage. The reference to Bulale comes only at the end of the determination, after it had made its findings. As it observed in paragraph 60, Bulale merely “reinforced” conclusions which the FTT had made on the evidence in the Claimant’s case.
The Claimant also submitted that the FTT gave undue weight to the seriousness of the robbery offence. I do not consider that there is any merit in this ground. It is clear from the FTT’s determination that it took into account all relevant factors concerning the Claimant, going far beyond the robbery offence. Having considered the evidence properly, and directed itself correctly in relation to the tests and criteria in the regulations, the weight to be accorded to the relevant factors was a matter for the FTT.
Finally, the Claimant criticised the Upper Tribunal’s decision, alleging that it repeated the errors of the FTT in:
adopting a distorted view of the Claimant’s criminal convictions, as demonstrated by the exaggeration in the phrase “a string of convictions”;
failing to understand the evidence in relation to the risk of the Claimant re-offending;
failing to understand the test to be applied under Community law when considering whether the “rupture of family and private life” was justified.
In my judgment, the Upper Tribunal was correct to decide that the determination of the FTT did not disclose any arguable error of law, or any other reason meriting the grant of permission to appeal.
For the reasons set out in this judgment, the application for judicial review is dismissed.