Having regard to the several initial successful outcomes in the First Tier Tribunal and the Upper Tier Tribunal itself in the cases of Dumliauskas and MC, the Court of Appeal earlier this year and now recently the Upper Tribunal, by setting aside those decisions, have sought to make it clear that substantial focus on prospects of rehabilitation in EEA deportation appeals almost to the exclusion of other factors in considering proportionality of deportation should now be a thing of the past. Taking into account the history of these cases, it is apparent that where in future Tribunal Judges seek to allow EEA appeals without due regard to the re-cast new Guidance, then on the basis of that guidance the Secretary of State will seek to challenge such decisions and just might be successful.
Although the guidance on rehabilitative issues are of relevant consideration in future EEA deportation appeals, it must be noted that as Regulation 24AA of the 2006 EEA Regulations has already kicked in, on this basis, it is very questionable, unless an interim order can be obtained, whether many EEA nationals subject to deportation will have the opportunity such as that given to the appellants in MC and Dumliauskas to be still in the UK whilst their appeals are being heard. Regulation 24AA applies to a person who appeals in time against an EEA deportation decision, where that appeal has not been finally determined and to a person who has not appealed against an EEA deportation decision but would be entitled to do so from within the UK. An appeal against a deportation decision under regulation 19(3)(b) of the 2006 EEA Regulations no longer suspends removal proceedings, except where the Secretary of State has not certified that the person would not face a real risk of serious irreversible harm if removed to the country of return before the appeal is finally determined or where the person has made an application to the courts for an interim order to suspend removal proceedings (e.g. judicial review) and that application has not yet been determined, or a court has made an interim order to suspend removal. The application of a regulation 24AA certificate does not prevent a person from lodging an appeal from within the UK, rather, by amending Regulation 29 of the EEA Regulations, it removes the suspensive effect of that appeal. So, whilst a person may lodge their appeal in-country, the lodging of such an appeal does not suspend their removal from the UK.
Considerations of rehabilitation have been narrowed as per the new guidance and on this basis in addition to the effect of Regulation 24AA certification it is clear that so far matters are neatly going the UK Government’s way. When the Immigration Bill 2015 was published on 17 September 2015, in response to how many appeals have been allowed under the existing “ deport first appeal later” provisions, the Government’s response via a published Factsheet was, ”Over 230 foreign national offenders have been removed under these powers and 67 have lodged an appeal, of which three have been determined and were dismissed. In addition, over 1,200 EEA foreign national offenders have been removed under equivalent powers and 288 have lodged an appeal”. There appears to be no clarification that those 288 EEA nationals that had lodged an appeal abroad had been successful in their deportation appeals following removal.
It is important to note and have regard to the fact that both parties of “ Essa” principles or criteria are three cases all relating to the same individual:
- Essa, R (on the application of) vUpper Tribunal (Immigration & Asylum Chamber) & Anor [2012 EWHC 1533 (QB), 1 June 2012);
- Essa, R (on the application Of) v Upper Tribunal (Immigration & Asylum Chamber) & Anor  EWCA Civ 1718 (21 December 2012); and
- Daha Essa v Secretary of State for the Home Department  UKUT 316 (IAC) 3 June 2013.
All three judgements are referred to in both Dumliauskas and MC.
THE PARENT DIRECTIVE- RELEVANT ARTICLES AND RECITALS
The relevant provisions in Directive 2004/38/EC are :
- Recital (23
- Recital (24)
- Article 16
- Article 27
- Article 28
RELEVANT DOMESTIC LAW
The relevant Regulations as per The Immigration (European Economic Area) Regulations 2006, 2006 No. 1003, are:
- Regulation 19
- Regulation 21
- Regulation 24
THE RELEVANT CASELAW
Essa (EEA: rehabilitation/integration)  UKUT 00316 (IAC):
The Tribunal stated that for any deportation of an EEA national or family member of such national to be justified on public good grounds (irrespective of whether permanent residence has been achieved) the claimant must represent a present threat to public policy. The fact of a criminal conviction is not enough. The Tribunal considered that it was not permissible in an EEA case to deport a claimant on the basis of criminal offending simply to deter others. This tended to mean, in case of criminal conduct short of the most serious threats to the public safety of the state, that a candidate for EEA deportation must represent a present threat by reason of a propensity to re-offend or an unacceptably high risk of re-offending. In such a case, if there is acceptable evidence of rehabilitation, the prospects of future rehabilitation do not enter the balance, save possibly as future protective factors to ensure that the rehabilitation remains durable.
The Tribunal stated that it was only where rehabilitation is incomplete or uncertain that future prospects may play a role in the overall assessment. The Tribunal took its guidance from the Court of Justice in Tskouridis and the Court of Appeal in Essa, remitting the matter to the Upper Tribunal. The Tribunal noted that it was in the interests of the citizen, the host state and the Union itself for an offender to cease to offend. This is most likely to be the case with young offenders who commit a disproportionate number of offences, but many of whom will stop offending as they mature and comparatively few of whom go on to become hardened criminals and persistent recidivist offenders. The Tribunal stated that it could exclude consideration of offenders beneath the age of 18 as EEA law will prevent their deportation save in the unusual event that it is in their own interest (Article 28 (3) (b) of the Citizens Directive).
The Tribunal considered that if the very factors that contribute to the EEA national’s integration that assist in rehabilitation of such offenders (family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like) will assist in the completion of a process of rehabilitation, then that can be a substantial factor in the balance. If the claimant cannot constitute a present threat when rehabilitated, and is well-advanced in rehabilitation in a host state where there is a substantial degree of integration, it may well very well be disproportionate to proceed to deportation.
The Tribunal considered that at the other end of the scale, if there are no reasonable prospects of rehabilitation, the claimant is a present threat and is likely to remain so for the indefinite future, they could not see how the prospects of rehabilitation could constitute a significant factor in the balance. Thus recidivist offenders, career criminals, adult offenders who have failed to engage with treatment programmes, claimants with impulses to commit sexual or violent offences and the like may well fall into this category.
Secretary of State v Dumliauskas  EWCA Civ 145:
There were three cases before the Court of Appeal. Each of the EEA nationals was convicted of crimes for which prison sentences were imposed. In each case, the Secretary of State was of the opinion that their conduct did “represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” sufficient to justify his expulsion. The Upper Tribunal in each case came to the same conclusion, and in one of the cases (of LW) was further satisfied that the requirement of serious grounds of public policy or public security was satisfied, but rejected the Secretary of State’s case on the ground that, having regard to the better prospects of the rehabilitation of the EEA national in question if he remained in this country, it would be disproportionate to expel him.
AD was a citizen of Lithuania. He had come to the UK in 1998. In summary, as noted by the First Tier Tribunal , whilst in the United Kingdom, the EEA national amassed a criminal record comprising one offence against the person, twelve theft and kindred offences, one offence relating to police, courts, prisons, one drugs offence, 6 firearms and offensive weapons offences. On 8 June 2010 he was convicted of robbery and sentenced to three and a half years’ imprisonment concurrent with 2 counts of theft in respect of going equipped to steal. AD had become addicted to heroin. His offending was connected with his addiction: essentially, he said that he committed his offences to obtain money for drugs. Because of the risk of his relapse, the Tribunal found that his conduct represented a present threat. Accordingly, the precondition for his removal under Art 27.2 and Regulation 19(3) was satisfied. In these circumstances, the Secretary of State was entitled to remove AD provided she satisfied the test of proportionality. On this, the First-tier Tribunal was satisfied that he was genuine in his determination to rehabilitate and had aspects of his physical medical condition and the desire to spend time with his grandson, as factors encouraging rehabilitation. There were considered to be reasonable prospects of believing that the prospects of rehabilitation of the EEA national in the United Kingdom were substantial. No evidence had been put before the Tribunal of the prospects of rehabilitation in Lithuania. On this basis, the Tribunal found that the Secretary of State’s decision to remove AD did not comply with the requirement of proportionality, and it allowed his appeal. The Secretary of State appealed to the Upper Tribunal. In her application for permission to appeal, the Secretary of State contended that the relative prospects of rehabilitation are irrelevant to the assessment of proportionality in the case of someone who does not have the permanent right of residence under the Regulations and the Directive. She also contended that the First-tier Tribunal had erred in law in placing manifestly undue weight on the relative prospects of rehabilitation, and that the Tribunal had wrongly placed an onus of proof on the Secretary of State as to the availability of support for AD in Lithuania. The Upper Tribunal held that the relative prospects of rehabilitation in the UK and in Lithuania were a factor relevant to the assessment of proportionality; accordingly the First-tier Tribunal had not erred in taking it into account and upheld the First Tier Tribunal decision.
ME had Dutch nationality. He stated that he had come to the UK in 2002. He had a wife and children here, but he was separated from his wife. He suffered from schizophrenia and at the date of the First-tier Tribunal’s determination, he was detained in a mental hospital. In March 2010 he was convicted of arson (causing damage to property by fire and being reckless as to the danger to the life of others). The substance of the decision of the First-tier Tribunal was observed to be that the appeal had been argued before them on the basis that the EEA national was someone who should be allowed to remain in the United Kingdom subject to the requirements of the mental healthcare professionals looking after him and should he do so this would result in a low risk of harm to others. The First Tier Tribunal was unable to accept this and consequently while the Secretary of State’s decision would interfere with his family life in the United Kingdom, his removal was justified on protection grounds. Accordingly, the First-tier Tribunal dismissed ME’s appeal against the Secretary of State’s decision to remove him. ME appealed to the Upper Tribunal. The Upper Tribunal noted that the EEA national had clearly been in the United Kingdom for more than five years. It had been found that he did not meet the 10 year residence requirement necessitating the consideration of imperative grounds. However in the Upper Tribunal’s judgement both the time that he has spent in the United Kingdom and the history of his residence here justified the consideration of rehabilitation as a factor in the proportionality balance when considering removal. The Upper Tribunal concluded that the question of whether the EEA national’s continued rehabilitation is best served in the United Kingdom or elsewhere was comparative one. In this respect the evidence showed that the EEA national was being treated in a rehabilitative environment in the United Kingdom and had been so treated in the same establishment for the last 17 months. The Upper Tribunal were satisfied that he was making progress. The prospects of rehabilitation in the Netherlands were more difficult to ascertain. Expert evidence was of the view that even if the Dutch authorities offer equivalent medical treatment the EEA national’s rehabilitation was more likely to be successful in the UK because of his established relationship with the mental health team and his family support.
In the Upper Tribunal’s judgment the nature of the rehabilitative treatment that the EEA national would receive in the Netherlands was at best uncertain whereas the rehabilitative treatment that he was receiving in the United Kingdom was known, long term, continuing and progressing. The Upper Tribunal ‘s judgment was that the prospects of the EEA national’s rehabilitation were a matter that needed to be considered in the proportionality balance. It was considered that those prospects of not of themselves determinative but as a factor in the balance in the case of the case they weighed very heavily indeed as the case concerned an Appellant with no history of offending apart from the index offence but with a long history of mental health issues. It was therefore only by an examination of his psychiatric rehabilitation that it was possible to view his propensity to re-offend because there was no suggestion, either from the Secretary of State or otherwise, that any other factors were in play. In the Upper Tribunal’s judgement the evidence that was before them showed quite clearly that the EEA national’s psychiatric rehabilitation was continuing, progressing and controlled in a secure environment and further that it was being benefited by the proximity and support of close family members. The Upper Tribunal could not be satisfied that this rehabilitation would continue were the EEA national to be deported to the Netherlands and further they were satisfied on the unequivocal expert medical evidence that even if mental health treatment was available to the EEA national his deportation was likely to have a significant detrimental effect on his mental health. It was the Upper Tribunal’s judgment that in the particular circumstances of the case the deportation of the EEA national was not a proportionate response within the terms of regulations 21(5) and 21(6) of the Immigration (European Economic area) Regulations 2006 and therefore the Upper Tribunal re-made the decision of the First-tier Tribunal and allowed the appeal.
LW was a citizen of Poland. In September 2006 he was convicted of driving without due care and attention: his driving had caused the death of a pedestrian, but at that date there was no offence of causing death by careless driving. In May 2007 he was convicted of offences of theft and failure to surrender to bail and was sentenced to a community order. In Feb 2008 he was convicted of fraudulent use of a vehicle excise licence and other road traffic matters; he was fined and disqualified from driving. More seriously, in Dec 2011 he pleaded guilty to 2 offences of robbery; he was sentenced to 32 months imprisonment on both, to run concurrently. This led to the Secretary of State’s decision to remove him. LW did not appear at the First-tier Tribunal hearing of his appeal in Oct 2012. The Tribunal dismissed his appeal, holding that he had not established that he had a permanent right of residence in this country, he remained a risk to the public in the form of violence to the person, had not addressed his offending behaviour, and sought to minimise his criminality. The Upper Tribunal granted LW a further appeal, on the ground that the First-tier Tribunal had failed to consider the relative prospects of rehabilitation. At his hearing before the Upper Tribunal, the Tribunal cited paragraphs 3, 4 and 5 of the decision of the Upper Tribunal in Essa (EEA): rehabilitation/integration  UKUT 00316 (IAC), and concluded that there was evidence of attempts at rehabilitation by voluntarily not using alcohol. If such work continued with the support of family and the friends who attended court and have provided written statements, the prospects for the appellant not reoffending as a result of alcohol related issues must be positive. It was noted that the key element to the success of his rehabilitation appeared not to be the intention of professionals but rather the integration into the peer, family, and friendship group in the UK. The Upper Tribunal found that the case fell within the class of those who at the time of the determination are or remain a present threat to public policy but where the factors relevant to integration suggest that there are reasonable prospects of rehabilitation. It was noted that such prospects were a substantial relevant factor in the proportionality balance as to whether deportation is justified. It was considered clear that LW was well advanced in rehabilitation and that there was a substantial degree of integration. The Tribunal found that on the facts of the case it was disproportionate to proceed to deportation when considering the Regulation 21 facts with particular reference to regulation 21 (5) (a) and (6). It was considered that the future was up to LW. If he reoffended his claim to have rehabilitated would be shown to be false and his deportation to Poland might then succeed. It was noted that if he wished to remain in the UK he needed to continue to abstain from alcohol and steroids or any other substance which might result in aggression and loss of control, behave as a model citizen, and drive with the degree of care expected from any road user.
In each of the 3 cases, the Secretary of State appealed to the Court of Appeal on the ground that the relative prospects of rehabilitation are irrelevant in the case of someone who has no permanent right of residence in this country. It was also contended that the Tribunal gave manifestly excessive weight to rehabilitation, and that the evidence before the Tribunal did not justify its finding that rehabilitation was more likely in this country rather than the country of nationality.
The Court of Appeal in its judgement in Dumliauskas agreed entirely with what was said by Maurice Kay LJ, in the Court of Appeal in R (Daha Essa) v UTIAC  EWCA Civ 1718:
“16. Finally, there is one matter upon which Mr Hall made submissions which I consider to be well-founded. The Advocate General, in the passage which I set out in paragraph 8, above, opined that it is incumbent upon a primary decision-maker who makes an expulsion decision “to state precisely in what way that decision does not prejudice the offender’s rehabilitation”. Although the CJEU expressly adopted part of paragraph AG95 in its judgment, I do not think that it adopted that part. In my respectful opinion it is overprescriptive. The comparative exercise envisaged by Lang J as the usual corollary of Tsakouridis may well be achieved without such a straitjacket”.
The Court of Appeal in Dumliauskas further noted the judgment of the Court of Appeal in Essa (2012 ) appeal made it clear that the relative prospects of rehabilitation are a factor to be taken into account. It was noted that with Essa in the first instance, Lang J had said:
“In my judgment, the judgment … in Tsakouridis establishes that the decision-maker, in applying regulation 21 of the EEA Regulations, must consider whether a decision to deport may prejudice the prospects of rehabilitation from offending in the host country, and weigh that risk in the balance when assessing proportionality under regulation 21(5)(a). In most cases, this will necessarily entail a comparison with the prospects of rehabilitation in the receiving country …”
The Court noted in Dumliauskas that Maurice Kay had said that he entirely agreed with Lang J’s interpretation of Tsakouridis.
The Court of Appeal in Dumliauskas further referred to the prospects of rehabilitation being considered by the Upper Tribunal, in Secretary of State for the Home Department v Vasconcelos  UKUT 378 (IAC). The Court of Appeal agreed entirely with paragraph 80 of that decision which stated that, “His future prospects of rehabilitation are uncertain and whatever they are cannot be a weighty factor in the balance given the absence of integration and a right of permanent residence” .
The Court of Appeal in Dumliauskas further noted that the judgment of the Court of Justice in Tsakouridis was considered by the Upper Tribunal, in Essa v Secretary of State for the Home Department  UKUT 316 (IAC) and that the Tribunal concluded that the prospects of rehabilitation in the offender’s home State are relevant to the decision to deport only if he has acquired a permanent right of residence. The Court of Appeal in Dumliauskas whilst indicating sympathy with this approach, was unable to agree with it. The Court could think of no other example of a factor bearing on proportionality being relevant to those who qualify in a certain respect (here, lawful residence) but not others. It was considered that once proportionality is engaged, the factors to be taken into account do not vary with the qualifications of the individual concerned. The Court of Appeal considered that what was however affected by length of legal residence (in the sense used in Art 16.1 of the Parent Directive ) was the weight to be given to the respective prospects of rehabilitation. In addition, it seemed to the Court of Appeal that the decision of the Upper Tribunal in Daha Essa (2013) was inconsistent with what was said by Maurice Kay LJ in Daha Essa (2012).
At paragraph 47 of its judgement, the Court of Appeal in Dumliauskas also had consideration to the following:
“Lastly, I refer to what my Lord Jackson LJ said in SE Zimbabwe v Secretary of State for the Home Department  EWCA Civ 256  Imm AR 4:
- It is clear from the first part of paragraph 19 that the Upper Tribunal took into account SE’s good progress to date in rehabilitation. The tribunal treated that as a factor in SE’s favour.
- The last sentence of paragraph 19 is directed to the effect of Essa (EEA: Rehabilitation/Integration)  UKUT 316 (IAC). This was a decision concerning EU citizens who committed offences and were being considered for deportation. Blake J observed at paragraph 37 that it was in the interests of the citizen, the host state and the Union itself that the offender should cease to offend. Accordingly, if the offender’s rehabilitation is incomplete, it is relevant to consider the offender’s prospects of future rehabilitation (a) if he is deported to his home state and (b) if he remains in the host state.
- I agree with that analysis. The European Union has a collective interest in promoting the rehabilitation of all EU citizens who have lapsed into crime.
- What the Upper Tribunal was saying in the last sentence of paragraph 19 of its decision in the present case was that that analysis does not apply here, because SE is not an EEA national. I agree with that proposition.
- SE is a violent offender, who has made good progress towards rehabilitation. At the time of sentence, his risk of re-offending was assessed as high. That risk is now assessed as medium. It is reasonable to suppose that if SE is deported to Zimbabwe, he will not receive the same level of support and assistance in continuing his rehabilitation process. However, it is also right to note that there was no evidence about this because the issue was not raised; the observation of the Upper Tribunal on the point was really in the nature of an aside.
- From that point of view, it may be thought that it is desirable for SE to remain in the UK, so that he can access the services of probation officers and other professionals. On the other hand, in the general run of cases, I do not think that this is a valid consideration under article 8 of ECHR. The prospective deportee cannot say:
“I am a criminal. I am only part way through the process of rehabilitation. If I remain in the UK, I will probably become reformed with the help of probation officers and other professional staff. If deported to my home country, I am likely to return to my criminal ways. Therefore I should stay here.”
- In my view, absent exceptional circumstances, this is not a valid argument. The offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life”.
The Court of Appeal in Dumliauskas was unable to accept the Secretary of State’s submission that the prospects of rehabilitation are irrelevant unless the offender has a permanent right of residence.
The Court of Appeal however stated that they were bound to accept, on the authority of the judgment of the Court of Appeal in Daha Essa (2012) that the Secretary of State, and therefore the Tribunal, must consider the relative prospects of rehabilitation, in the sense of ceasing to commit crime, when considering whether an offender should be deported
The Court of Appeal however found that , different considerations applied to questions of evidence and the weight to be given to the prospects of rehabilitation. As to evidence, it was noted that as a matter of practicality, it was easier for the Secretary of State to obtain evidence as to support services in other Member States. However, in the Court of Appeal’s judgment, in the absence of evidence, it is not to be assumed that medical services and support for, by way of example, reforming drug addicts, are materially different in other Member States from those available here.
The Court of Appeal in agreement with what was said by the Upper Tribunal in Vasconcelos, did not consider that in the case of an offender with no permanent right of residence substantial weight should be given to rehabilitation. The Court of Appeal considered that it appreciated that all Member States had an interest in reducing criminality, and that deportation merely exports the offender, leaving him free to offend elsewhere. The Court however considered that the whole point of deportation was to remove from the country someone whose offending rendered him a risk to the public. The Court stated that the parent Directive recognises that the more serious the risk of reoffending, and the offences that an EEA national may commit, the greater the right to interfere with the right of residence. Article 28.3 of the Directive requires the most serious risk, i.e. “imperative grounds of public security”, if a Union citizen has resided in the host Member State for the previous 10 years. Such grounds will normally indicate a greater risk of offending in the country of nationality or elsewhere in the Union. The Court considered that the greater the risk of reoffending, the greater the right to deport.
The Court of Appeal observed that a deported offender would not normally have committed an offence within the State of his nationality. There was noted to be a real risk of his reoffending, since otherwise the power to deport does not arise. The Court of Appeal considered that nonetheless, the offender will not normally have access to a probation officer or the equivalent and that this must have been obvious to the European Parliament and to the Commission when they adopted the Directive. The Court of Appeal considered that for the lack of such support to preclude deportation was difficult to reconcile with the express power to deport and that in their judgment, it should not, in general, do so.
The Court of Appeal found that in AD, the First-tier Tribunal had erred in accepting that appropriate medical treatment would be available to him in Lithuania, but found that no rehabilitative programme for him, as a recovering drug addict, would be available in Lithuania. It was considered that the Upper Tribunal should not have upheld the First-tier Tribunal’s assessment of proportionality, which was flawed. The Secretary of State’s appeal was allowed; the decision of the Upper Tribunal was set aside, and AD’s appeal remitted to be heard afresh, in the light of the latest evidence.
In LW, the Court of Appeal allowed the Secretary of State’s appeal and remitted the case to the Upper Tribunal for a fresh hearing.
In the case of ME, the Secretary of State’s appeal was allowed and his case was remitted to the Upper Tribunal.
MC (Essa principles recast) Portugal  UKUT 520 (IAC):
The issue was to what extent the prospect of rehabilitation was to be taken into account in an EEA deportation appeal and also what extent do the Essa principles still hold good?
The appeal was brought by the Secretary of State against the determination of First-tier Tribunal allowing the EEA national, MC’s appeal against the decision of 14 May 2014 to make a deportation order.
The First Tier Tribunal held that as MC had not been in the UK exercising Treaty
rights for a continuous period of five years, he was entitled only to the lowest level
of protection set out in Regulation 21. The Tribunal concluded that despite the
EEA national’s expressions of remorse and contrition there was a real likelihood that he may offend again. It was concluded that MC represented a genuine, present and sufficiently serious threat to one of the fundamental interests of society. Citing Essa ( Essa (EEA: rehabilitation/integration)  UKUT 316 (IAC)), the First Tier Tribunal in relation to the factor of rehabilitation, the Tribunal described this factor as “the prospects of rehabilitation as between this country and Portugal and an awareness of the interest ‘of the European Union in general’.
The First Tier Tribunal concluded that they had considered the potential result of a deportation to Portugal of MC and the likely diminution of the family support for the him and a withdrawal of the discipline of the licence conditions which he now faced since his release and the benefits of regular supervision in the community. The Tribunal considered whether this would have the capacity in the future to reduce the risk of re-offending he currently presented. The Tribunal considered that if this combination of support significantly reduced MC’s risk of offending, it could undermine to a significant degree the proportionality MC’s removal. It appeared to the Tribunal that none of the reports suggested that MC was incapable of rehabilitation. MC was however noted to be required to fundamentally change his current attitude and approach. As between Portugal and the United Kingdom, the Tribunal considered that MC was more likely to address his offending behaviour in the United Kingdom with the current support he had around him. The support factors could encourage the MC to develop stability in his life and his relationships and these support factors are significantly stronger in the United Kingdom.
The Tribunal stated that they had balanced all the factors in the case and the issues raised in respect of the proportionality of the decision. It was considered by the First Tier Tribunal that the decision of the Secretary of State was not justified on the grounds of the prevention of disorder and of further crimes and was not a proportionate response. It was concluded that although MC represented a genuine, present and sufficiently serious threat to one of the fundamental interests of society his deportation would not be proportionate. MC’s appeal under the EEA regulations was allowed.
The Secretary of State appealed the decision. It was submitted that in allowing the appeal under the 2006 EEA Regulations, the First Tier Tribunal judge’s decision to treat the prospect of rehabilitation as a substantial relevant factor amounted to a misunderstanding of the guidance given in Essa (EEA: rehabilitation/integration) UKUT 316 (IAC). The judge had wrongly treated Essa (2013) as enunciating the general principle that every EEA national should be given the opportunity to be rehabilitated in the EU member state where the offences were committed. The judge had also misunderstood that the Tribunal in Essa (2013) had held that the prospect of rehabilitation could only be weighed in the balance against deportation in respect ofthose who had acquired a right of permanent residence. In the claimant’s case the judge had found that he had not been exercising Treaty rights for the requisite five years. The Secretary of State also sought to amend grounds so as to enable her to rely on the further guidance on the issue of rehabilitation in EEA deportation cases given by the Court of Appeal in Secretary of State for the Home Department v Dumliauskas & Ors  EWCA Civ 145 . It was submitted that if the judge had had the benefit of this guidance he would have concluded that little weight should be attached to the claimant’s prospects of rehabilitation. In turn he would not have found a breach of Article 8 because he would have had to treat failure under the EEA Regulations as strengthening the public interest in deportation.
The Upper Tribunal in MC considered the issues as follows:
“28. In addition to these three cases on Essa, the recent Court of Appeal judgment in Dumliauskas has significantly recast what have been referred to as Essa principles. Whereas the Tribunal in Essa had concluded that the prospects of rehabilitation in the offender’s home state are relevant to the decision to deport only if he has acquired a permanent right of residence, Sir Stanley Burnton (LJJ Floyd and Jackson concurring) disagreed, stating at :
“Whilst I have considerable sympathy with this approach, I am unable to agree with it. I can think of no other example of a factor bearing on proportionality being relevant to those who qualify in a certain respect (here, lawful residence) but not others. Once proportionality is engaged, the factors to be taken into account do not vary with the qualifications of the individual concerned… What is however affected by length of legal residence (in the sense used in Article 16.1) is the weight to be given to the respective prospects of rehabilitation. In addition, it seems to me that the decision of the Upper Tribunal in Daha Essa is inconsistent with what was said by Maurice Kay LJ in Daha Essa.”
- We do not understand Dumliauskas to have overruled the entirety of the guidance given by the Upper Tribunal in Essa (2013); indeed Maurice Kay LJ expressly approved parts of it. However, in light of the further analysis provided in Dumliauskas it may assist if we seek to summarise cumulatively what these principles are, as now modified by this judgment:-
- Essa rehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.
- It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation 21(5)(c)) that it becomes relevant to consider whether the decision is proportionate taking into account all the considerations identified in regulation 21(5)-(6).
- There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6) ( Essa (2013) at ).
- Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed ( Essa (2013) at -).
- Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime ( Essa (2013) at ), not the mere possibility of rehabilitation.
- Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) (( Dumliauskas ).
- Such prospects are to be taken into account even if not raised by the offender ( Dumliauskas ).
- Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State ( Dumliauskas , - and ).
- Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like ( Essa (2013) at ). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation ( Dumliauskas )
- In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor ( Dumliauskas  and ). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognises that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence ( Dumliauskas at  and ).
- On the logic of the Essa principles as revised by the Court of Appeal in Dumliauskas it is not open to a Tribunal re-making the decision in an appeal concerning an EEA national who has not acquired permanent residence to attach substantial weight to the prospects of his rehabilitation……”
The Upper Tribunal in MC found that the First Tier Tribunal materially erred in law and setside the decision allowing MC’s appeal. MC’s appeal was reconsidered by the Upper Tribunal and dismissed.
CONSIDERATIONS AND CONCLUSION
Having regard to the wording used in the judgments, it appears that there is no total exclusion of a running of an argument based on rehabilitation where no permanent residence has been acquired. The criticism is to the attachment of substantial weight to the prospects of rehabilitation. It is therefore possible to advance an EEA deportation appeal having regard to issues of rehabilitation but also placing some weight on other applicable factors counting against deportation in the proportionality balance exercise.
On the basis of MC, where the Tribunal correctly finds that the personal conduct of the EEA nationals does not represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society then issues of proportionality should be redundant and as such that should be the focus of argument in EEA deportation appeals where the facts and evidence supports it. The usual assortment of important documents such as Sentencing Judge’s Remarks, Pre-Sentence reports, NOMS’s report, OASY’s report including any relevant expert evidence as well as current Probation Services reports, where helpful, should still assit in advancing an argument that such a threat does not arise.
As reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime and not the mere possibility of rehabilitation, then where a potential deportee is imprisoned they may consider, where they have genuine intentions in this regards, that they ensure that they are enabled to undertake relevant awareness courses seeking to address their offending behaviour; where this is not forthcoming then repeated written request applications by the potential deportee in this regards should be retained for reliance in a possible future deportation appeal.
The Court of Appeal in Dumliauskas made a references to the principles in SE Zimbabwe v Secretary of State for the Home Department  EWCA Civ 256  Imm AR. That case considered the deportation appeal of a non-EEA national and it was considered there that an offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life As noted by the Courts, there is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration. In combination with taking the reference to SE Zimbabwe into account in relation to the applicability of rehabilitation issues in EEA deportation appeal, the Court of Appeal appeared to express some ill – concealed frustration:
“51.It is notorious that a great deal of offending is linked to illicit drugs and/or to alcohol. Addiction to drugs leads to crimes of acquisition, including theft, burglary and robbery, aimed at financing the purchase of drugs to feed the addiction. Alcohol affects self-restraint and is particularly associated with crimes of violence.
51.I am bound to accept, on the authority of the judgment of this court in Daha Essa, that the Secretary of State, and therefore the Tribunal, must consider the relative prospects of rehabilitation, in the sense of ceasing to commit crime, when considering whether an offender should be deported. I have to say that but for that authority, I would have said that this was a factor to be considered if raised by the offender, but not otherwise, just as the effect of deportation on the health of an offender need not be considered unless it is made known to the Secretary of State that it is a relevant factor”.
It may be that had the Court of Appeal in Dumliauskas not been bound by earlier authority, it may well have decided that EEA deportation appeals in relation to considerations of rehabilitation should be considered in the same way as non- EEA deportation appeals.