Factors Relating to Deterrence and Public Revulsion of the Offender’s Conduct Generally Inapplicable to EEA National’s Subject to Deportation

The Home Office has within the  last year ( more  so  since the coming into force of the Immigration Act  2014) increasingly sought to put in place  measures to  deport as many foreign criminals as possible from the  UK but in so doing,  seem to be deliberately blurring   the line between the  relevant applicable law  and principles that apply when deporting a foreign national criminal  as opposed to an EEA national  criminal subject to deportation. There has,  for example,  been  a  deliberate mirroring  of  the Section 94B certification,  which  applies to non- EEA foreign national criminals    and the  Regulation 24AA Certification  that applies to  EEA nationals similarly  subject to deportation – the  intention  being to  deny deportees  an in – country right of appeal.   In  terms of relevant   litigation  in this regards for both categories of deportees, the Secretary has so far  been winning,  as in Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department [2015] EWCA Civ 1020 in relation to section 94B and  as regards Regulation 24AA, of which  judgment was handed down by the Upper Tribunal on 26 November 2015,   following a judicial review claim. The judgment is not yet in the public domain.

The Court of Appeal  has  however  recently  in Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245,  in a different context but  still within the subject matter of deportation,   sought to remind  the Secretary of State  of the   fundamental  basic  principles   of  EEA law that apply  when seeking to  deport EEA nationals , in particular  those who have acquired permanent residence in the UK.  The Court  essentially  considered the issue of   whether wider factors, such as the public interest in deterrence and the need to demonstrate public revulsion at the offender’s conduct, are factors that can properly be taken into account when deciding whether the removal of an EEA national who has acquired a permanent right of residence is justified on serious grounds of public policy or public security under Regulation  21 of the EEA regulations.  The Court of Appeal decided that generally  they were not.  The  Court’s observation  that in EEA deportation appeals, the burden lies upon the  Secretary of State  as well as  the Court’s ultimate  decision in each of the  cases, where serious crimes were committed, shows   that  deportation of  EEA nationals from the UK  has indeed  to be  justified  only  having  regard to relevant EEA   law and principles.

RELEVANT  LAW IN QUESTION

 The Immigration (European Economic Area) Regulations 2006 as amended provide in relation to Regulation 21:

“Decisions taken on public policy, public security and public health grounds 21.

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

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

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

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

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

(b)is under the age of 18, unless the relevant decision is necessary in his best interests, 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(11).

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

(a)the decision must comply with the principle of proportionality;

(b)the decision must be based exclusively on the personal conduct of the person concerned; (c)the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

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

(e)a person’s previous criminal convictions do not in themselves justify the decision.

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

(7) In the case of a relevant decision taken on grounds of public health—

(a)a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation(12) or is not a disease listed in Schedule 1 to the Health Protection (Notification) Regulations 2010 shall not constitute grounds for the decision; and

(b)if the person concerned is in the United Kingdom, diseases occurring after the three month period beginning on the date on which he arrived in the United Kingdom shall not constitute grounds for the decision”.

THE  PROCEEDINGS IN THE COURT OF APPEAL

Facts, Relevant  Criminal Convictions, Permanent Residence and Deportation Proceedings:

Mr Jacek Straszewski- a Polish National:-  Mr. Straszewski, came  to the UK with his mother in October 1998 when he was 11 and by the end of 2003 had acquired a right of permanent residence. On 9th June 2010, while drunk, he attacked another man with a broken glass, causing serious injuries to his face and neck. He later pleaded guilty to a charge of unlawful wounding. Subsequently, while on bail for that offence, together with another man he broke into a flat occupied by two young women with a view to stealing anything of value. When the occupants returned home they saw the door to the flat open and accosted the burglars. The two men repeatedly punched and kicked the women before making their escape. On 19th November 2010 Mr. Straszewski pleaded guilty to two counts of robbery and was sentenced to 42 months’ imprisonment. Subsequently, on 24th March 2011, he was sentenced to 15 months’ imprisonment consecutive in respect of the earlier offence of unlawful wounding. He was released from prison on 26th December 2012 and was immediately taken into immigration detention. The Secretary of  State  made a decision to deport him. His appeal to the First-tier Tribunal was allowed on the grounds that he had resided in the United Kingdom for more than ten years and that a decision to remove him could not be taken except on imperative grounds of public policy or public security, as provided for in regulation 21(4) of the 2006 EEA Regulations.

The Secretary of State appealed to the Upper Tribunal. The Upper Tribunal held that  Mr. Straszewski had not resided lawfully in the UK for as long as ten years and was therefore entitled to only the lower level of protection provided for by regulation 21(3) of the EEA Regulations. The  Upper Tribunal therefore set aside the decision of the First-tier Tribunal and remade the decision.  Having considered the nature of his offending and various reports directed to the risk of his further offending, including two from an independent psychiatrist, the Upper Tribunal concluded that he did not pose a serious threat of harm to the public and that his removal was not permitted by regulation 21(3). It also found that removal would involve a disproportionate interference with his right to respect for family and private life under article 8 of the European Convention on Human Rights. The Upper  Tribunal  therefore dismissed the  Secretary of State’s appeal.

Darius Kersys- Lithuani:- Mr Kersys came to the UK  in April 2004 and subsequently acquired a permanent right of residence. In January 2013 he was convicted of three offences of identity fraud, by which he and his wife used bank cards belonging to a vulnerable elderly neighbour whom they had befriended in order to obtain sums of money totalling about £112,000 from his bank account after his death. The sentencing judge described it as ” a mean-spirited and nasty piece of offending”. On 21st January 2014 the Secretary of State decided to make a deportation order against Mr. Kersys under regulation 21. His appeal to the First-tier Tribunal was successful. The Secretary of State’s appeal to the Upper Tribunal was dismissed.  The Secretary of State appealed to the Court of Appeal.

The Arguments:

In Mr. Straszewski’s case, the Secretary of State submitted  that the Upper  Tribunal’s decision was flawed because it had failed to explain why in the light of the   independent psychiatrist  report,  Mr. Straszewski’s  did not pose a serious threat of harm to the public- he had been assessed as posing  a medium risk of re-offending   and  also medium risk of causing serious harm.  It was also  argued that  when reaching its decision  the  Upper Tribunal  had failed to take into account the public interest in deterring other foreign nationals from offending or the need to reflect the public’s revulsion at the commission of serious crimes of the kind of which Mr. Straszewski had been convicted. The Secretary of State argued that factors of that kind ought to be taken into account when considering whether the removal of an offender pursuant to the Regulations is justified. The Court of  Appeal  observed that the Secretary of State’s sought  in   substance, to assimilate the position of an EEA national to that of any other foreign criminal whose removal is required under section 32 of the UK Borders Act 2007.

It was in turn  submitted  on behalf of Mr. Straszewski  that there was a fundamental difference between the principles underpinning section 32 of the UK Borders Act, which apply to foreign criminals generally, and those which underpin the Regulations applicable to EEA nationals. It was put  forward that the Directive and the Regulations are to be understood against the background of the right of free movement enshrined in the Treaties establishing the European Union and that factors such as deterrence and public revulsion, which are relevant when considering deportation under the UK Borders Act, have no part to play in a decision under the Regulations. It was further  submitted that it was open to the Upper Tribunal in this case to reach the conclusion that Mr. Straszewski’s conduct did not provide serious grounds of public policy or public security sufficient to justify a decision to remove him.

As regards Mr Kersys, the Secretary of State   sought to  overturn the tribunal’s decision on the grounds that it failed to give any or adequate weight to the public’s adverse reaction to  his offending. The arguments deployed on either side were similar to those advanced in relation to Mr. Straszewski, although the Secretary of State  recognised that the offences committed by Mr. Kersys were less serious than those that had been committed by Mr. Straszewski.

COURT OF APPEAL’S CONSIDERATIONS AND DECISION

Burden of Proof Considerations:

The Court of Appeal stated that cases  involving the deportation of a foreign criminal under Section 32 of the UK Borders Act 2007 ,within the content of that  statutory scheme envisages that the person facing deportation bears the burden of showing that his removal would not be in accordance with the law, usually because of the interference with his fundamental rights that it would entail. The Court  stated that  in such a case it is well established that the need to deter other potential wrongdoers and to reflect public revulsion at the offence in question are aspects of the public interest in deportation and as such are important factors for the decision-maker to take into account.  As regards the  Secretary of State’s  submission that   they are equally important in a case falling within Regulation 21, in the Court’s view, that failed  to recognise the very different context in which the question of deportation arises.

The Court  of Appeal also  stated that one important purpose of the Citizenship Directive was to protect and support the Treaty right of free movement of nationals of Member States and, by extension, nationals of other EEA states. The origin and purpose of the Regulations are, therefore, both fundamentally different from those of section 32 of the UK Borders Act, which is directed to removing from the UK foreign national criminals who have no right to be here other than in accordance with leave to remain granted by the Secretary of State. Their position in law is inherently less secure than that of EEA nationals who are entitled to exercise Treaty rights. In a case where the removal of an EEA national would prima facie interfere with the exercise of his Treaty rights it is for the member state to justify its action. It was  for that  reason that the Curt was  unable to accept  the Secretary of State’s submission that in a case of the present kind the burden of showing that the decision is not in accordance with the law lay on the person who was  to be deported.

Stringent Restrictions Where The EEA National  Has Permanent  Residence:

The Court  stated that given the fundamental difference between the position of a foreign national criminal  and that of an EEA national, one would expect that interference with the permanent right of residence would be subject to more stringent restrictions than those which govern the deportation of nationals of other states. Moreover, since the right of free movement is regarded as a fundamental aspect of the Union, it was  not surprising that the Court of Justice had held that exceptions to that right based on public policy are to be construed restrictively:

Deterrence and Public revulsion:

Having referred to some caselaw, the Court of Appeal did  acknowledge that there have been instances in which deterrence and public revulsion have played a part in a  decision, however stated that Regulations 21(5)(b) and (d) provide that a decision to remove an EEA national who enjoys a permanent right of residence must be based exclusively on the personal conduct of the person concerned and that matters that do not directly relate to the particular case or which relate to considerations of general prevention do not justify a decision to remove him.  It was considered that on the face of it, therefore, deterrence, in the sense of measures designed to deter others from committing similar offences, has of itself no part to play in a decision to remove the individual offender. Similarly, it was  difficult to see how a desire to reflect public revulsion at the particular offence can properly have any part to play, save, perhaps, in exceptionally serious cases.

The Court of Appeal  stated that the authorities they had referred in their consideration  supported  the general proposition that great importance is to be attached to the right of free movement which can be interfered with only in cases where the offender represents a serious threat to some aspect of public policy or public security. Save in exceptional cases, that is to be determined solely by reference to the conduct of the offender (viewed in the context of any previous offending) and the likelihood of re-offending. General considerations of deterrence and public revulsion normally have no part to play in the matter.  The Court stated that in  these respects the principles governing the deportation of foreign criminals in general differ significantly from those which govern the deportation of EEA nationals who have acquired a permanent right of residence. This conclusion was, in  the Court ‘s view, supported by the decision of the CJEU in I v Oberbürgermeisterin der Stadt Remscheid [2012] Q.B. 799, a case concerning the meaning of the expression “imperative grounds of public security” . In that case the court laid some emphasis on the need to consider the personal conduct of the offender and his propensity to re-offend.

Considerations of Permanent Residence and Residence  For at Least 10years:

The Court stated that the expression “imperative grounds of public security” creates a considerably stricter test than merely “serious” grounds, but since the application of the test is primarily for the member state concerned, which must take into account social conditions as well as the various factors to which the Directive itself refers, the question is likely to turn to a large extent on the particular facts of the case. It was therefore  unwise, in the Court’s view to attempt to lay down guidelines. It was considered that in the end, the Secretary of State must give effect to the Regulations, which themselves must be interpreted against the background of the right of free movement and the need to ensure that derogations from it are construed strictly. The Court further stated that in that context it is worth noting that even in a case where it is considered that removal is prima facie justified on imperative grounds of public security, the decision-maker must consider, among other things, whether the offender has a propensity to re-offend in a similar.

“Public Policy” Considerations:

The Court noted that  “public policy” for these purposes includes the policy which is reflected in the interest of the state in protecting its citizens from violent crime and the theft of their property. These are fundamental interests of society and therefore, although regulation 21(3) does not speak in terms of the risk of causing harm by future offending, in a case of this kind (Mr. Straszewski)  that is the risk which the Secretary of State is called upon to assess when considering deportation. That requires an evaluation to be made of the likelihood that the person concerned will offend again and what the consequences are likely to be if he does.

“ Sufficiently  Serious Threat”:

The Court stated that  the need for the conduct of the person concerned to represent a “sufficiently serious” threat to one of the fundamental interests of society requires the decision-maker to balance the risk of future harm against the need to give effect to the right of free movement. In any given case an evaluative exercise of that kind may admit of more than one answer. If so, provided that all appropriate factors have been taken into account, the decision cannot be impugned unless it is perverse or irrational, in the sense of falling outside the range of permissible decisions.

Court’s Decision in Mr. Straszewski’s case:

The Court stated that the offences committed by Mr. Straszewski were undoubtedly serious, but viewed in the wider context, they could not be regarded as of exceptional gravity or as being the kind of offences that would cause genuine revulsion among members of the public. Serious though the offences were, however, it was  regrettably not difficult to imagine offending of a much more serious kind.

The Court of Appeal  further stated that  the  tribunal clearly considered  the independent  psychiatrist’s  two reports with care and thought that her opinion that Mr. Straszewski was beginning to show some insight into his problems was reinforced by what he had said in evidence. By the time of its decision he had an offer of a job and could expect to receive more support from his mother and other members of his immediate family. In those circumstances it was, in the Court’s view,  open to the tribunal to find that he did not represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society to justify his deportation.  The Court  reached  that conclusion without having regard to the length of time Mr. Straszewski had lived in the UK,  the degree of his social and cultural integration and the extent of his links with Poland, matters that under regulation 21(6) must be taken into account before any decision to deport him is made. It was   however relevant to note, stated the Court of Appeal,, that he had spent most of his formative years in the UK, spoke  good English and could not read or write Polish.

The Court of appeal also considered that the tribunal concentrated, correctly on the risk of future harm to the public as a result of re-offending.  The reasons for its decision were  clear and could  be stated quite shortly: although the offences committed by Mr. Straszewski were serious, they were not so serious, and the risk that he would cause serious harm to members of the public through re-offending was not so great, that they justified his deportation.

The  Secretary of State’s appeal was therefore  dismissed.

Court’s decision in Mr Kersys’s case:

The Secretary of State  had submitted that the tribunal wrongly failed to take into account public revulsion as a factor that was relevant to an assessment of Mr. Kersys’s conduct for the purposes of deciding whether there were serious public policy grounds justifying his deportation. She also submitted that it failed to recognise that such conduct and the natural public reaction to it are relevant to the assessment of cultural and social integration required under regulation 21(6). As far as the latter question is concerned,  the Court stated that they could see  that some kinds of conduct, whether exciting public revulsion or not, might be evidence of a lack of cultural and social integration, but said that  regrettably they  did not think that that can be said of conduct of the kind in which Mr. Kersys and his wife indulged in.  The offences did not bear the hallmark of a different cultural background; in the Court’s view,  they could just as easily have been committed by other dishonest members of society.

The Court did not consider  that public revulsion at the offender’s conduct has any part to play in deciding whether there are sufficiently serious grounds of public policy to justify his deportation, save in exceptional cases of a kind in which failure to remove the offender might itself tend to undermine confidence in the state’s ability to administer justice. The Court stated the  Mr. Kersys’s  case fell  far short of that. However, even if it were a factor to be taken into account in this case,  the Court found  it impossible to accept that a rational tribunal could have come to any other conclusion. Although the offences for which Mr. Kersys was sent to prison did not represent his first brush with the law, his previous convictions must have been of a modest kind, since the judge when passing sentence was content to treat him as a man of good character. Moreover, a report made by NOMS concluded that he posed a low risk of further offending and a low risk of causing harm to the public. In those circumstances  the Court  found   it difficult to understand how behaviour, although properly described as “mean-spirited”, “nasty” and “despicable” in the Sentencing  Judge’s remarks  could possibly be said to represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society to justify overriding the right of free movement on which the permanent right of residence rests.

CONCLUSION

The  Court of Appeal  observed that  EEA nationals who have acquired a right of permanent residence in the UK  enjoy enhanced protection against deportation. The longer a potential deportee has been in the UK, the greater  the  efforts to be made to show rehabilitation    by way of reports  in addition to   evidence  as regards  whether and how  permanent   residence has been  acquired  in the  UK.

Overall, the decision of the Court of Appeal indicates the difficulty the Secretary  of State will face in   EEA deportation cases, even in serious cases of criminality. There will have to be the added recognition, undesirable though it might be, that in some  cases,  sometimes it may just prove  that much more of a burdensome  challenge   to justify exclusion   of EEA nationals subject to deportation.

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