The Upper Tribunal has sought to answer this question in the case of Restivo (EEA – prisoner transfer) Italy  UKUT 449 (IAC).
Relevant Facts in Summary
On 29 June 2011, before the Crown Court at Winchester, Mr Restivo was convicted of murder, an offence committed on 12 November 2002, for which he was sentenced to life imprisonment, the term to be served being subsequently amended by the Court of Appeal from the whole life term imposed by the trial Judge to a minimum term of 40 years.
The Secretary of State concluded, in the light of this conviction, that Mr Restivo was a person whose removal was justified on grounds of public policy or public security so that the requirements of Regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 were met. In view of the time he had lived in the United Kingdom, he had secured a permanent right of residence under Regulation 15 and so the relevant test was that in Regulation 21(3), that the decision may not be taken except on serious grounds of public policy or public security. As the Secretary of State was satisfied that this test was met, a decision to make a deportation order pursuant to section 5 Immigration Act 1971 was made.
Upon being subjected to deportation proceedings, the First Tier Tribunal(FTT) allowed Mr Restivo’s appeal. When the Secretary of State applied for permission to appeal, the Upper Tribunal(UT) refused permission. Permission to appeal was however granted following a successful ” Cart challenge” to the decision of the Upper Tribunal.
Mr Restivo ‘s offending both in the United Kingdom and in Italy
The jury had heard that Mr Restivo had murdered another young woman(Elisa Claps) in Italy in September 1993 in a manner that bore striking resemblance to the way in which the murder of Ms Barnett in the UK had been carried out.
Mr Restivo had been sentenced also by an Italian court to 30 years imprisonment for the murder of Elisa Claps. Although he had been convicted of that murder in his absence, he had been subject to temporary extradition arrangements in March 2013 so that he could participate in what proved to be for him an unsuccessful appeal against that conviction. The position as at the date of the hearing before the First-tier Tribunal was that the rejection of that challenge had not exhausted Mr Restivo’s rights of appeal in Italy and that he intended to pursue a final further onward right of appeal against conviction. That final appeal available to Mr Restivo in Italy was finally dismissed on 7 March 2016 which was after the date of the decision of the First-tier Tribunal.
Why permission for judicial review and permission to appeal was granted by the Administrative Court
The reasons are as follows in summary:
“The application raises important points of principle in relation to the correct interpretation of the relevant statutory instruments for the deportation and transfer of a prisoner within the EEA; given the particular context of this offence/offender, there is a compelling reason to achieve clarity.”
“In my view Cobb J was right to find that the application in the present case raised important points of principle as to the correct interpretation of the [Immigration (EEA) Regulations 2006] and the Framework Agreement leading to the deportation and transfer of prisoners within the EEA.”
The Relevant Framework
The appeal before the First-tier Tribunal was against the decision to make a deportation order. The Secretary of State’s purpose in so doing was in order to explore the possibility of securing agreement of the Italian Government to the transfer of Mr Restivo to Italy so that he could serve in Italy the sentence imposed by the British court for the murder of Ms Barnett.
The European Framework Decision 2008/909/JHA, provides:
Opinion and notification of the sentenced person
1.Without prejudice to paragraph 2, a judgment together with a certificate may be forwarded to the executing State for the purpose of its recognition and enforcement of the sentence only with the consent of the sentenced person in accordance with the law of the issuing State
2.The consent of the sentenced person shall not be required where the judgment together with the certificate is forwarded:
(a) to the Member State of nationality in which the sentenced person lives;
(b) to the Member State to which the sentenced person will be deported once he or she is released from the enforcement of the sentence on the basis of an expulsion or deportation order included in the judgment or in a judicial or administrative decision or any other measure consequential to the judgment;
(c) to the Member State to which the sentenced person has fled or otherwise returned in view of the criminal proceedings pending against him or her in the issuing State or following the conviction in that issuing State.
3.In all cases where the sentenced person is still in the issuing State, he or she shall be given an opportunity to state his or her opinion orally or in writing. Where the issuing State considers it necessary in view of the sentenced person’s age or his or her physical or mental condition, that opportunity shall be given to his or her legal representative.
The opinion of the sentenced person shall be taken into account when deciding the issue of forwarding the judgement together with the certificate. Where the person has availed him or her self of the opportunity provided in this paragraph, the opinion of the sentenced person shall be forwarded to the executing State, in particular with a view to Article 4(4). If the sentenced person stated his or her opinion orally, the issuing State shall ensure that the written record of such statement is available to executing State.
4.The competent authority of the issuing State shall inform
the sentenced person, in a language which he or she understands, that it has decided to forward the judgment together with the certificate by using the standard form of the notification set out in Annex II. When the sentenced person is in the executing State at the time of that decision, that form shall be transmitted to the executing State which shall inform the sentenced person accordingly.
5.Paragraph 2(a) shall not apply to Poland as an issuing State and as an executing State in cases where the judgement was issued before the lapse of five years from 5 December 2011. Poland may at any time notify the General Secretariat of the Council that it will no longer avail itself of this derogation”.
The First Tier Tribunal’s main basis for allowing the appeal
The FTT found that the proposed deportation of Mr Restivo to Italy was premature until it was established that Italy had signed up to the Additional Protocol and/or had accepted that they would accept his transfer in compliance with the Framework Decision and/or would make an application on their own behalf for his return to serve the sentence imposed by the Italian courts for the murder of Elisa Claps. The FTT thus considered that the decision to make a deportation order was premature, because agreement of the Italian authorities under the Framework Decision for Mr Restivo to serve his sentence in Italy had not yet been secured. The FTT found that it was premature for the Secretary of State to seek to deport Mr Restivo until the final appeal process in Italy in respect of his conviction for the murder of Elisa Claps was determined by the Italian Courts.
As Regulation 21(5)(c) of the 2006 regulations required that the personal conduct of the person represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the FTT considered that as the Mr Restivo was imprisoned as a Category A prisoner serving a 40 year minimum term, that risk “cannot and has not been properly and comprehensively and fairly assessed at the present time”.
Transferring EEA national prisoners to their own Member State, without their consent, in consequence of an expulsion decision.
The UT considered that the First-tier Tribunal misunderstood the legal framework relating to the process for the transfer of EEA nationals sentenced to imprisonment in the United Kingdom to serve their sentence in their own Member State. The UT reasoned as follows:
The Protocol referred to by the FTT had been overtaken by the Framework Decision, precisely because some Member States had not ratified it. Thus, the First-tier Tribunal considered that the making of a deportation order before the transfer arrangements were in place was premature and so, presumably, unlawful. The Upper Tribunal was in no doubt in that regard that the reasoning of the FTT disclosed material and fundamental legal error.
It was important to recognise that the decision of the Secretary of State to make a deportation order was not a decision to make a request for, let alone to secure the transfer of a serving prisoner to another EEA Member State to serve his sentence in that country. Indeed, that was not even a decision to be taken by the Secretary of State because it is a decision for the Secretary of State for Justice to make, she being the competent authority notified to the General Secretariat of the Council pursuant to Article 2 (1) of the Framework Decision. In conflating the two issues the FTT fell into legal error. If a deportation order is made, that will enable the Secretary of State for Justice to consider whether or not to seek to pursue a transfer request.
Although the FTT wrongly thought that the making of the deportation order was premature because the transfer request had not been agreed, in fact precisely the opposite was the case. It would be premature, for two reasons, for the Secretary of State for Justice to have sought to secure agreement of the Italian authorities to a transfer request where no deportation order had been made. That is because it had to be established, regardless of any ambition to transfer the respondent to Italy, that a deportation order could properly be made in the light of the requirements of Regulation 21 of the 2006 Regulations. Secondly, a transfer request cannot be made unless and until a removal or deportation decision is in place.
Article 6(2)(b) of the Framework decision enables the transfer of EEA national prisoners to their own Member State, without their consent, in consequence of an expulsion decision. It is clear from Article 6 that the mechanism of transfer depends upon a prior deportation decision. This is reinforced by the format of the certificate found at Annex 1 to the Framework Decision which, at section (g) (b) requires confirmation of the “expulsion or deportation order…” and, if the order is not included in the judgment itself, as will be the case for those convicted in the United Kingdom, “the name of the authority that issued the order, the date of issue and, if available, the reference number” from which it is clear that the order must have been issued.
Therefore a deportation decision is a necessary pre-condition for the transfer of a prisoner, without his consent, under Article 6(2)(b) of the Framework Decision. Thus, the making of a deportation decision was not premature but an essential step to taken before the mechanism of the Framework Decision could be engaged. It followed that it was an error of law for the First-tier Tribunal to proceed on the basis that the transfer request should have been made before the deportation decision was taken.
As regards the second reason given by the FTT for finding that the making of the deportation order was premature was that Mr Restivo’s onward appeal in Italy in respect of his conviction there for the murder of Elisa Claps was unresolved, the Upper Tribunal was satisfied that this reasoning was also fundamentally flawed such as to disclose material legal error. The deportation order was made as a consequence of Mr Restivo’s conviction for the murder of Ms Barnett. The fact that Mr Restivo was seeking to pursue an appeal against his conviction in Italy was no basis at all to consider that the Secretary of State was not lawfully entitled to proceed to make the deportation decision she did. Indeed, if it were otherwise, the Secretary of State would be precluded from making a deportation decision where any person had unresolved criminal proceedings or appeal rights in another country. There is nothing in the domestic or European jurisprudence to justify such a proposition.
The UT was satisfied that the First-tier Tribunal fell into material legal error in concluding that the decision to make a deportation order was premature because Mr Restivo’s appeal rights in Italy in respect of a different offence altogether were not yet exhausted.
The UT concluded that The European Framework Decision 2008/909/JHA had replaced the framework previously set out in the Council of Europe Convention on the Transfer of Sentenced Persons, itself supplemented by the Protocol of 18 December 1997, to provide the framework within which a request may be made to another Member State for the transfer of an EEA national sentenced in the United Kingdom to serve that sentence in his own country. In the United Kingdom context, it is a precondition for making a transfer request that there be in place a deportation order. A decision to make a deportation order is not a decision to transfer a serving prisoner to another Member State to serve his prison sentence there and so in any appeal against a decision to make a deportation order the Tribunal is not concerned with whether there is any legal impediment to such a transfer taking place.
The UT also observed that there are obvious pragmatic reasons for making a deportation decision in respect of a serving prisoner sufficiently before his earliest release date so that any appeal process pursued can run its course before then, avoiding the possible need for him to be moved into immigration detention, thus extending the length of time he is detained. There may be pragmatic obstacles to removal by the Secretary of State of a nature that do not prevent a voluntary departure should the person concerned choose to do so at some future date. The making of a deportation order would prevent re-entry. There may be good reason why the Secretary of State, even though removal for one reason or another cannot be effected immediately, wishes to make a deportation order, not simply to establish the principle inherent in it, but also to invalidate any leave previously given.
Point of assessment of whether Mr Restivo represents a genuine, present and sufficiently serious threat
The Upper Tribunal found as follows:
The FTT had considered that as Mr Restivo had a further 37 years of his sentence to serve, therefore the risk posed by him could not and had not been properly and comprehensively and fairly assessed so that it was not established for the purposes of Regulation 21(5)(c) that he represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
The UT considered that it was plain both that the FTT was required to carry out the assessment of threat or risk that they declined to, and that there was ample material before them to inform that assessment. That material was in the form of the decision letter which identified all that the Secretary of State relied upon in asserting that threat was established, the sentencing remarks of the judge, the “Categorisation Document” representing the decision of the Prison Governor as to Mr Restivo’s designation as a Category A prisoner, explaining why the conclusion reached was that: “Mr Restivo continues to pose a high risk to the public and a serious risk of re-offending in a similar unlawful way if at large.”
The NOMs report, was also discussed by the FTT in their decision. The fact that the FTT detected tensions in some of the views expressed as to the risk of re-offending was no basis upon which to consider that no assessment of risk should be made.
It was also apparent also that the First-tier Tribunal fell into error in conflating issues of the existence of risk or the risk of reoffending and the management of that risk. It might well be that while he serves his sentence as a Category A prisoner there is a very much reduced risk of any reoffending, even though he was described by the sentencing judge as “a man capable of inhuman depravity” and “a cold, depraved, calculating killer”. If the approach of the First-tier Tribunal were maintained, that would defeat the objective and purpose of the European prisoner transfer arrangements because, if it were the case that a serving prisoner must be regarded as a person who, on account of being in prison, did not represent such a risk, then no removal or deportation decision could be made and so the result would be that no deportation order could be made until release from prison was imminent and so no transfer under the Framework Decision could ever be made.
The UT concluded that where the personal conduct of a person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the fact that such threat is managed while that person serves his or her prison sentence is not itself material to the assessment of the threat he or she poses. The threat exists, whether or not it cannot generate further offending simply because the person concerned, being imprisoned, has significantly less opportunity to commit further criminal offences.
The UT was satisfied that the First-tier Tribunal made errors of law material to the outcome of the appeal such that the decision to allow the appeal must be set aside. It was therefore necessary for the Upper Tribunal to remake the decision on Mr Restivo’s appeal against the deportation order made against him.
The UT reached a worrying conclusion at paragraph 34 of their decision: “Where the personal conduct of a person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, the fact that such threat is managed while that person serves his or her prison sentence is not itself material to the assessment of the threat he or she poses. The threat exists, whether or not it cannot generate further offending simply because the person concerned, being imprisoned, has significantly less opportunity to commit further criminal offences”. It should then come as no surprise that the Secretary of State will seek to rely upon this conclusion when making deportation decisions, thus potentially affecting arguments advanced in EEA deportation appeals.
Sentence plans and OASys reports are usually prepared during the time a person is serving their sentence. Sentence plans describe the activities that someone should complete while in prison and on licence aiming to reduce the risk of reoffending and serious harm and are also intended to support resettlement. The probation and prison services use a system called the Offender Assessment System (OASys) for assessing the risks and needs of an offender. OASYs is designed to assess matters such as how likely an offender is to reoffend and assess risk of serious harm. It is also whilst serving their sentence that a person can undertake relevant drug and alcohol programmes. Courses as regards Assertiveness & Decision making can also be undertaken in prison. Also taken in prison are programmes such as the Sycamore Tree Programme which includes the following; the Impact of Crime; awareness of Victim’s needs; taking Responsibility; Reconciliation; saying sorry, showing remorse and Act of Restitution. Further, the RESOLVE programme can be taken whilst serving a sentence. RESOLVE is a moderate intensity cognitive-behavioural intervention that aims to reduce violence in medium risk adult male offenders. The programme includes group and individual sessions and is suitable for offenders with a history of reactive or instrumental violence.
An EEA national having undertaken such courses and programmes whilst in prison, the Upper Tribunal’s conclusion that the fact that a threat is managed while that person serves his prison sentence is not itself material to the assessment of the threat he poses, may serve to limit the effectiveness of arguments utilized in EEA deportation appeals in the immigration Tribunal in cases dissimilar to Mr Restivo’s, more so when seeking to advance issues on rehabilitation.
House of Commons Hansard, Removal of Foreign National Offenders and EU Prisoners, 6 June 2016, Volume 611, records:
“…….Over 6,500 of the FNOs in the UK are still serving a custodial sentence. The Ministry of Justice has been working to remove EU prisoners under the EU prisoner transfer framework decision, which is a compulsory means of prisoner transfer that allows us to send foreign criminals back to their home country to serve their sentence. The record number of FNO deportations we have achieved has been due to changes made by the Government. We have reset the balance between article 8 of the European convention on human rights and the public interest in deportation cases. We have also introduced a “deport first, appeal later” power, which means foreign national offenders may appeal against deportation only from their home country, unless they will face a real risk of serious irreversible harm there. More than 3,500 foreign national offenders have been removed since that came into force in July 2014, and many more are going through the system………..”– https://hansard.parliament.uk/commons/2016-06-06/debates/1606066000003/RemovalOfForeignNationalOffendersAndEUPrisoners