[2006] UKAIT 53
- Case title: MG and VC (EEA Regulations 2006, "Conducive" deportation)
- Appellant name: MG and VC
- Status of case: Reported
- Hearing date:
- Promulgation date:
- Publication date:
- Last updated on:
- Country: Ireland
- Judges: Mr C M G Ockelton, Mr J Freeman, Mr A Jordan
- Keywords EEA Regulations 2006, "Conducive" deportation
The decision
MG and VC (EEA Regulations 2006; “conducive” deportation) Ireland [2006] UKAIT 00053
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Field House Date of Hearing: 23 May 2005
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Freeman
Senior Immigration Judge Jordan
Between
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
and
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the first Appellant: Ms N Rogers, instructed by Luqmani Thompson & Partners
For the second Appellant: Mr Luqmani of Luqmani Thompson & Partners
For the Respondent: Mr Montilla, Home Office Presenting Officer
(1) The Immigration (European Economic Area) Regulations 2006 contain the law relating to all EEA appeals dealt with from the date of the date of their commencement: the old Regulations are not applicable to the old appeals; (2) A decision to deport an EEA national is a decision “under” the Regulations and is therefore a “relevant decision” for the purposes of them, however it is expressed; (3) Regulation 21 (and the provisions of Directive 2004/38/EC) may make it more difficult for the Secretary of State to remove or deport an EEA national on the ground of criminal conduct than appeared to be the case previously.
DETERMINATION AND REASONS
1. These two reconsiderations were heard together. The Appellants are citizens of European Union countries who have successfully appealed against decisions that they should be deported from the United Kingdom on the ground that their deportation is conducive to the public good. The reconsideration is, therefore, in each case, at the instance of the Respondent. These cases are the first opportunity that a senior panel of the Tribunal has had to examine Directive 2004/38/EC of the European Parliament and of the Council and the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) in the context of the present intense public interest in the deportation of non-UK nationals convicted of criminal offences.
2. In order to set that context a little more widely, it may be appropriate briefly to indicate the principles applying to such action. A person who is not a British citizen is, under s3(5)(a) of the Immigration Act 1971 as amended, liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. In addition, by s3(6) of the same Act, a person who is not a British citizen is liable to deportation in certain circumstances if, on his conviction for an offence punishable with imprisonment, he is recommended for deportation by the court. The power under s3(5)(a) is not limited to those convicted of criminal offences, although the vast majority of decisions made under that section relate to those who have been convicted of criminal offences.
3. The decision to make a deportation order is never automatic. Every case has to be considered on its merits, as provided for in the Immigration Rules, currently in paragraph 364 of HC 395. Before making a decision to deport a person, the Secretary of State or his officer is required to take into account all relevant factors known to him, including age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; previous criminal record and the nature of any offence of which the person has been convicted; compassionate circumstances; and any representations received on the person’s behalf. The duty to take all relevant circumstances into account applies whether the liability to deportation arises under s3(5) or s3(6) of the 1971 Act. Even a recommendation by a criminal court, therefore, does not and cannot lead automatically to deportation. How many such recommendations do result in deportation is not known: from research undertaken by the Sentencing Guidelines Panel (Consultation Paper on Recommendations for Deportation (2005), p3, notes 3-4) it appears that 1996 was the last year for which such figures were routinely collected.
4. The Refugee Convention, as is well known, prohibits the removal of refugees to their own countries if they have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The prohibition on removal of Convention refugees is, however, removed in cases where the refugee has committed a “particularly serious crime” and so constitutes a danger to the community of the country in which he is living. For the purposes of United Kingdom law, the phrase in inverted commas is defined by s72(2) of the Nationality, Immigration and Asylum Act 2002 as meaning a crime resulting, on conviction in the United Kingdom, to a sentence of at least two years’ imprisonment. (There are similar provisions applying to those convicted outside the United Kingdom.) It is not known whether this provision of United Kingdom law amounts to a correct interpretation of the terms of the Convention.
5. Although in the circumstances we have just mentioned a person cannot escape deportation by claiming the benefits of the Refugee Convention, he cannot be deported if his deportation would breach his human rights. The legislation to that effect derives from the Human Rights Act 1998, which, with associated provisions relating to immigration, and changes to the Immigration Rules, came into effect on 2 October 2000. It follows that a person may not in practice be deported if the only country to which he could be deported is one where he would be at risk of torture or inhuman or degrading treatment or punishment, because his removal there would be a breach of his rights under Article 3. Other Articles of the European Convention on Human Rights may also have a practical effect on deportation cases, in particular Article 2 (right to life) and Article 8 (right to respect for private and family life). It is sometimes said that a criminal’s invocation of his own human rights is inappropriate, or undeserved, or cynical. The position is, however, that the law of this country is that those rights are to be respected.
6. There is no doubt in general that the decision to make a deportation order on conducive grounds is, in part at least, a response to the individual’s conduct. So much is clear from the fact that the recommendation for deportation can be made by a criminal court as part of the way in which it deals with an offender on conviction, and can itself be the subject of an appeal on sentence to the Court of Appeal (Criminal Division). In cases where no such recommendation is made, the assessment of the “public good” clearly also includes the need to respond firmly to the commission of a serious crime (see N (Kenya) v SSHD [2004] EWCA Civ 1094, especially paragraphs [64]-[65] per May LJ, and [94] per Judge LJ). Although any recommendation for deportation has to be made at the time of sentence, however, and despite the fact that a deportation decision will be, in part, a response to the individual’s past conduct, the appropriate time to make the decision will be shortly before it is to be carried out: that is to say, towards the end of a prison sentence (Chindamo v SSHD 00/TH/02345).
7. When there has been a decision to make a deportation order, the person affected has a right of appeal. The availability and possible length of the appellate process has expanded considerably owing to legislative changes in recent years. Before 2000, decisions to make deportation orders on conducive grounds could be appealed only to the Immigration Appeal Tribunal, the upper tier of the old Immigration Appellate Authority. Thus, all these cases were considered by a relatively small number of individuals, who acquired some expertise in them. Under the provisions of the 1999 Act, conducive deportation appeals went at first instance to an Adjudicator, like all other immigration appeals, and so, like all other immigration appeals, carried the possibility of a further appeal to the Immigration Appeal Tribunal. That further appeal was restricted by the Nationality, Immigration and Asylum Act 2002 to an appeal on a point of law, and now takes the form of a reconsideration on a point of law.
8. Decisions to make a deportation order following the recommendation of a court could not be the subject of an appeal to the Immigration Appellate Authority until s82 of the 2002 Act came into force on 1 April 2003. All decisions to make deportation orders are now appealable and, once the appellate decision has been made, there may be a reconsideration within the terms of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
9. The deportation of nationals of countries in the European Union and the European Economic Area has been subject to special restrictions from the beginning. Directive 64/221/EEC prevented the expulsion of a person exercising Treaty rights, or a member of his family, save on grounds of public policy, public security or public health. Article 3 of that Directive contains the following provisions:
“1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.
2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.
…”
10. In Monsignore v Oberstadtdirektor der Stadt Köln (Case 67/74) [1975] ECR 297, the German authorities sought to deport an Italian worker who had accidentally killed his brother whilst handling a gun which he had obtained apparently illegally. There was no suggestion that he would commit a similar offence again and the intention was that he be deported as a general deterrent to others. The European Court of Justice held that Article 3(2) prohibited deportation of an EEC national for that reason. In R v Bouchereau [1978] QB 732, where a French national had pleaded guilty to offences relating to prohibited drugs, the ECJ said that:
“Recourse by a national or authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society.”
11. The Court continued by indicating that:
“Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.”
12. Subsequent UK cases, in particular R v SSHD ex p Marchon [1993] Imm AR 384, have held that particularly disgraceful criminal conduct may of itself merit the reaction of deportation of an EEA national without reference to propensity to re-offend: but Nazli v Stadt Nürnberg, (Case C-340/97), [2000] ECR I-957, suggests clearly that those views were unsound as a matter of Community law.
13. The provisions now in force derive from the Directive 2004/38/EC whose purpose is in part to promote the notion of citizenship of the Union as set out in part 2 of the consolidated version of the Treaty. In doing so, it adopts wording which attempts to set out the effect of the development of the rights of nationals of EU countries not to be removed from countries in which they are exercising Treaty rights. The underlying notion is no doubt that for many purposes a citizen of an EU country is to be regarded as in his own country when he is exercising a Treaty right within another European Union country.
14. For the purposes of English law, the Immigration (European Economic Area) Regulations 2006 implement the Directive and are the provisions with which we are directly concerned. The relevant Regulations are the following:
“Permanent right of residence
15. – (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;
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
(c) a worker or self-employed person who has ceased activity;
(d) the family member of a worker or self-employed person
(e) a person who was the family member of a worker or self-employed where –
(i) the worker or self-employed person has died;
(ii) the family member resided with him immediately before his death; and
(iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;
(f) a person who –
(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii) was, at the end of that period, a family member who has returned the right of residence.
(2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.
(3) But this regulation is subject to regulation 19(3)(b)
Exclusion and removal from the United Kingdom
19. – (1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21
…
(3) Subject to paragraph (4) and (5) [which are not relevant in these appeals], a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if –
(a) he does not have or ceases to have a right to reside under these Regulations; or
(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
…
Decisions taken on public policy, public security and public health ground
21. – (1) In these 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 which 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
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention of 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 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.
…
Person subject to removal
24. – (1) This regulation applies to a person whom it has been decided to remove from the United Kingdom in accordance with regulation 19(3).
…
(3) Where the decision is under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly.
…
SCHEDULE 4
TRANSITIONAL PROVISIONS
Decisions to remove under the 2000 Regulations
4. – (1) A decision to remove a person under regulation 21(3)(a) of the 2000 Regulations shall, after 29th April 2006, be treated as a decision to remove that person under regulation 19(3)(a) of these Regulations.
(2) A decision to remove a person under regular 21(3)(b) of the 2000 Regulations, including a decision which is treated as a decision to remove a person under that regulation by virtue of regulation 6(3)(a) of the Accession Regulations, shall, after 29th April 2006, be treated as a decision to remove that person under regulation 19(3)(b) of these Regulations.
(3) A deportation order made under section 5 of the 1971 Act by virtue of regulation 26(3) of the 2000 Regulations shall, after 29th April 2006, be treated as a deportation made under section 5 of the 1971 Act by virtue of regulation 24(3) of these Regulations.
Appeals
5. – (1) Where an appeal against an EEA decision under the 2000 Regulations is pending immediately before 30th April 2006 that appeal shall be treated as a pending appeal against the corresponding EEA decision under these Regulations.
(2) Where an appeal against an EEA decision under the 2000 Regulations has been determined, withdrawn or abandoned it shall, on and after 30th April 2006, be treated as an appeal against the corresponding EEA decision under these Regulations which has been determined, withdrawn or abandoned, respectively.
(3) For the purpose of this paragraph –
(a) a decision to refuse to admit a person under these Regulations corresponds to a decision to refuse to admit that person under the 2000 Regulations;
(b) a decision to remove a person under regulation 19(3)(a) of these Regulations corresponds to a decision to remove that person under regulation 21(3) of the 2000 Regulations;
(c) a decision to remove a person under regulation 19(3)(b) of these Regulations corresponds to a decision to remove that person under regulation 21(3)(b) of the 2000 Regulations, including a decision which is treated as a decision to remove a person under regulation 21(3)(b) of the 2000 Regulations by virtue of regulation 6(3)(a) of the Accession Regulations;
(d) a decision to refuse to revoke a deportation order made against a person under these Regulations corresponds to a decision maker to refuse to revoke a deportation order made against that person under the 2000 Regulations, including a decision which is treated as a decision to refuse to revoke a deportation order under the 2000 Regulations by virtue of regulation 6(3)(b) of the Accession Regulations;
(e) a decision not to issue or renew or to revoke an EEA family permit, a registration certificate or a residence card under these Regulations corresponds to a decision not to issue or renew or to revoke an EEA family permit, a residence permit or a residence document under the 2000 Regulations, respectively.”
15. We need only add that the previous statutory regime, contained in the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326 as amended) is for present purposes entirely revoked with no savings or transitional provisions.
16. The first thing that is apparent is that the new Regulations came into force immediately on 30 April 2006, and that the previous law is no longer in effect. The effect on existing decisions and appeals is quite remarkable: they are to be treated as decisions and appeals under the new Regulations. The consequence may be that a decision lawful when it was made, and a determination by the Tribunal containing no error of law when it was made, may now disclose an error of law because of the retrospective change of the decision and its authority.
17. Those considerations apply directly in relation to decisions under the previous Regulations and appeals against EEA decisions under those Regulations.
18. The precise interaction between the provisions of the Immigration Acts and the EEA Regulations is somewhat obscure. Fortunately, we do not need to treat it in detail for the purposes of these appeals. There are provisions providing rights of appeal against decisions made under the Regulations: those rights are not exactly the same as the rights of appeal against immigration decisions, provided by the 2002 Act, but are given with reference to provisions of that Act. As we understand the position, however, where the Immigration Acts empower the Secretary of State to make a decision against a person who is not a national of the United Kingdom, such decisions can (unless the contrary appears) be made against a person who is an EEA national or who is or would be a qualified person under the EEA Regulations. In those circumstances, the decision will, generally speaking, not be a decision under the EEA Regulations: it will be a decision under the relevant Act.
19. The EEA Regulations are not solely concerned with appeals: the Directive which they implement attributes substantive rights to those governed by them. So a person who appeals under the 2002 Act against an immigration decision may invoke the Directive as implemented by the Regulations indirectly under s84(1)(d), which permits him to appeal on the ground “that the appellant is an EEA national or a member of a family of an EEA national and the decision breaches the appellant’s rights under the community treaties in respect of entry to or residence in the United Kingdom”.
20. In those circumstances, as we have indicated, the applicable law will be that of the new Regulations, because the old Regulations have been revoked. The effect is, as it ought to be, that all appeals raising issues under Directive 2004/38/EC and decided after 30 April 2006 are to be decided under the provisions of that Directive as implemented by the Regulations.
21. The notices of decision in the present appeals are both in similar form. Each recites the appellant’s conviction of an offence and indicates that the Secretary of State is satisfied that the appellant “would pose a threat to the requirements of public policy if allowed to remain in the United Kingdom “and that in view of this conviction the Secretary of State deems it to be conducive to the public good to make a deportation order against you”. The decision to make such an order by virtue of section 3(5)(a) of the 1971 Act and the proposal to give directions for the appellant’s removal to his country of nationality follow.
22. Each of the appellants has appealed on the grounds specified in section 84 (1)(d).
23. Give that the decisions are avowedly made under the 1971 Act rather that the Regulations, the question may be asked whether these decisions are in truth “EEA decisions”, defined in Regulation 2 as “a decision under these Regulations.” We are confident that these are EEA decisions. The reasoning is as follows.
24. First, the Directive, and the Regulations implementing it, give substantive rights to EEA nationals. One of those rights is the right of a person otherwise entitled to reside in the UK not to be removed save in circumstances permitted by the Directive and regulation 19(3). Secondly, Regulation 24 applies to all decisions to remove that are made “in accordance with regulation 19(3)”. Thirdly, any decision to remove an EEA national with a right of residence that was not in accordance with regulation 19(3) would be unlawful, so regulation 24 applies to all decisions to remove an EEA national with a right of residence. Fourthly, given that regulation 24 applies, the decision is a decision under (not merely in accordance with) the regulations even if (by virtue of Regulation 24(3)) it is worded as if the 1971 Act , with no intrusion of EU law, were the empowering provision.
25. (If it were to be said (which in these cases it has not been) that decisions phrased in this way are not “EEA decisions”, there would be no difference in substance, because in that case the Directive would have direct effect on these cases and the terms of Articles 27 and 28, which are for all practical purposes the same as those of regulations 19 and 21 would apply and achieve the same result as if the decisions were “EEA decisions” governed by the Regulations. We should add that the reasoning in the previous paragraph is not affected by the consideration that the present decisions were made before the new Regulations came into force because the 2000 Regulations had, in regulations 2, 21(3) and 26, provisions identical to those in regulations 2, 19(3) and 24 to which we refer there.)
26. These appeals are undoubtedly to be considered within the calculus of removals for which provision is made in the new Regulations. We remind ourselves that under those Regulations an EEA national who has a permanent right of residence in the United Kingdom can be removed only on “serious grounds of public policy or public security”; if the EEA national is under the age of eighteen or has resided in the United Kingdom for more than ten years he can be removed only on ”imperative grounds of public security”. The meaning of the last phrase is not absolutely clear. What is clear is that the ground for removing any EEA national with a right of residence is more strongly expressed than it was under the previous regulations, by the insertion of the word “serious” before “grounds”. Further, in the case of a minor or a long-term resident even serious grounds are not enough and no grounds merely of public policy are enough. The word of intensification is “imperative” and the grounds must be grounds of “public security”. At he hearing, Mr Montilla indicated that his instructions were that the phrase “imperative grounds of public security” was a reference to the commission or suspicion of commission of terrorist offences. It may well be that that is what is intended by that phrase in the English version of the Directive and in the Regulations, bearing in mind the similar specialised meaning that ”security” has in the 1971 (and subsequent) Acts. Whether or not that is so, we do not think that it is a phrase which is appropriate to cover the ordinary risk to society arising from the commission of further offences by a convicted criminal. That is the risk which has in the past been met by removal decisions based on grounds of “public policy”.
27. Where regulation 21(3) applies to an individual (because he is an EEA national with a right of residence, but not a minor or a long term resident) he may be removed as previously on the grounds that there is a risk of his committing further offences, with the proviso that the risk of harm must now constitute serious grounds of public policy for his removal. Where regulation 21(4) applies, (that is where the individual is a minor or a long-term resident) the ground must now evidently be both qualitatively and quantitatively more serious. We therefore doubt whether the words in question are intended to apply in any general sense to even a serious risk of the commission of even quite serious criminal offences.
28. The first appellant was convicted of robbery at Warwick Crown Court on 23 January 2001. The Immigration Judge records in his determination as follows:
“15. In carrying out he balancing exercise which applies I have looked first at the circumstances of the offence for which the Appellant was imprisoned. In his sentencing remarks Mr. Justice Goldring said
‘as you now appreciate, you became involved in a serious robbery. In the middle of the afternoon you went into a shop: you were armed with a steak knife; you threatened the shopkeeper with it; you took money. I accept that you were drunk. The effect on the shopkeeper has been considerable. She says in her statement “I feel this incident has changed my life and that I now lack confidence”.’
16. The pre-sentence report made reference to the Appellant’s military service career including two tours of duty in Lebanon with the UN Peacekeeping Force, but reference was also made to the Appellant’s problems relating to alcohol abuse which had contributed to the breakdown of his marriage and difficulties in other personal relationships. The probation officer who prepared the report assessed he risk of re- offending as low. However, the pattern of offending, starting late but progressing swiftly to the current serious offence was a cause for concern. The probation concluded that if the Appellant was indeed to benefit from the inevitable prison term he would need to serve a fairly substantial term., enabling him to get access to sustained help. It was against that background that the Appellant was sentenced to 4 ½ years.
…
18. I note that the Appellant has been granted early release on licence on two occasions but on each occasion he broke the terms of his licence and was returned to prison.
…
21. It appears that the Appellant has behaved well while in prison.
…
He has a good attendance record and has developed very good relationships with PE staff and other gym users.
…
The Appellant is described as punctual, polite and courteous and is enthusiastic and well motivated. He acts on his own initiative ensuring that facility areas and equipment is working effectively.
…
23. I formed the view that the Appellant has a clear insight into his drink related problems which he was perfectly willing to acknowledge. During cross-examination the Appellant acknowledged that all his problems were due to excessive drinking. He said that drinking would conflict with his fitness training and that he was determined to take advantage of whatever help was available to ensure that there was no repetition. The Appellant said that he had receive considerable assistance from a counsellor while in prison. He said upon his release he would go to Alcoholics Anonymous for help if that were necessary and that he was determined not to return to his former ways.
…
26. I am satisfied from all the evidence which I heard and read that the Appellant is motivated to lead an industrious and crime free life on his return from prison. A great deal will undoubtedly depend on his ability to refrain from alcohol abuse but I am satisfied that there are good reasons to suppose that the Appellant has both the motivation and the ability to obtain and professional help in order to obviate any risk that might exist.
29. The Immigration Judge thus allowed the appeal under the 2000 Regulations. In our view he was entirely right to do so. Removal of an EEA national is not to be based on past conduct but on future risk, and, given his findings as to the risk of re-offending and the intention to keep away from alcohol any decision to the contrary would probably have been perverse.
30. In this reconsideration we apply the 2006 Regulations, under which the Immigration Judge’s decision is, if anything, even less subject to challenge. Applying the principles set out in regulation 21(5) it would be impossible to say that the appellant’s deportation is justified on “serious grounds of public policy or public security”.
31. The second appellant came to the United Kingdom to live with her mother in 1993, when she was nine years old. She has been resident here ever since. In April 2002 she was convicted an offence of importation of class A drugs and was sentenced to eight and a half years imprisonment. The Secretary of State’s letter dated 23 November 2005 challenges the appellant’s account of her residence in the United Kingdom, but it is no longer suggested on the respondent’s behalf that she has not been resident here since 1993 or 1994. The letter goes on to say:
“Although there is no clear evidence that you will re-offend, the offence for which you have been convicted is considered to constitute a threat to the requirements of public policy on the basis of conduct alone.”
32. The Immigration Judge indicated, in a short determination, that she was satisfied that the appellant would not commit any further offences and allowed the appeal because she considered that:
“there is no likelihood she will commit further offences or in some other way infringe public security or policy”.
33. The Secretary of State’s grounds for reconsideration cite Bouchereau and Marchon and assert that the severity of the offence was sufficient to warrant a deportation order, particularly because it was an offence related to drugs. We have to say that we should have had some concerns about the Immigration Judge’s decision if it had not been for the coming into force of the new Regulations.
34. Under those Regulations, however, an EEA national who has been resident in the United Kingdom for ten years or is a minor can be removed only on “imperative grounds of public security”. The appellant is no longer a minor (although she was when she committed the offence for which she was convicted). Her residence in the United Kingdom has partly been in prison, but there is no doubt that that constitutes “residence” for the purposes of the Regulations. The test of “imperative grounds of public security” is at the very highest level of the calculus introduced by the 2006 Regulations and Directive 2004/38/EC. There are no such grounds justifying the removal of this appellant. Any error made by the Immigration Judge was accordingly not material.
35. For the forgoing reasons we affirm the Immigration Judge’s decision in each case.
C M G OCKELTON
DEPUTY PRESIDENT
Date:
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Field House Date of Hearing: 23 May 2005
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Freeman
Senior Immigration Judge Jordan
Between
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
and
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the first Appellant: Ms N Rogers, instructed by Luqmani Thompson & Partners
For the second Appellant: Mr Luqmani of Luqmani Thompson & Partners
For the Respondent: Mr Montilla, Home Office Presenting Officer
(1) The Immigration (European Economic Area) Regulations 2006 contain the law relating to all EEA appeals dealt with from the date of the date of their commencement: the old Regulations are not applicable to the old appeals; (2) A decision to deport an EEA national is a decision “under” the Regulations and is therefore a “relevant decision” for the purposes of them, however it is expressed; (3) Regulation 21 (and the provisions of Directive 2004/38/EC) may make it more difficult for the Secretary of State to remove or deport an EEA national on the ground of criminal conduct than appeared to be the case previously.
DETERMINATION AND REASONS
1. These two reconsiderations were heard together. The Appellants are citizens of European Union countries who have successfully appealed against decisions that they should be deported from the United Kingdom on the ground that their deportation is conducive to the public good. The reconsideration is, therefore, in each case, at the instance of the Respondent. These cases are the first opportunity that a senior panel of the Tribunal has had to examine Directive 2004/38/EC of the European Parliament and of the Council and the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) in the context of the present intense public interest in the deportation of non-UK nationals convicted of criminal offences.
2. In order to set that context a little more widely, it may be appropriate briefly to indicate the principles applying to such action. A person who is not a British citizen is, under s3(5)(a) of the Immigration Act 1971 as amended, liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. In addition, by s3(6) of the same Act, a person who is not a British citizen is liable to deportation in certain circumstances if, on his conviction for an offence punishable with imprisonment, he is recommended for deportation by the court. The power under s3(5)(a) is not limited to those convicted of criminal offences, although the vast majority of decisions made under that section relate to those who have been convicted of criminal offences.
3. The decision to make a deportation order is never automatic. Every case has to be considered on its merits, as provided for in the Immigration Rules, currently in paragraph 364 of HC 395. Before making a decision to deport a person, the Secretary of State or his officer is required to take into account all relevant factors known to him, including age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; previous criminal record and the nature of any offence of which the person has been convicted; compassionate circumstances; and any representations received on the person’s behalf. The duty to take all relevant circumstances into account applies whether the liability to deportation arises under s3(5) or s3(6) of the 1971 Act. Even a recommendation by a criminal court, therefore, does not and cannot lead automatically to deportation. How many such recommendations do result in deportation is not known: from research undertaken by the Sentencing Guidelines Panel (Consultation Paper on Recommendations for Deportation (2005), p3, notes 3-4) it appears that 1996 was the last year for which such figures were routinely collected.
4. The Refugee Convention, as is well known, prohibits the removal of refugees to their own countries if they have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The prohibition on removal of Convention refugees is, however, removed in cases where the refugee has committed a “particularly serious crime” and so constitutes a danger to the community of the country in which he is living. For the purposes of United Kingdom law, the phrase in inverted commas is defined by s72(2) of the Nationality, Immigration and Asylum Act 2002 as meaning a crime resulting, on conviction in the United Kingdom, to a sentence of at least two years’ imprisonment. (There are similar provisions applying to those convicted outside the United Kingdom.) It is not known whether this provision of United Kingdom law amounts to a correct interpretation of the terms of the Convention.
5. Although in the circumstances we have just mentioned a person cannot escape deportation by claiming the benefits of the Refugee Convention, he cannot be deported if his deportation would breach his human rights. The legislation to that effect derives from the Human Rights Act 1998, which, with associated provisions relating to immigration, and changes to the Immigration Rules, came into effect on 2 October 2000. It follows that a person may not in practice be deported if the only country to which he could be deported is one where he would be at risk of torture or inhuman or degrading treatment or punishment, because his removal there would be a breach of his rights under Article 3. Other Articles of the European Convention on Human Rights may also have a practical effect on deportation cases, in particular Article 2 (right to life) and Article 8 (right to respect for private and family life). It is sometimes said that a criminal’s invocation of his own human rights is inappropriate, or undeserved, or cynical. The position is, however, that the law of this country is that those rights are to be respected.
6. There is no doubt in general that the decision to make a deportation order on conducive grounds is, in part at least, a response to the individual’s conduct. So much is clear from the fact that the recommendation for deportation can be made by a criminal court as part of the way in which it deals with an offender on conviction, and can itself be the subject of an appeal on sentence to the Court of Appeal (Criminal Division). In cases where no such recommendation is made, the assessment of the “public good” clearly also includes the need to respond firmly to the commission of a serious crime (see N (Kenya) v SSHD [2004] EWCA Civ 1094, especially paragraphs [64]-[65] per May LJ, and [94] per Judge LJ). Although any recommendation for deportation has to be made at the time of sentence, however, and despite the fact that a deportation decision will be, in part, a response to the individual’s past conduct, the appropriate time to make the decision will be shortly before it is to be carried out: that is to say, towards the end of a prison sentence (Chindamo v SSHD 00/TH/02345).
7. When there has been a decision to make a deportation order, the person affected has a right of appeal. The availability and possible length of the appellate process has expanded considerably owing to legislative changes in recent years. Before 2000, decisions to make deportation orders on conducive grounds could be appealed only to the Immigration Appeal Tribunal, the upper tier of the old Immigration Appellate Authority. Thus, all these cases were considered by a relatively small number of individuals, who acquired some expertise in them. Under the provisions of the 1999 Act, conducive deportation appeals went at first instance to an Adjudicator, like all other immigration appeals, and so, like all other immigration appeals, carried the possibility of a further appeal to the Immigration Appeal Tribunal. That further appeal was restricted by the Nationality, Immigration and Asylum Act 2002 to an appeal on a point of law, and now takes the form of a reconsideration on a point of law.
8. Decisions to make a deportation order following the recommendation of a court could not be the subject of an appeal to the Immigration Appellate Authority until s82 of the 2002 Act came into force on 1 April 2003. All decisions to make deportation orders are now appealable and, once the appellate decision has been made, there may be a reconsideration within the terms of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
9. The deportation of nationals of countries in the European Union and the European Economic Area has been subject to special restrictions from the beginning. Directive 64/221/EEC prevented the expulsion of a person exercising Treaty rights, or a member of his family, save on grounds of public policy, public security or public health. Article 3 of that Directive contains the following provisions:
“1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.
2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.
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10. In Monsignore v Oberstadtdirektor der Stadt Köln (Case 67/74) [1975] ECR 297, the German authorities sought to deport an Italian worker who had accidentally killed his brother whilst handling a gun which he had obtained apparently illegally. There was no suggestion that he would commit a similar offence again and the intention was that he be deported as a general deterrent to others. The European Court of Justice held that Article 3(2) prohibited deportation of an EEC national for that reason. In R v Bouchereau [1978] QB 732, where a French national had pleaded guilty to offences relating to prohibited drugs, the ECJ said that:
“Recourse by a national or authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society.”
11. The Court continued by indicating that:
“Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.”
12. Subsequent UK cases, in particular R v SSHD ex p Marchon [1993] Imm AR 384, have held that particularly disgraceful criminal conduct may of itself merit the reaction of deportation of an EEA national without reference to propensity to re-offend: but Nazli v Stadt Nürnberg, (Case C-340/97), [2000] ECR I-957, suggests clearly that those views were unsound as a matter of Community law.
13. The provisions now in force derive from the Directive 2004/38/EC whose purpose is in part to promote the notion of citizenship of the Union as set out in part 2 of the consolidated version of the Treaty. In doing so, it adopts wording which attempts to set out the effect of the development of the rights of nationals of EU countries not to be removed from countries in which they are exercising Treaty rights. The underlying notion is no doubt that for many purposes a citizen of an EU country is to be regarded as in his own country when he is exercising a Treaty right within another European Union country.
14. For the purposes of English law, the Immigration (European Economic Area) Regulations 2006 implement the Directive and are the provisions with which we are directly concerned. The relevant Regulations are the following:
“Permanent right of residence
15. – (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;
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
(c) a worker or self-employed person who has ceased activity;
(d) the family member of a worker or self-employed person
(e) a person who was the family member of a worker or self-employed where –
(i) the worker or self-employed person has died;
(ii) the family member resided with him immediately before his death; and
(iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;
(f) a person who –
(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii) was, at the end of that period, a family member who has returned the right of residence.
(2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.
(3) But this regulation is subject to regulation 19(3)(b)
Exclusion and removal from the United Kingdom
19. – (1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21
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(3) Subject to paragraph (4) and (5) [which are not relevant in these appeals], a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if –
(a) he does not have or ceases to have a right to reside under these Regulations; or
(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
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Decisions taken on public policy, public security and public health ground
21. – (1) In these 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 which 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
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention of 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 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.
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Person subject to removal
24. – (1) This regulation applies to a person whom it has been decided to remove from the United Kingdom in accordance with regulation 19(3).
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(3) Where the decision is under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly.
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SCHEDULE 4
TRANSITIONAL PROVISIONS
Decisions to remove under the 2000 Regulations
4. – (1) A decision to remove a person under regulation 21(3)(a) of the 2000 Regulations shall, after 29th April 2006, be treated as a decision to remove that person under regulation 19(3)(a) of these Regulations.
(2) A decision to remove a person under regular 21(3)(b) of the 2000 Regulations, including a decision which is treated as a decision to remove a person under that regulation by virtue of regulation 6(3)(a) of the Accession Regulations, shall, after 29th April 2006, be treated as a decision to remove that person under regulation 19(3)(b) of these Regulations.
(3) A deportation order made under section 5 of the 1971 Act by virtue of regulation 26(3) of the 2000 Regulations shall, after 29th April 2006, be treated as a deportation made under section 5 of the 1971 Act by virtue of regulation 24(3) of these Regulations.
Appeals
5. – (1) Where an appeal against an EEA decision under the 2000 Regulations is pending immediately before 30th April 2006 that appeal shall be treated as a pending appeal against the corresponding EEA decision under these Regulations.
(2) Where an appeal against an EEA decision under the 2000 Regulations has been determined, withdrawn or abandoned it shall, on and after 30th April 2006, be treated as an appeal against the corresponding EEA decision under these Regulations which has been determined, withdrawn or abandoned, respectively.
(3) For the purpose of this paragraph –
(a) a decision to refuse to admit a person under these Regulations corresponds to a decision to refuse to admit that person under the 2000 Regulations;
(b) a decision to remove a person under regulation 19(3)(a) of these Regulations corresponds to a decision to remove that person under regulation 21(3) of the 2000 Regulations;
(c) a decision to remove a person under regulation 19(3)(b) of these Regulations corresponds to a decision to remove that person under regulation 21(3)(b) of the 2000 Regulations, including a decision which is treated as a decision to remove a person under regulation 21(3)(b) of the 2000 Regulations by virtue of regulation 6(3)(a) of the Accession Regulations;
(d) a decision to refuse to revoke a deportation order made against a person under these Regulations corresponds to a decision maker to refuse to revoke a deportation order made against that person under the 2000 Regulations, including a decision which is treated as a decision to refuse to revoke a deportation order under the 2000 Regulations by virtue of regulation 6(3)(b) of the Accession Regulations;
(e) a decision not to issue or renew or to revoke an EEA family permit, a registration certificate or a residence card under these Regulations corresponds to a decision not to issue or renew or to revoke an EEA family permit, a residence permit or a residence document under the 2000 Regulations, respectively.”
15. We need only add that the previous statutory regime, contained in the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326 as amended) is for present purposes entirely revoked with no savings or transitional provisions.
16. The first thing that is apparent is that the new Regulations came into force immediately on 30 April 2006, and that the previous law is no longer in effect. The effect on existing decisions and appeals is quite remarkable: they are to be treated as decisions and appeals under the new Regulations. The consequence may be that a decision lawful when it was made, and a determination by the Tribunal containing no error of law when it was made, may now disclose an error of law because of the retrospective change of the decision and its authority.
17. Those considerations apply directly in relation to decisions under the previous Regulations and appeals against EEA decisions under those Regulations.
18. The precise interaction between the provisions of the Immigration Acts and the EEA Regulations is somewhat obscure. Fortunately, we do not need to treat it in detail for the purposes of these appeals. There are provisions providing rights of appeal against decisions made under the Regulations: those rights are not exactly the same as the rights of appeal against immigration decisions, provided by the 2002 Act, but are given with reference to provisions of that Act. As we understand the position, however, where the Immigration Acts empower the Secretary of State to make a decision against a person who is not a national of the United Kingdom, such decisions can (unless the contrary appears) be made against a person who is an EEA national or who is or would be a qualified person under the EEA Regulations. In those circumstances, the decision will, generally speaking, not be a decision under the EEA Regulations: it will be a decision under the relevant Act.
19. The EEA Regulations are not solely concerned with appeals: the Directive which they implement attributes substantive rights to those governed by them. So a person who appeals under the 2002 Act against an immigration decision may invoke the Directive as implemented by the Regulations indirectly under s84(1)(d), which permits him to appeal on the ground “that the appellant is an EEA national or a member of a family of an EEA national and the decision breaches the appellant’s rights under the community treaties in respect of entry to or residence in the United Kingdom”.
20. In those circumstances, as we have indicated, the applicable law will be that of the new Regulations, because the old Regulations have been revoked. The effect is, as it ought to be, that all appeals raising issues under Directive 2004/38/EC and decided after 30 April 2006 are to be decided under the provisions of that Directive as implemented by the Regulations.
21. The notices of decision in the present appeals are both in similar form. Each recites the appellant’s conviction of an offence and indicates that the Secretary of State is satisfied that the appellant “would pose a threat to the requirements of public policy if allowed to remain in the United Kingdom “and that in view of this conviction the Secretary of State deems it to be conducive to the public good to make a deportation order against you”. The decision to make such an order by virtue of section 3(5)(a) of the 1971 Act and the proposal to give directions for the appellant’s removal to his country of nationality follow.
22. Each of the appellants has appealed on the grounds specified in section 84 (1)(d).
23. Give that the decisions are avowedly made under the 1971 Act rather that the Regulations, the question may be asked whether these decisions are in truth “EEA decisions”, defined in Regulation 2 as “a decision under these Regulations.” We are confident that these are EEA decisions. The reasoning is as follows.
24. First, the Directive, and the Regulations implementing it, give substantive rights to EEA nationals. One of those rights is the right of a person otherwise entitled to reside in the UK not to be removed save in circumstances permitted by the Directive and regulation 19(3). Secondly, Regulation 24 applies to all decisions to remove that are made “in accordance with regulation 19(3)”. Thirdly, any decision to remove an EEA national with a right of residence that was not in accordance with regulation 19(3) would be unlawful, so regulation 24 applies to all decisions to remove an EEA national with a right of residence. Fourthly, given that regulation 24 applies, the decision is a decision under (not merely in accordance with) the regulations even if (by virtue of Regulation 24(3)) it is worded as if the 1971 Act , with no intrusion of EU law, were the empowering provision.
25. (If it were to be said (which in these cases it has not been) that decisions phrased in this way are not “EEA decisions”, there would be no difference in substance, because in that case the Directive would have direct effect on these cases and the terms of Articles 27 and 28, which are for all practical purposes the same as those of regulations 19 and 21 would apply and achieve the same result as if the decisions were “EEA decisions” governed by the Regulations. We should add that the reasoning in the previous paragraph is not affected by the consideration that the present decisions were made before the new Regulations came into force because the 2000 Regulations had, in regulations 2, 21(3) and 26, provisions identical to those in regulations 2, 19(3) and 24 to which we refer there.)
26. These appeals are undoubtedly to be considered within the calculus of removals for which provision is made in the new Regulations. We remind ourselves that under those Regulations an EEA national who has a permanent right of residence in the United Kingdom can be removed only on “serious grounds of public policy or public security”; if the EEA national is under the age of eighteen or has resided in the United Kingdom for more than ten years he can be removed only on ”imperative grounds of public security”. The meaning of the last phrase is not absolutely clear. What is clear is that the ground for removing any EEA national with a right of residence is more strongly expressed than it was under the previous regulations, by the insertion of the word “serious” before “grounds”. Further, in the case of a minor or a long-term resident even serious grounds are not enough and no grounds merely of public policy are enough. The word of intensification is “imperative” and the grounds must be grounds of “public security”. At he hearing, Mr Montilla indicated that his instructions were that the phrase “imperative grounds of public security” was a reference to the commission or suspicion of commission of terrorist offences. It may well be that that is what is intended by that phrase in the English version of the Directive and in the Regulations, bearing in mind the similar specialised meaning that ”security” has in the 1971 (and subsequent) Acts. Whether or not that is so, we do not think that it is a phrase which is appropriate to cover the ordinary risk to society arising from the commission of further offences by a convicted criminal. That is the risk which has in the past been met by removal decisions based on grounds of “public policy”.
27. Where regulation 21(3) applies to an individual (because he is an EEA national with a right of residence, but not a minor or a long term resident) he may be removed as previously on the grounds that there is a risk of his committing further offences, with the proviso that the risk of harm must now constitute serious grounds of public policy for his removal. Where regulation 21(4) applies, (that is where the individual is a minor or a long-term resident) the ground must now evidently be both qualitatively and quantitatively more serious. We therefore doubt whether the words in question are intended to apply in any general sense to even a serious risk of the commission of even quite serious criminal offences.
28. The first appellant was convicted of robbery at Warwick Crown Court on 23 January 2001. The Immigration Judge records in his determination as follows:
“15. In carrying out he balancing exercise which applies I have looked first at the circumstances of the offence for which the Appellant was imprisoned. In his sentencing remarks Mr. Justice Goldring said
‘as you now appreciate, you became involved in a serious robbery. In the middle of the afternoon you went into a shop: you were armed with a steak knife; you threatened the shopkeeper with it; you took money. I accept that you were drunk. The effect on the shopkeeper has been considerable. She says in her statement “I feel this incident has changed my life and that I now lack confidence”.’
16. The pre-sentence report made reference to the Appellant’s military service career including two tours of duty in Lebanon with the UN Peacekeeping Force, but reference was also made to the Appellant’s problems relating to alcohol abuse which had contributed to the breakdown of his marriage and difficulties in other personal relationships. The probation officer who prepared the report assessed he risk of re- offending as low. However, the pattern of offending, starting late but progressing swiftly to the current serious offence was a cause for concern. The probation concluded that if the Appellant was indeed to benefit from the inevitable prison term he would need to serve a fairly substantial term., enabling him to get access to sustained help. It was against that background that the Appellant was sentenced to 4 ½ years.
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18. I note that the Appellant has been granted early release on licence on two occasions but on each occasion he broke the terms of his licence and was returned to prison.
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21. It appears that the Appellant has behaved well while in prison.
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He has a good attendance record and has developed very good relationships with PE staff and other gym users.
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The Appellant is described as punctual, polite and courteous and is enthusiastic and well motivated. He acts on his own initiative ensuring that facility areas and equipment is working effectively.
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23. I formed the view that the Appellant has a clear insight into his drink related problems which he was perfectly willing to acknowledge. During cross-examination the Appellant acknowledged that all his problems were due to excessive drinking. He said that drinking would conflict with his fitness training and that he was determined to take advantage of whatever help was available to ensure that there was no repetition. The Appellant said that he had receive considerable assistance from a counsellor while in prison. He said upon his release he would go to Alcoholics Anonymous for help if that were necessary and that he was determined not to return to his former ways.
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26. I am satisfied from all the evidence which I heard and read that the Appellant is motivated to lead an industrious and crime free life on his return from prison. A great deal will undoubtedly depend on his ability to refrain from alcohol abuse but I am satisfied that there are good reasons to suppose that the Appellant has both the motivation and the ability to obtain and professional help in order to obviate any risk that might exist.
29. The Immigration Judge thus allowed the appeal under the 2000 Regulations. In our view he was entirely right to do so. Removal of an EEA national is not to be based on past conduct but on future risk, and, given his findings as to the risk of re-offending and the intention to keep away from alcohol any decision to the contrary would probably have been perverse.
30. In this reconsideration we apply the 2006 Regulations, under which the Immigration Judge’s decision is, if anything, even less subject to challenge. Applying the principles set out in regulation 21(5) it would be impossible to say that the appellant’s deportation is justified on “serious grounds of public policy or public security”.
31. The second appellant came to the United Kingdom to live with her mother in 1993, when she was nine years old. She has been resident here ever since. In April 2002 she was convicted an offence of importation of class A drugs and was sentenced to eight and a half years imprisonment. The Secretary of State’s letter dated 23 November 2005 challenges the appellant’s account of her residence in the United Kingdom, but it is no longer suggested on the respondent’s behalf that she has not been resident here since 1993 or 1994. The letter goes on to say:
“Although there is no clear evidence that you will re-offend, the offence for which you have been convicted is considered to constitute a threat to the requirements of public policy on the basis of conduct alone.”
32. The Immigration Judge indicated, in a short determination, that she was satisfied that the appellant would not commit any further offences and allowed the appeal because she considered that:
“there is no likelihood she will commit further offences or in some other way infringe public security or policy”.
33. The Secretary of State’s grounds for reconsideration cite Bouchereau and Marchon and assert that the severity of the offence was sufficient to warrant a deportation order, particularly because it was an offence related to drugs. We have to say that we should have had some concerns about the Immigration Judge’s decision if it had not been for the coming into force of the new Regulations.
34. Under those Regulations, however, an EEA national who has been resident in the United Kingdom for ten years or is a minor can be removed only on “imperative grounds of public security”. The appellant is no longer a minor (although she was when she committed the offence for which she was convicted). Her residence in the United Kingdom has partly been in prison, but there is no doubt that that constitutes “residence” for the purposes of the Regulations. The test of “imperative grounds of public security” is at the very highest level of the calculus introduced by the 2006 Regulations and Directive 2004/38/EC. There are no such grounds justifying the removal of this appellant. Any error made by the Immigration Judge was accordingly not material.
35. For the forgoing reasons we affirm the Immigration Judge’s decision in each case.
C M G OCKELTON
DEPUTY PRESIDENT
Date: