Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/04590/2020

THE IMMIGRATION ACTS

Heard at Cardiff Civil Justice Centre
Decision & Reasons Promulgated
On 9 June 2022
On the 14 July 2022

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

henry chigozie okafor
Respondent

Representation:

For the Appellant: Ms S Rushforth, Senior Home Office Presenting Officer
For the Respondent: Ms S Akinbolu instructed by Kalsi Solicitors

DECISION AND REASONS
1. Although this is an appeal by the Secretary of State for convenience I will refer to the parties as they appeared before the First-tier Tribunal: Henry Chigozie Okafor (appellant) and the Secretary of State for the Home Department (respondent).
Introduction
2. This is the judgment of the Upper Tribunal re-making the decision of the First-tier Tribunal which, on appeal by the Secretary of State, was set aside by the Upper Tribunal (UTJ Grubb) in a decision dated 28 February 2022 (sent on 1 March 2022).

Background
3. The appellant is a citizen of Nigeria who was born on 1 June 1965. He is married to a Swedish (and therefore EEA) national whom he married in Nigeria on 15 October 2019.
4. The appellant’s spouse, Olayinka Ekaete Agbelusi was granted indefinite leave to remain on 11 March 2019.
5. On 30 July 2020, the appellant was granted entry clearance under the EU Settlement Scheme.
6. On 17 September 2020, the appellant arrived at Heathrow Airport with an EUSS family permit. However, he was refused admission on the grounds of public policy and his family permit was revoked under regs 23 and 24 of the Immigration (EEA) Regulations 2016 (SI 1052/2016 as amended) (“the EEA Regulations”). In addition, his leave to enter was cancelled on the same basis under para 321B of the Immigration Rules (HC 395 as amended). Although the decisions were initially taken and served on 17 September 2020, the cancellation of leave, which it was acknowledged had been served on an incorrect form, was reissued on 22 September 2020.
7. The basis of the public policy decision under the EEA Regulations was that in 1994 the appellant had been convicted in the USA of the offence of conspiracy to possess with intent to distribute heroin and had been sentenced to 350 months’ imprisonment. He had been imprisoned since his arrest on 12 December 1992 in relation to that offence. He served almost 26 years of the sentence before he was released from prison on 23 January 2019 to the custody of the US Immigration Services. On 5 May 2019, he was removed to Nigeria.
8. The appellant did not disclose his conviction or deportation in his EUSS family permit application made on 15 February 2020, nor in two earlier visit visa applications made on 31 October 2019 and 24 December 2019. Indeed, in all three applications in answer to questions whether he had been convicted of a criminal offence in the United Kingdom or in any other country, the appellant had replied that he had not.
9. The appellant appealed to the First-tier Tribunal. In a decision sent on 27 May 2020, Judge Mailer allowed the appellant’s appeal. Judge Mailer was not satisfied that the respondent had established on a balance of probabilities that the appellant’s conduct represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. His exclusion from the UK could not, therefore, be justified under EU law.
The Appeal to the Upper Tribunal
10. The Secretary of State appealed to the Upper Tribunal with permission.
11. In a decision dated 28 February 2022, I set aside Judge Mailer’s decision on the basis that he had erred in law in allowing the appeal under the EEA Regulations. The reasons are set out in full in my decision. In essence, I concluded that the judge had failed to consider the so-called “Bouchereau exception” in concluding that the appellant did not represent a “genuine, present and sufficiently serious threat” to a fundamental interest in society based upon his conduct.
12. The appeal was adjourned for a resumed hearing in order for the Upper Tribunal to re-make the decision on that issue.
13. At the hearing, the appellant was represented by Ms Akinbolu and the respondent by Ms Rushforth. I heard oral submissions from both representatives and also Ms Akinbolu relied upon a skeleton argument.
14. The scope of the appeal was limited to the issue of whether the appellant’s conduct, arising both from his criminal conviction in the USA and his conduct subsequently in failing to disclose his convictions in his UK immigration applications, justified his exclusion on the basis that it represented a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” applying the “Bouchereau exception”.
The “Bouchereau exception”
15. The appellant’s exclusion must be justified on grounds of public policy because he is a family member of an EEA national (see regs 23(1) and 24(1) of the EEA Regulations).
16. The burden of establishing the public policy ground lies on the Secretary of State to the civil standard of a balance of probabilities (see Arranz (EEA Regulations – deportation - test) [2017] UKUT 00294 (IAC)).
17. In reg 27 of the EEA Regulations, the basis of a decision taken on grounds of “public policy” is set out as follows:
“27.—(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) …..
(4) …..
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also 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 must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(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;
(f) the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) 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 P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin.
(7) ….
(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.).” (emphasis added)
18. Regulation 27(8) states that, in reaching a decision, account has to be taken of the considerations set out in Schedule 1 to the EEA Regulations. Paragraphs 2 to 6 of Schedule 1 set out a number of matters relevant to the assessment of the “public policy” ground in reg 27. So far as relevant to this appeal, paras 3 and 5 provide as follows:
“3. Where an EEA national or the family member of an EEA national has received a custodial sentence, or is a persistent offender, the longer the sentence, or the more numerous the convictions, the greater the likelihood that the individual’s continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat affecting the fundamental interests of society.
....
5. The removal from the United Kingdom of an EEA national or the family member of an EEA national, who is able to provide substantive evidence of not demonstrating a threat (for example, through demonstrating that the EEA national or the family member of an EEA national has successfully reformed or rehabilitated) is less likely to be proportionate”.
19. Paragraph 7 of Schedule 1 goes on to set out a number of “fundamental interests of society” which are included within the ambit of reg 27. For the purposes of this appeal, the relevant ones appear in para 7(a), (c), (e) and (f) as follows:
“7. For the purposes of these Regulations, the fundamental interests of society in the United Kingdom include –
(a) preventing unlawful immigration and abuse of immigration laws, and maintaining the integrity and effectiveness of the immigration control system (including under these Regulations) and the Common Travel Area;
...
(c) preventing social harm;
...
(e) protecting public services;
(f) excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action;
....”
20. In applying the EEA Regulations, a Tribunal must, in essence, determine four stages (see BF(Portugal) v SSHD [2009] EWCA Civ 923 at [3] per Sullivan LJ):
1) what was the relevant personal conduct of the individual?; and
2) whether that conduct represents a genuine, present and sufficiently serious threat; and if so,
3) whether that threat affects one of the fundamental interests of society; and if so,
4) whether the removal or exclusion of the individual would be disproportionate in all the circumstances.
21. The central issue in this appeal is whether the appellant’s conduct falls within reg 27(5)(c). It is not suggested, not sensibly could it be, that his drugs offending does not fall within the rubric of a “fundamental interest of society” (see e.g., Schedule 1, para 7(g) of the EEA Regulations). The same is equally true of his deceptive conduct in the immigration context (see, e.g. Schedule 1, para 7(a) of the EEA Regulations). The issue is whether the appellant’s conduct represents a “genuine, present and sufficiently serious threat” to one or more of those fundamental interests.
22. In determining whether the individual’s conduct (once established) falls within stage (2) above as a “genuine, present and sufficiently serious threat” the usual case requires the respondent to establish that the individual has a “propensity” to re-offend or, to put it another way, there is a risk of re-offending.
23. However, as I identified in paras 41–44 of my decision dated 28 February 2022, the jurisprudence of the CJEU, as approved by the Court of Appeal in SSHD v Robinson [2018] EWCA Civ 85 (“Robinson”), has accepted that, even in the absence of a propensity to commit further offences, where the individual’s conduct can be said to produce a “deep public revulsion” then the requirement of EU law that the individual should represent a “genuine, present and sufficiently serious threat” to a fundamental interest of society may still be met. That, as will be clear, unusual case is the so-called “Bouchereau exception”.
24. In relation to the “Bouchereau exception”, it is helpful to set out what I said at paras 41–44 of my earlier decision (with minor typographical corrections):
“41. In relation to whether the threat is “genuine” and “present”, the usual case will require the decision maker to consider whether it has been established that the individual has a “propensity” to re-offend or that there is a risk of re-offending. However, the case law of the ECJ and CJEU recognises that in cases of particularly serious offending, the requirements of “public policy” may be satisfied, based upon the personal conduct of the individual, even if there is no propensity to commit further offences because of the “deep public revulsion” the offence or offences presents. This is, sometimes, referred to as the “Bouchereau exception”. In that regard, the decisions of the European Court do not, necessarily, represent a wholly consistent approach. However, a number of decisions of the Court of Appeal have accepted the “Bouchereau exception”. Most recently, it was accepted in SSHD v Robinson [2018] EWCA Civ 85. Although that case was subsequently appealed to the Supreme Court ([2020] UKSC 53), the Court of Appeal’s conclusions on this issue were not challenged.
42. In Robinson, Singh LJ (with whom Underhill and Lindblom LJJ agreed), at [68]–[71], set out the issue and the conclusions of the Advocate-General and ECJ in Bouchereau as follows:
“68. There was an interesting debate between the parties in this appeal about whether past conduct alone, and "public revulsion" in particular, may be sufficient to justify deportation of an offender in this sort of case. In that context there was debate about the extent to which the decision of the European Court of Justice ("ECJ") in R v Bouchereau remains good law. That case concerned Directive 64/221.
69. In that case Advocate-General Warner said at p.742:
"The United Kingdom Government … points out that cases do arise, exceptionally, where the personal conduct of an alien has been such that, whilst not necessarily evincing any clear propensity on his part, it has caused such deep public revulsion that public policy requires his departure. I agree. I think that in such a case a member state may exclude a national of another member state from its territory, just as a man may exclude from his house a guest, even a relative, who has behaved in an excessively offensive fashion. Although therefore, in the nature of things, the conduct of a person relevant for the purposes of Article 3 will generally be conduct that shows him to have a particular propensity, it cannot be said that that must necessarily be so."
70. At paras. 27-30 of its judgment the ECJ said:
"27. The terms of article 3(2) of the Directive, which states that 'previous criminal convictions shall not in themselves constitute grounds for the taking of such measures,' must be understood as requiring the national authorities to carry out a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy, which does not necessarily coincide with the appraisals which formed the basis of the criminal conviction.
28. The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.
29. 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.
30. It is for the authorities and, where appropriate, for the national courts, to consider that question in each individual case in the light of the particular legal position subject to Community law and of the fundamental nature of the principle of the free movement of persons."
71. It is important to recognise that what the ECJ was there talking about was not a threat to "the public" but a threat to "the requirements of public policy". The latter is a broader concept. At para. 28 the ECJ said that past conduct can only be taken into account in so far as it provides evidence of personal conduct constituting a "present threat to the requirements of public policy." As the ECJ said at para. 29, "in general" that will imply that the person concerned has a "propensity to act in the same way in the future" but that need not be so in every case. It is possible that the past conduct "alone" may constitute a threat to the requirements of public policy. In order to understand in what circumstances that might be so, I consider that it is helpful and appropriate to have regard to the opinion of the Advocate-General in Bouchereau, when he referred to "deep public revulsion". That is the kind of extreme case in which past conduct alone may suffice as constituting a present threat to the requirements of public policy.”
43. Singh LJ set out a number of decisions of the Court of Appeal at [72]–[79] and then stated at [80]:
“Accordingly, I am of the view that the decision in Bouchereau continues to bind the courts of this country”.
44. At [81]–[83], Singh LJ disagreed with the contrary view expressed by the Upper Tribunal in CS (on reference to the CJEU, [2017] QB 558) [which] was wrongly decided (see [84]). At [84]–[86], Singh LJ expressed, albeit tentatively, the scope of the Bouchereau exception:
“84. .... as I have said in my earlier analysis of Bouchereau, that case itself recognised that what one is looking for is a present threat to the requirements of public policy; but it also recognised that, in an extreme case, that threat might be evidenced by past conduct which has caused deep public revulsion”.
85. However, with all of that said, I am also of the view that the sort of case that the ECJ had in mind in Bouchereau, when it referred to past conduct alone as potentially being sufficient, was not the present sort of case but one whose facts are very extreme. It is neither necessary nor helpful to attempt an exhaustive definition but the sort of case that the court was thinking of was where, for example, a person has committed grave offences of sexual abuse or violence against young children.
86. I would not wish to belittle the seriousness of the offence in the present case but it is not the sort of offence in which public revulsion at a past offence alone will be sufficient. I note that, in Straszewski, Moore-Bick LJ referred to "the most heinous of crimes" at para. 17. That gives an indication of the sort of offence the ECJ had in mind when it said that a past offence alone might suffice. I also note that, in ex p. Marchon, the defendant was convicted of an offence of conspiracy to import 4½ kg of a Class A drug (heroin); he was a doctor; and he was sentenced to 11 years' imprisonment. As Moore-Bick LJ observed in commenting on that case in Straszewski, at para. 18, the offence had been described by this Court in ex p. Marchon as being "especially horrifying" and "repugnant to the public" because it had been committed by a doctor. In contrast, as the UT noted at para. 28 of its judgment in the present case, the sentence of 30 months' imprisonment that was imposed on this Respondent was at the lower end of the scale for offences of supplying Class A drugs.“
25. The “Bouchereau exception” was re-affirmed by the Grand Chamber of the CJEU in K v Staatssecretaris van Veiligheid en Justitie; HF v Belgische Staat (Cases C-331/16 and C-366/16) [2019] 1 WLR 1877 (“K and HF”)at [56}:
“Moreover, while, in general, the finding of a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, within the meaning of the second subparagraph of Article 27(2) of Directive 2004/38, implies the existence in the individual concerned of a propensity to repeat the conduct constituting such a threat in the future, it is also possible that past conduct alone may constitute such a threat to the requirements of public policy (judgment of 27 October 1977, Bouchereau, 30/77, EU:C:1977:172, paragraph 29).”
26. It is important to identify the scope of the “Bouchereau exception”.
27. First, it is clear from Bouchereau itself, and the Court of Appeal’s approach subsequently, that a propensity to re-offend or a risk of re-offending is usually a sine qua non to establishing that there is a “genuine, present and sufficiently serious threat” to a fundamental interest of society.
28. Second, the “Bouchereau exception” will arise only “exceptionally” (see the Advocate-General’s opinion at [69] of Robinson above).
29. Third, the “Bouchereau exception” arises when the individual’s conduct can be said to engender “deep public revulsion”. The courts have indicated that conduct which give rises to “deep public revulsion” is likely to be in cases which are “extreme” (see [71] of Robinson) and which involve the “most heinous crimes” and which are “especially horrifying” and “repugnant to the public” (see [86] of Robinson). In Robinson, Singh LJ referred to examples where “a person has committed grave offences of sexual abuse or violence against young children”.
30. Fourth, without offending the EU law prohibition on applying the public policy exception based upon “previous criminal convictions” alone (see reg 27(5)(e)), the exceptional or unusual case must be based “exclusively on the personal conduct of the person concerned” (see reg 27(5)(b)), i.e. an assessment of the seriousness and nature offence and the circumstances of the offending (and the offender) as a whole. In K and HF, in the context of an individual whose previous offending had excluded him from the Refugee Convention, the CJEU emphasised the need for an overall assessment of the individual’s past offending, its circumstances and his subsequent conduct (at [66]):
“66. The finding that there is such a threat must be based on an assessment, by the competent authorities of the host Member State, of the personal conduct of the individual concerned, taking into consideration the findings of fact in the decision to exclude that individual from refugee status and the factors on which that decision is based, particularly the nature and gravity of the crimes or acts that he is alleged to have committed, the degree of his individual involvement in them, whether there are any grounds for excluding criminal liability, and whether or not he has been convicted. That overall assessment must also take account of the time that has elapsed since the date when the crimes or acts were allegedly committed and the subsequent conduct of that individual, particularly in relation to whether that conduct reveals the persistence in him of a disposition hostile to the fundamental values enshrined in Articles 2 and 3 TEU, capable of disturbing the peace of mind and physical security of the population. The mere fact that the past conduct of that individual took place in a specific historical and social context in his country of origin, which is not liable to recur in the host Member State, does not preclude such a finding.”
Applying the “Bouchereau Exception”
1. The Arguments
31. At para 137 of his decision, Judge Mailer’s made a finding that the appellant did not have a propensity to commit, nor was there a future risk of him re-offending by committing, any drug related offences of the type that he was convicted of in the USA, or indeed of any type. The judge said this:
“Having regard to the evidence as a whole, I find it is not likely that the appellant will re-offend in the future. The appellant has not been shown to have any intention or desire to re-engage in criminal conduct”.
32. Hence, the respondent (as she did before the judge) relies upon the “Bouchereau exception” on the basis that the appellant’s US conviction in 1994 for conspiracy to possess with intent to distribute heroin (which in the UK would be class A drugs) with a sentence of 350 months’ imprisonment gave rise to “deep public revulsion” and satisfied the requirement that the appellant conduct represented a “genuine, present and sufficiently serious threat” affecting one of the fundamental interests of society. Ms Rushforth, in her submissions, continued to rely upon that argument before me.
33. In addition, Ms Rushforth placed some reliance upon the appellant’s immigration history involving deceptive directed against the UK immigration authorities. Judge Mailer accepted, at paras 126–127, that the appellant had on three occasions on 31 October 2019, 24 December 2019 and 15 February 2020 (see paras 120–123) failed to disclose his criminal conviction in the USA despite the clearly worded question in each application form whether he had been convicted of any offence “in the United Kingdom or, in any other country”. Judge Mailer accepted that the appellant had failed to do so deliberately in order to effect entry to the UK to be with his wife. Ms Rushforth relied upon this conduct as falling within a “fundamental interest of society” as set out in Schedule 1 to the EEA Regulations, in particular para 7(a) and (f).
34. There was some discussion before me as to whether or not Judge Mailer had made a finding that the appellant was at risk of re-offending in this way in the future. In my view, it is clear from para 137 of his decision that Judge Mailer made a finding that the appellant was not at risk of re-offending in this way in the future. Having set out his finding that the appellant was unlikely to re-offend by committing criminal conduct (i.e. drugs offences), he added:
“Nor is there any evidence that he would be likely to lapse so as to breach the United Kingdom laws if he considered it expedient to do so”.
35. That, in my view, can only be a reference to the additional “fundamental interests of society” relied upon before Judge Mailer, namely that related to immigration fraud or deception. If there was no evidence that he was likely to breach UK laws in that respect, then that is a clear finding that the Secretary of State has failed to establish, on a balance of probabilities, that the appellant is at risk of re-offending or engaging in deceptive conduct of that nature in the future.
36. Neither of those factual findings can now be challenged and they, therefore, remain the basis upon which I must re-make the decision in this appeal.
37. Consequently, and Ms Rushforth maintained her argument on both bases, the respondent relies on the “Bouchereau exception” both in relation to the appellant’s criminal conviction in the USA and also his deceptive conduct in relation to the UK immigration authorities on three occasions in 2019 and 2020.
38. Ms Akinbolu submitted that the respondent has failed to discharge the burden of proof on a balance of probabilities. She submitted that, apart from the offence for which the appellant was convicted, and that he had been sentenced to 350 months’ imprisonment (of which he served almost 26 years before being sent to Nigeria), the respondent has provided no details of the appellant’s offending. Rather, Ms Akinbolu submitted, it is the appellant who has produced evidence concerning his offence and his subsequent conduct.
39. Ms Akinbolu relied upon a letter from the appellant’s US attorney dated 6 January 2021 (at page 195 of the appellant’s updated first bundle, “AB1”). That letter refers to communication made to the appellant’s lawyer by a US law enforcement officer (whom I will refer to as “GT”) concerning the appellant’s offending (which is set out at page 198–199 of AB1). The appellant’s lawyer “JC” says this:
“It needs to be said that I became his lawyer (pro bono) when Agent [GT] reached out to me. He explained Mr Okafor’s story and Agent [GT] thought he was given a raw deal. Mr Okafor was punished much worse than most other people that were involved in the scheme. Agent [GT) is a lifelong law enforcement officer and takes crimes committed in the US very seriously and the fact that he reached out to me to represent Mr Okafor was significant. Agent [GT] does not help criminals but he did not see Mr Okafor that way, even with his criminal history”.
40. Agent GT’s letter sets out that he was actively engaged in investigations involving West African criminal organisations and that he was approached in 2005 by the appellant whilst serving his prison sentence in a federal facility in Texas. Agent GT says this:
“OKAFOR explained that he was imprisoned for conspiracy to import heroin, but that his role in the conspiracy was limited to recruiting and referring a willing drug courier, also known as a mule, to a Nigerian drug smuggler with whom he had no other criminal relationship. His finder’s fee for this referral was approximately $1,500. I was highly sceptical when I was told this because in my experience such severe sentences were reserved for upper level manager/organizer roles in drug smuggling organizations. However, I subsequently verified this information by researching the case through a telephone conversation with FBI Special Agent (SA) [MM]”.
41. The letter then goes on to describe contact between Special Agent MM and Agent GT and that the former had recruited the appellant to provide information prior to the appellant’s arrest. Special Agent MM confirmed the appellant’s role in the drugs conspiracy for which he was subsequently arrested and convicted. Agent GT continues:
“It appears that because OKAFOR had a peripheral role in the conspiracy and had no other history or activity involving drug smuggling or organizations, he was unable to provide any useful information to the government that might mitigate his case or gain a sentence reduction”.
42. The letter then goes on to state that over a course of approximately eight years, the appellant recruited numerous inmates of Nigerian origin to provide information on criminal activities in the areas of drug smuggling, money laundering, and healthcare fraud.
43. That, in effect, is the sum total of information before the Upper Tribunal in respect of the appellant’s offence for which he was convicted in the USA in 1994.
44. Ms Akinbolu also relied upon material submitted, and admitted under rule 15(2A) without objection from Ms Rushforth, that US federal sentencing, particularly in drugs offences, had a disproportionate effect on African Americans (“Disproportionate Incarceration of African Americans for Drug Offenses in the US” (January 2004), pp2-3. appellant’s bundle 4, “AB4”). Also, she referred me to material concerning sentencing and the Fair Sentencing Act of 2010, prior to which sentencing for drugs offences was disproportionately high in the US federal jurisdiction (see, “Sensible Sentencing Reforms: The Fair Sentencing Act of 2010”, pp5-6 of AB4). Prior to the Act, average sentence lengths were 106 months but subsequently fell to 71 months (see also “Thousands of Prisoners Now Eligible to Receive Fairer Sentences” (July 2011) p7 of AB4; and “US Sentencing Commission Reports on Impact of Fair Sentencing Act of 2010” (August 2015), pp8-9 of AB4).
45. Ms Akinbolu submitted that, on the basis of the limited facts known about the appellant’s offending, the “Bouchereau exception” was not established.
46. Ms Akinbolu further submitted that the appellant’s past deceptive conduct in relation to the immigration offences certainly did not reach the level of “deep public revulsion” to engage the “Bouchereau exception”.
47. On behalf of the respondent, Ms Rushforth submitted that there were difficulties for the respondent in obtaining information about the appellant’s offending in the USA. Nevertheless, his offence of conspiracy to possess with intent to distribute heroin and the sentence of 350 months fell within the “Bouchereau exception”. She relied upon the Court of Appeal’s decision in R v SSHD, ex p Marchon [1993] Imm AR 384 where the offence of conspiracy to import 4½ kg of class A drugs (heroin) by a doctor who was sentenced to 11 years’ imprisonment fell within the “Bouchereau exception”, being described by the court as “especially horrifying” and “repugnant to the public”. Ms Rushford submitted that, although she accepted that sentencing in the USA for drugs offences could not be equated with sentencing in England and Wales, the document relied upon by the appellant showed that the average sentence, after the Fair Sentencing Act, fell from 106 months to 71 months but the appellant’s sentence was considerably in excess of that.
48. In addition, Ms Rushforth relied upon the appellant’s deceptive conduct with the UK immigration authorities and the case of Arranz which recognised that the use of false documents could engage the public policy ground.
2. Discussion
49. There is, in this appeal, a paucity of detailed information concerning the appellant’s offence. It is known that he was convicted of conspiracy to possess with intent to distribute heroin (which in the UK is a Class A drug). It is also known that he was sentenced to 350 months’ imprisonment and, indeed, served almost 26 years of that sentence. The circumstances of the appellant’s offending has not been put into evidence by the respondent. The only evidence is that derived from the appellant and his attorney in the US and what is said by the law enforcement officer, Agent GT. I have set that out above and given that it emanates from one US law enforcement officer, having consulted an FBI agent who was directly involved with the appellant, I conclude that that evidence is reliable insofar as it provides background to the circumstances of the appellant’s offending. His sentence was initially thought to be not consistent with his evidence that he had been involved in recruiting a courier for a fee and not to be engaged in a wider criminal conspiracy for which an individual higher up in the organisational chain only received 22 years’ imprisonment. Yet, the appellant’s claimed involvement was confirmed by the FBI agent. I proceed, therefore, on the basis that that was the context of the appellant’s offence for which he was convicted and received a sentence of 350 months.
50. There is no evidence before me as to where, within a range of sentencing for drugs related offences in the USA, the appellant’s sentence fell. Had his conviction been in England and Wales, there would be sentencing remarks made by the judge in reaching the sentence imposed and, since their inception, guidelines from the Sentencing Council relevant to the sentencing process. The absence of that material presents a significant obstacle to reach any informed assessment of the seriousness of the appellant’s offending on a scale or range of drugs related offences. On the face of it, a sentence of 350 months seems, seen through the eyes of the criminal justice system in England and Wales, to be only consistent with the most serious offending. The range, for example, in the present Sentencing Council guidelines for such an offence would be 12–16 years with a starting point of 14 years where the individual plays a “leading role” in respect of importation or supply and the “harm” (by quantity) falls into “Category 1” (see Sentencing Council, “Drugs Offences”) . Sentences of 20 years and above may be imposed, in the most serious cases, depending upon the commercial scale of the conspiracy and involving significantly high quantities of drugs. But, that perspective cannot be transposed to assess a sentence of 350 months imposed by a federal court in the USA in 1994.
51. In Gosturani v SSHD [2022] EWCA Civ 779, the Court of Appeal recognised the difficulties of assessing the seriousness of an offence based upon a conviction outside the UK. Lewis LJ (with whom Elisabeth Laing and Baker LJJ agreed) said this at [36]:
“36. Furthermore, other statements of policy indicate that the fact that a person has been convicted of an offence in another country is relevant to whether that person ought to be permitted to enter the United Kingdom. ….. There is a need to bear in mind that, where the conviction occurred abroad, the seriousness of an offence cannot necessarily be measured by the sentence imposed by the foreign courts. There may be instances where a foreign conviction is not based on conduct which would be criminal in the United Kingdom (such as offences involving homosexuality or proselytising) or where a severe sentence is imposed which would not be imposed here (such as a sentence imposed for a minor public order offence in a country with an authoritarian regime): see MW (United States of America) and others v Entry Clearance Officer [2016] EWCA Civ 1273, [2017] 1 WLR 1556 at paragraphs 39 to 41. Subject to that caveat, the fact that a person has been convicted of a serious offence abroad is seen by the executive as relevant to whether a person should be allowed to enter the United Kingdom. By analogy, it is legitimate to have regard to the fact that a person has been convicted of a serious criminal offence abroad when deciding whether it is in the public interest to deport that individual.”
52. Although, the Court of Appeal was concerned with the deportation of a “foreign criminal” rather than an individual under EU law, what is said there is, in my judgment, equally apposite in the context of EU law. In particular, under EU law it is essential to assess not only the seriousness of the offending based upon sentence but to look, in addition, to the circumstances of the offending. As reg 27(5)(b) points out, reflecting the ECJ/CJEU’s jurisprudence:
“The decision must be based exclusively on the personal conduct of the person concerned”. (emphasis added)
53. In relation to assessing the appellant’s conduct, I have not found particularly helpful the background material relied upon by Ms Akinbolu concerning the disproportionate impact upon African Americans in the criminal justice system in the USA in the context of drug offences. I have no way of knowing how that has impacted upon this appellant in particular. I prefer, instead, to determine whether the “Bouchereau exception” applies by looking at the appellant’s role, his sentence - bearing in mind the limited information I have about where such a sentence falls upon a spectrum of sentencing for drug related offences - and his subsequent conduct.
54. Here, the appellant was involved in a very serious offence - conspiracy to possess with intent to distribute heroin. His role specific role must, however, be taken into account. His involvement was to recruit a courier. For that, he was paid a fee. That role was described by Agent GT, based upon information he received from the FBI agent, to appear to be a “peripheral role in the conspiracy”. Although it is not entirely clear, it appears that the appellant’s role involved recruiting a single courier.
55. In assessing the “public revulsion”, consideration must be taken also of the appellant’s co-operation, identified by the federal law enforcement officers in the evidence, in assisting them in obtaining information from inmates during the course of the appellant’s imprisonment to assist in pursuing law enforcement against other offenders. I also take into account Judge Mailer’s findings at paras 131-135 concerning his positive conduct and behaviour in prison in the USA. The offence took place 30 years ago. The appellant has not been convicted of any offences since his release in 2019, although that is a relatively short time ago, Judge Mailer’s finding was that he was not at risk of re-offending. Judge Mailer plainly concluded that the appellant had been rehabilitated.
56. I recognise that in ex p Marchon, relied upon by Ms Rushforth, a person who had been convicted of a drugs related offence involving conspiracy to import 4½ kg of heroin and sentenced to 11 years’ imprisonment was said to fall within the “Bouchereau exception”. However, as Singh LJ pointed out at [86] in Robinson, that case involved an offence committed by a doctor which made it “especially horrifying” and “repugnant to the public”. It was, in my judgment, that latter feature which tipped that individual’s conduct over into the unusual case contemplated by the “Bouchereau exception”. It does not, in my judgment, lead me to a similar conclusion on the particular circumstances of this appellant’s offending.
57. It is for the respondent to establish the public policy ground, and, as I pointed out in my earlier decision, the Secretary of State has not produced any evidence concerning the circumstances of the appellant’s offending in the USA beyond the offence itself and the sentence imposed. The fact that, as Ms Rushforth submitted, the Secretary of State is in some difficulty in producing more detailed evidence does not alter the fact that under EU law the burden of proof lies upon the Secretary of State to justify on public policy grounds the appellant’s exclusion from the UK. The Tribunal can only reach a decision on whether the Secretary of State has discharged that burden of proof on the evidence before it.
58. In assessing whether the appellant’s “personal conduct” gives rise to “deep public revulsion” it is, in my judgment, important to take all the factors I have identified above into account. Here, the appellant’s offending though very serious, and his role - like the offence itself - should not be understated, it was not offending (based upon the limited circumstances known in this appeal about the offending) which falls within the exceptional or unusual category that invokes the “Bouchereau exception” where the appellant has been found not to have a propensity to offend and is not at risk of re-offending in the future.
59. For the above reasons, the Secretary of State has failed to establish on a balance of probabilities that the appellant’s conduct falls within the “Bouchereau exception” and therefore amounts to a “present, genuine and sufficiently serious threat” to a fundamental interest of society.
60. To the extent that Ms Rushforth relied upon the appellant’s deceptive conduct in relation to the UK immigration authorities, the UT’s decision in Arranz is no more than a recognition that immigration fraud or abuse can affect a “fundamental interest of society”. That was, of course, a case where the UT denied, wrongly now given Robinson, that the “Bouchereau exception” existed and so was only concerned with an individual who had a propensity to commit such offences or was at risk of re-offending. Given that the judge found that there was no risk of the appellant re-offending in the future, whilst his past conduct was such that it affects a “fundamental interest of society” under Schedule 1 to the EEA Regulations, that conduct comes nowhere near falling within the exceptional or unusual case contemplated by the “Bouchereau exception” where “deep public revulsion” is engendered by that conduct.
61. As it is not established that the appellant’s conduct represents a “genuine, present and sufficiently serious threat” affecting a fundamental interest of society, his exclusion cannot be justified on public policy grounds. The issue of proportionality does not strictly arise given that finding. For these reasons, therefore, the appellant succeeds in his appeal.
Decision
62. The decision of the First-tier Tribunal to allow the appellant’s appeal under the Immigration (EEA) Regulations 2016 was set aside by my decision dated 28 February 2022.
63. For the above reasons, I allow the appellant’s appeal under the Immigration (EEA) Regulations 2016.

Signed

Andrew Grubb

Judge of the Upper Tribunal
17 June 2022