COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE LANE
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice Buxton
Lady Justice Smith
| Hussein Bulale
|- and -
|The Secretary of State for the Home Department
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Miss Samantha Broadfoot (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Hearing dates : 14 May 2008
Crown Copyright ©
Lord Justice Buxton :
The history of this appeal
the 2006 Regulations have introduced a new hierarchy of levels of protection, based on criteria of increasing stringency:
A general criterion that removal may be justified "on the grounds of public policy, public security or public health";
A more specific criterion, applicable to those with permanent rights of residence, that they may not be removed "except on serious grounds of public policy or public security";
The most stringent criterion, applicable to a person "who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision", who may not be removed except on "imperative grounds of public security".
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;
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.
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.
Accordingly, and as happened in the present case, the person's criminal convictions form the context for an assessment of his present threat to what is described in regulation 21(5)(c) as one of the fundamental interests of society.
- December 2003 attempted robbery, 12 months detention
- June 2004 burglary, 100 hours community punishment and a 12 month community rehabilitation order
- July 2004 attempted theft, a further 100 hours community punishment
- January 2005 (thus, during the currency of his community rehabilitation order), robbery, for which he was sentenced in July 2005 to three years detention in a Young Offenders' Institution.
The Judge observed that the offence was a planned robbery carried out by a gang. The gang decided to attack a young woman who was on her own and was taking money from a bookmaker's shop. The object and part of the plan was to steal cash from that woman. There were three robbers involved in the offence, of which the appellant was one.
It was after that robbery that the Secretary of State decided in July 2006 to make the deportation order that is contested in this appeal.
Propensity to reoffend
It is my assessment that until Mr Bulale makes a conscious decision to take full responsibility for his actions he will continue to pose a high likelihood of committing further offences.
The requirements of the Regulations
Fundamental interests of society
Serious grounds of public policy; a sufficiently serious threat
Is this argument open to Mr Bulale?
The relevant jurisprudence
A conviction for murder, a terrorism offence, a drug trafficking offence, a serious immigration offence, or a serious sexual, violent or other offence carrying a maximum penalty of 10 years or more might constitute serious grounds of public policy or public security.
The type of offence committed by Mr Bulale accordingly fell within that rubric, the maximum sentence for robbery being life imprisonment. It may also be worth noting that the length of sentence passed on Mr Bulale, as a juvenile, and the Judge's sentencing remarks, indicate that the Judge regarded Mr Bulale's actual offence as falling into what would now be the second level of seriousness as recognised in the Sentencing Guidelines Council guideline of July 2006.
the appellant represents a genuine and sufficiently serious risk to the public. There are serious grounds of public policy for deporting the appellant.
It was entitled to take that view as a matter of EU law. The thrust of the thinking that led to the Directive seems fairly clearly to have been that it should be, at the least, difficult to expel an EU citizen on the basis of crimes of dishonesty, but that violence is a different matter. As to the necessary level of violence, no attempt has been made to lay down rules or guidelines at Community level, and the member state is therefore given a certain amount of judgement in deciding what its law-abiding citizens must put up with. It may be recalled that at §§ 33-34 of Bouchereau the ECJ cited Case 41/74  ECR 1337 (Van Duyn):
the concept of public policy in the context of the Community and where, in particular, it is used as a justification for derogating from the fundamental principle of freedom of movement for workers, must be interpreted strictly, so that its scope cannot be determined unilaterally by each Member State without being subject to control by the institutions of the Community. Nevertheless, the particular circumstances justifying recourse to the concept of public policy may vary from one country to another and from one period to another, and it is therefore necessary in this matter to allow the competent national authorities an area of discretion within the limits imposed by the Treaty.
I would apply that general approach to hold that in the absence of any detailed guidance from the institutions of the Community the organs of the member state, provided that they conscientiously apply the terms of the Community legislation, are given power to determine, with due regard to the seriousness ascribed to forms of conduct by domestic law, whether that conduct fulfils the Community criterion of seriousness. The first tribunal properly exercised that power in this case.
Reference to the ECJ?
i) What is the effect of the word "serious" in the phrase "serious grounds of public policy or public security" in article 28(2) of Directive No 2004/38/EC on the analysis that national courts must apply before the fundamental right to freedom of movement of Union Citizens or their family members is restricted by expulsion measures?; or
ii) What is the precise meaning to the attributed to the word "serious" in the phrase "serious grounds of public policy or public security" in article 28(2) of Directive No 2004/38/EC given the requirement in article 27(2) of the Directive that the personal conduct of the person concerned must in any event represent a "genuine, present and sufficiently serious threat affecting the fundamental interests of society"?