COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
IMMIGRATION JUDGE PAGE AND MR P RODGERS JP
Strand, London, WC2A 2LL
B e f o r e :
LADY JUSTICE ARDEN
LORD JUSTICE CARNWATH
| LG (ITALY)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Tim Eicke (instructed by Treasury Solicitors) for the Respondent
Hearing date : 7th February 2008
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1) (On the appeal) whether, on the basis that, as found by the AIT, LG satisfied the 10-year residence criterion under the 2006 Regulations, the AIT had been entitled in law to hold that there were "imperative grounds of public security" for removing him;
2) (Under the respondent's notice) whether the AIT erred in law in holding that LG satisfied the 10-year residence criterion, in view of the fact that for the preceding 7 years he had been in prison.
"I think you are a thoroughly dangerous man… I don't think for offences of robbery of this type it gets much worse"
The court imposed two separate but concurrent sentences of 12 years imprisonment. (They were later reduced on appeal to 9 years, for technical reasons). He had been arrested in January 2000, and has been in prison ever since.
"… unable to accept… that this ground cannot include the history of serious criminal offending that this appellant has committed and any risk of repetition…" (para 65)
On that basis, they considered, in agreement with the sentencing judge, that LG was "a very dangerous man", and that he "continues to pose a very serious public risk indeed". They took account not only of the seriousness of his offences, but also of his apparent unwillingness to accept any real responsibility for the injuries to his victim. They held also that the removal was proportionate for the purposes of Article 8 (para 62-68). Accordingly the appeal was again dismissed.
"The argument that the tribunal made a material error of law in its interpretation of the requirement of "imperative grounds of public security" in relation to deportation of an EEA national who had resided in the United Kingdom for a continuous period of ten years contained in regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006 has a real prospect/chance of success and a ruling by the Court of Appeal on the point would provide helpful guidance for the tribunal in future cases."
In response to the appeal the Secretary of State offered to consent to an order remitting the case to the AIT. According to Mr Eicke's skeleton argument, the Secretary of State considered that the tribunal may have made "a fundamental error" by directing itself "by reference to purely domestic law rather than by reference to the legislation and guidance relevant to EC free movement law". However, that offer was not acceptable to the appellant, who (perhaps understandably) wished the court first to determine the substantive point on which guidance had been sought by the SIJ when granting leave. Before us, the Secretary of State sought and obtained permission out of time to file a respondent's notice, raising the second principal issue identified above.
"A person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good."
Nothing turns on the 1971 Act as such, since the criteria for deportation of EU citizens have since become subject to a detailed code under European legislation. The 2006 Regulations which now apply to this case were designed to transpose the relevant provisions of Directive 2005/38 into English law. As I understand it, there is no dispute as to their conformity with the Directive. The Directive, including its Preamble, remain relevant as aids to interpretation.
The 2006 Regulations
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.
(3) Subject to paragraphs (4) and (5), 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.
21(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—
(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(5)…" (emphasis added)
"…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" (reg 21(6)).
The hierarchy and the "imperative grounds" test
1) A general criterion that removal may be justified "on the grounds of public policy, public security or public health";
2) 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";
3) 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".
The regulations provide no further guidance on the meaning of these expressions.
"In so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national 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." (para 35)
The Court of Appeal has long accepted that removal on "public policy" grounds may be a justified response to sufficiently serious criminal conduct, if combined with evidence of a propensity to reoffend, and in particularly serious cases even without it (see Marchon v IAT  ImmAR 384; Goremsandu v Secretary of State  ImmAR 250; R(Schmelz) v IAA  EWCA Civ 29). The "imperative grounds" test is new, and has not as far as we know been the subject of judicial consideration in the higher courts, in this country or elsewhere.
The 2004 Directive
"Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens."
"Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen in the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure."
"…a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their families may be denied leave to enter or may be expelled….
Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.
Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life…" (Preamble paras 22-24)
The Operational Enforcement Manual
"A conviction for murder, a terrorism offence, a drug trafficking offence, a serious immigration offence, or a serious sexual or violent offence carrying a maximum penalty of 10 years or more might constitute serious grounds of public policy or public security…
Imperative grounds of public security will involve national security matters, or crimes that pose a particularly serious risk to the safety of the public or a section of the public. Imperative grounds in this respect might be where the person has been convicted of murder, a terrorism offence, a drug trafficking offence, a serious immigration offence, or a serious sexual or violent offence carrying a maximum penalty of 10 years or more and been sentenced to a custodial sentence of 5 years or more." (emphasis added)
"This means committing crimes that pose a particularly serious risk to the safety of the public or a section of the public and having a propensity to reoffend."
Examples are given, including conviction for murder, a terrorism offence or –
"… a serious sexual or violent offence carrying a maximum penalty of 10 years or more with a proven track record of re-offending…"
The following paragraph refers to regulation 21(4), which it explains as follows:
"… if somebody has resided in the UK for a continuous period of at least 10 years prior to the decision to deport (excluding time spent in custody) there must be imperative grounds of public safety (sic). The difference between serious and imperative grounds is one of severity: alongside the propensity to re-offend, generally these grounds will include offences that carry a maximum penalty of at least 10 years and the person will have been sentenced to a custodial sentence of at least 5 years." (emphasis added)
Submissions on the appeal
"These appeals are undoubtedly to be considered within the calculus of removals for which provisions are 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 grounds 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 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 the 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". (emphasis added)
The wider picture
1) Weight must be given to different tests within the new hierarchy. The words "imperative grounds of public security" at the third level are clearly intended to embody a test which is both more stringent and narrower in scope than "serious grounds of public policy or public security" at the second level.
2) "Public security" is a familiar expression, but it does not appear to have been subject of judicial definition. I see no reason to equate it with "national security". That expression was discussed in Secretary of State v Rehman  UKHL 47, where Lord Slynn said:"There must be some possibility of risk or danger to the security or well-being of the nation which the Secretary of State considers makes it desirable for the public good that the individual should be deported…" (para 15)"Public security" to my mind is a broader concept. The earlier version of the manual referred in this connection to –"… national security matters, or crimes that pose a particularly serious risk to the safety of the public or a section of the public".The words "risk to the safety of the public or a section of the public" seem to me reasonably consistent with the ordinary understanding of "public security". In the latest version of the manual, the utility of that description is reduced, because it is used for the second level, "public policy or public security", without distinction between the two parts.
3) The word "imperative", as a distinguishing feature of the third level, seems to me to connote a very high threshold. The earlier version of the manual treats it as equivalent to "particularly serious". In the latest version, the expression "particularly serious risk" is used for the second level. The difference between the two levels, that is, between "serious" and "imperative", is said to be "one of severity", but there is no indication why the severity of the offence in itself is enough to make removal "imperative".
4) The same thinking is reflected in the examples of offences given in the manual. Both levels require a serious offence linked to a propensity to re-offend. The second "serious" level encompasses "a violent offence carrying a maximum penalty of 10 years"; the third "imperative" level requires not only a maximum penalty of 10 years but also an actual sentence of at least five years. It is not clear why the mere fact that a five year sentence has been imposed should make removal "imperative".
5) Neither version of the Manual seems to me to give adequate weight to the distinction between levels two and three, or to the force of the word "imperative". To my mind there is not simply a difference of degree, but a qualitative difference: in other words, level three requires, not simply a serious matter of public policy, but an actual risk to public security, so compelling that it justifies the exceptional course of removing someone who (in the language of the Preamble to the Directive) has become "integrated" by "many years" residence in the host state.
The second issue – which level of protection?
Lady Justice Arden :
(1) Regulation 21(4) must on general principles be interpreted so far as possible to have the same meaning as the equivalent words in Article 28(3) of the Directive;
(2) As explained by Carnwath LJ, the Directive draws a distinction between "serious grounds of public security" and "imperative grounds of public security";
(3) The AIT have not considered the meaning of the regulations in the light of the Directive in that they have not quantified and taken into account the distinction between "serious grounds of public policy or public security" and "imperative grounds of public security".
Protection contre l'éloignement
1. Avant de prendre une décision d'éloignement du territoire pour des raisons d'ordre public ou de sécurité publique, l'État membre d'accueil tient compte notamment de la durée du séjour de l'intéressé sur son territoire, de son âge, de son état de santé, de sa situation familiale et économique, de son intégration sociale et culturelle dans l'État membre d'accueil et de l'intensité de ses liens avec son pays d'origine.
2. L'État membre d'accueil ne peut pas prendre une décision d'éloignement du territoire à l'encontre d'un citoyen de l'Union ou des membres de sa famille, quelle que soit leur nationalité, qui ont acquis un droit de séjour permanent sur son territoire sauf pour des raisons impérieuses d'ordre public ou de sécurité publique.
3. Une décision d'éloignement ne peut être prise à l'encontre des citoyens de l'Union, quelle que soit leur nationalité, à moins que la décision ne se fonde sur des motifs graves de sécurité publique défines par les États membres, si ceux-ci:
(a) ont séjourné dans l'État membre d'accueil pendant les dix années précédents; ou
(b) sont mineurs, sauf si l'éloignement est nécessaire dans l'intérêt de l'enfant, comme prévu dans la convention des Nations unies sur les droits de l'enfant du 20 novembre 1989."
"For the reasons we have given above we find that the respondent has met the evidential burden of showing that there are imperative grounds of public security for removing this appellant from the United Kingdom to Italy and we have found that the Tribunal's decision in MG and VC above is not sufficiently clear authority to have established that the meaning of this phrase "imperative grounds of public security" entitles this appellant to remain in the United Kingdom given the seriousness of his offences and the continuing risk which we find has been identified by the probation officer in her report of 17 August 2006 and our conclusions about the evidence before us, which includes all the evidence not specifically referred to in the determination. We therefore dismiss the appeal against the decision to deport above for the reasons given."
Lord Justice Mummery :