Neutral Citation Number: [2008] EWCA Civ 806
Case No: C5/2007/2426
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE LANE
IA/12006/2006
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/07/2008
Before :

Lord Justice Waller
Lord Justice Buxton
and
Lady Justice Smith
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Between :

	Hussein Bulale	Appellant	
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	The Secretary of State for the Home Department	Respondent	
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(Transcript of the Handed Down Judgment of
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Miss Adeyinka Adedeji (instructed pro bono by the Citizens’ Advice Bureau, Royal Courts of Justice branch) for the Appellant
Miss Samantha Broadfoot (instructed by The Solicitor to Her Majesty’s Treasury) for the Respondent

Hearing dates : 14 May 2008
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Judgment

Lord Justice Buxton : 
1.	This case has, in accordance with the precautionary administrative practice in immigration cases, been so far titled in anonymous form.  Examination of the case however shows that there is no reason for concern that Mr Bulale will be at risk in relation to anything revealed in these proceedings, which will accordingly proceed in nominated form.
The history of this appeal
2.	Mr Bulale, a citizen of the Netherlands, contests a decision of the Secretary of State on grounds of public policy, namely Mr Bulale’s propensity to commit serious criminal offences, to deport him from this country under the provisions of the Immigration (European Economic Area) Regulations 2006 [the Regulations].   His appeal failed before a panel of the AIT [the first tribunal] and also on reconsideration before Senior Immigration Judge Lane.   Although in form the appeal is from SIJ Lane, we have in substance been concerned with the decision of the first tribunal.
3.	Before the first tribunal and before SIJ Lane Mr Bulale was represented by a member of his then firm of solicitors.   When his appeal to SIJ Lane failed the solicitors instructed counsel, under a CLSF certificate, who settled lengthy grounds of appeal and a very lengthy skeleton, on the basis of which a single Lord Justice was persuaded to give permission to appeal to this court.   When that appeal was called on before a different constitution of this court on 14 April 2008 the court was told by counsel then appearing for the Secretary of State that Mr Bulale’s solicitors had come off the record and his counsel was no longer instructed.  It was clearly wholly unsatisfactory that Mr Bulale should have to represent himself in a case that raises a point of some general interest, and in which he was facing significant difficulties.   The court accordingly adjourned the appeal in the hope of some representation being arranged.   That has now been provided, through the offices of the Citizens’ Advice Bureau at the Royal Courts of Justice, by Miss Adedeji acting pro bono.  She presented a helpful argument that, by a well-judged decision, depended very little on the work of her predecessor.  
4.	It is greatly to the credit of the professions that that arrangement was made.   I am less clear that it was to the credit of the professions that Mr Bulale was left at the door of the court without representation, and with the court not knowing why that was.   The court did not think it appropriate to pursue enquiries while the appeal was in progress, but it will now investigate the circumstances of Mr Bulale’s previous representation.
5.	Further difficulties then arose.  The point on which (with, as indicated below, a modest amount of encouragement from the bench) Miss Adedeji concentrated her argument did not appear at all in her predecessor’s grounds or skeleton, and had not been taken before either of the tribunals below.  Miss Broadfoot very reasonably asked for time to meet it, and that wish was accommodated by an adjournment for further written argument.   She then produced, in a very short period of time, a submission the comprehensiveness of which underlined our initial impression that there is very little authority to guide us.  The production of further observations by Miss Adedji was then delayed by her unavailability.  We felt obliged to extend indulgence so far as time was concerned by reason of the circumstances in which she had entered the case.
The Regulations
6.	The Regulations transpose into United Kingdom domestic law the requirements of the “Citizens’ Directive” 2004/38/EC.   In her judgment in LG(Italy) v SSHD [2008] EWCA Civ 190 Arden LJ drew attention to the French text of the Directive, which appears to substitute for each other two expressions that are used in the English version.  Carnwath LJ at §30 of his judgment in that case suggested that the French text had been drawn up in error.  He pointed out that the Italian and Spanish texts follow the same form as the English.  Miss Broadfoot helpfully put those texts before us, together with the Dutch and German texts that are also in the same form as the English version.  Despite this difficulty about the French text it was not suggested either in LG(Italy) or in our case that the Regulations, by following the English text of the Directive, has failed adequately to transpose the Directive.  It will therefore be possible to confine ourselves to the text of the Regulations.
7.	The Regulations apply to any EEA national who has been admitted to or has acquired a right to reside in the United Kingdom.  Such a person may be removed from the United Kingdom if, by regulation 19(3), the Secretary of State decides that his removal is justified on grounds of public policy, public security or public health.  The power of the Secretary of State to make such a decision is however significantly circumscribed by Regulation 21.  
8.	The effect of Regulation 21 was, with respect, helpfully set out by Carnwath LJ in §14 of his judgment in LG(Italy):
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”.
9.	It will be convenient to note here that while LG(Italy) was a “ten year” case, Mr Bulale asserts that he has a permanent right of residence, on the basis, by regulation 15, of residence in the United Kingdom for a continuous period of five years.   He cannot therefore be removed except on “serious” grounds of public policy.  At an earlier stage of the process the Secretary of State conceded that Mr Bulale has a relevant continuous period of residence of five years, and despite second thoughts on her part very fairly does not seek to withdraw that concession.  However, the concession was only doubtfully correctly made.   For much of the period of five years relied on Mr Bulale was in detention.   The periods of residence contained in the Regulations, and in the Directive, are there to concretise the principle set out in recital 23 to the Directive, which requires the scope of measures to expel persons to be limited according to the extent to which the person has integrated into the host state.   It is difficult to think that that process of integration can take place while a person is living outside normal society in the host state, not because of illness or accident, but because he has chosen to breach the societal norms of that state.   I hope that an early opportunity will arise for that point to be tested further.
10.	Reverting to the Regulations, in addition to the hierarchy of regulation 21 any decision on grounds of public policy or public security must be taken in accordance  with the principles set out in regulation 21(5), which are:
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.
11.	Third, by regulation 21(6) the decision maker, before taking any decision on grounds of public policy or public security, 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”.
12.	It may be noted, relevantly to our case, that regulation 21(5)(e), which prevents reliance on a person’s criminal convictions “in themselves”,  reproduces the effect of the ruling of the European Court of Justice in Case 30/77 [1977] ECR 1999 (Bouchereau) §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.
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.
Mr Bulale
13.	Mr Bulale was born in Somalia on 23 July 1985, so is now 22 years of age.  He arrived in the UK from France in 2001 together with his mother and four siblings.  He and, it would appear, the rest of his family are citizens of the Kingdom of the Netherlands, thus citizens of the EU entitled to the protection of the Citizens Directive and of the Regulations.
14.	Mr Bulale gave vague evidence to the first tribunal claiming at most only a few months’ employment since he came to the United Kingdom.  Much of his time has, unfortunately, been occupied in committing crimes or serving sentences as a result of his offences.  Of the latter the most serious were:
•	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.
15.	The first tribunal, at §34 of its determination, set out the circumstances of the last offence of robbery, taken from the Judge’s sentencing remarks:
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
16.	The first tribunal correctly understood that it must be satisfied that Mr Bulale was a present threat to the interests of society, and that his past record was not in itself sufficient.   It had before it the pre-sentence report of a probation officer,  Mr Diamond, written when Mr Bulale was before the court in 2005, which drew attention to Mr Bulale’s poor thinking and lack of concern for his victims, and  concluded
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.
17.	The first tribunal also had a report and oral evidence from a Mr Morris, a former probation officer, who had been instructed on behalf of Mr Bulale and reported on the strength of two interviews with him.  He was told by Mr Bulale that during his sentence he had recognised his responsibility for his offending and had plans for improving his education and for employment.   Mr Morris considered that this change of attitude, added to the future support of his family and of the probation service, reduced the risk of reoffending.   The tribunal carefully analysed what Mr Morris had said, and also questioned Mr Bulale about the various issues.   It found that the issues as to employment had not been investigated and that the educational prospects were vague.   It was sceptical about the effect of the assistance of the probation service, in view of the fact that Mr Bulale had been in contact with the service, including under a community rehabilitation order, since his first offence in 2002.   It was also unable to see return to his family in a positive light.   Mr Bulale’s brother was living at home after release from a sentence for robbery, and the tribunal was further concerned that the previous offences had been committed with associates from that area.  Having heard evidence from Mr Bulale’s mother the tribunal was unable to conclude that she would be a source of parental support or guidance to reduce the re-offending risk of Mr Bulale (who, it must be remembered, is now 22 years old).
18.	After that review, the first tribunal preferred and adopted the more pessimistic assessment of Mr Diamond.  It was submitted in the grounds that it had been perverse to do so, and Miss Adedeji loyally maintained that submission, though not with any great enthusiasm.   In truth, the contention was hopeless.   The tribunal appreciated that Mr Morris’ report, if sound, was of substantial importance for the appellant, and accordingly treated it very seriously.  They gave detailed and cogent reasons why they could not adopt it.   It would have been open to them to take a different view, but they cannot possibly be said to have erred in law in the view that they did take.
19.	Having found that Mr Bulale presented a high risk of re-offending, the first tribunal did not go on to say in terms what form that re-offending might take.  However, it is both inherent in their approach, and a matter of commonsense, that what concerned them was that there was a high risk of the further commission of the offences of the same order as Mr Bulale’s most recent offence of robbery.   In assessing whether he comes within the requirements of the Regulations it is therefore necessary to assume that he presents a high risk of committing robberies of some seriousness.
The requirements of the Regulations
20.	On the assumption that Mr Bulale has a right of residence in the United Kingdom, he can only be expelled if there are serious grounds of public policy [regulation 21(2)] threatening one of the fundamental interests of society [regulation 21(5)(c)]; and the expulsion additionally is proportionate in the light of the factors referred to in regulation 21(6).
Fundamental interests of society
21.	This element in the scheme can be shortly dealt with.  Protecting members of society from violent crime, at least of a sufficiently serious nature, is clearly a fundamental interest of that society.   Mr Bulale, by his propensity to commit robbery, threatens that fundamental interest.
Serious grounds of public policy; a sufficiently serious threat
22.	This is the most difficult part of the case, and the only issue of general importance that it raises.   Does a propensity to commit robberies of the kind of which Mr Bulale was last convicted constitute, in terms of the Directive, a sufficiently serious threat to society to justify his expulsion?
Is this argument open to Mr Bulale?
23.	Miss Broadfoot pointed out, correctly, that this issue had not been raised before the AIT, nor in the skeleton settled by Mr Bulale’s previous advisers in this court.   The AIT could not, therefore, have erred in law in not addressing the point; on a reconsideration, which this case was, the AIT only had jurisdiction to consider points addressed in the order for reconsideration or those which were Robinson-obvious; and accordingly this court in turn had no jurisdiction to consider the point on appeal.
24.	I have concluded that this court does have jurisdiction to consider this issue, but I would emphasise the importance of the principles referred to in the previous paragraph, and the importance of only departing from them in very particular circumstances.   I would agree with Miss Broadfoot that the point now under consideration is not “Robinson-obvious” in the sense that a court could be criticised for not taking it of its own motion.   However, the issue appeared to this court, on seeing the papers, to be engaged and to be of some general importance.   That was the principal reason why the court went to the considerable lengths described earlier in this judgment to ensure that Mr Bulale was represented before it, and that this point was taken on his behalf.  The basis of the Robinson doctrine is, as Lord Woolf MR said, [1998] QB at p 945B-G, that as organs of the state the appellate authorities are bound to exercise their powers to ensure the state’s compliance with its international obligations.   That observation was in Robinson itself directed at the High Court in its appellate role, but they must apply equally to the Court of Appeal.  Accordingly, and whether or not the point is “obvious”, once it has in fact occurred to the court it must be open to the court to pursue it.   I stress that that gives no general licence to the parties to reformulate their case once it arrives in this court.
The relevant jurisprudence
25.	We could not find, and have not been shown, any direct guidance on the question of what suffices to make threatened future criminal conduct “serious” in the sense of the Regulations and the Directive.   Miss Broadfoot drew attention to two indirect matters.  First, in the travaux of the Directive it appears that the original proposal of the Commission was that there should be a complete prohibition of the expulsion of EU citizens who had achieved a right of permanent residence.  The Council expressed strong opposition to that position, and by a process that is unclear that opposition came to be expressed in article 28 of the Directive, which regulation 21 transposes.  The only indication of how that position was achieved is in a report of the Economic and Social Committee in April 2002, that had suggested that expulsion could be based on the past commission of (note, not the propensity to commit) “crimes such as terrorism, trafficking in weapons or drugs and crimes against the person.”   That is of some assistance, because it suggests that “crimes against the person,” not further delimited, are put on the same level as crimes that are obviously a serious threat to society such as terrorism and drug trafficking.
26.	Second, the court in LG(Italy) was shown the “Operational Enforcement Manual” then used by the Secretary of State to guide her officers in applying the Regulations.   The court observed that the Secretary of State could not use the Manual as a guide to the interpretation of the Regulations; but I think that  the subject could no doubt complain if he was expelled in circumstances not envisaged by the Manual.  The Manual has now been replaced by guidance to caseworkers, which says in relation to cases of the order with which we are concerned:
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.
27.	The appellant suggested that an analogy should be drawn with the approach to article 1F(b) of the Refugee Convention, which excludes from the protection of that Convention a person who has committed a “serious” non-political crime.   No authority on that term was shown to us, and the court has not found any during its own (comparatively brief) researches.  However, I would accept that respected commentary suggests that article 1F(b) will only be engaged by conduct more extreme than that engaged in by Mr Bulale.   I would however accept Miss Broadfoot’s submission that the analogy is not persuasive.   Article 1F is a very stringent, some might say extreme, provision.  It is not engaged at all unless the subject is shown to be at risk of Convention persecution if refouled; but if engaged it deprives the subject of protection from that persecution.   Very exacting pre-conditions are properly required before a state is able to take that course.
28.	How, then, should the national court proceed?   The first tribunal concluded in its §60 that looking at the totality of the evidence Mr Bulale
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 [1974] ECR 1337[18] (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?
29.	The appellant submitted that in the absence of guidance at Community level the court should submit the question arising in this case for guidance by the ECJ.   Two alternative questions were submitted for consideration:
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”?
30.	We did not receive any further submissions in support of those questions, and therefore the thrust of them is not entirely easy to discern.   However, two points would seem to be raised.   First, what is the meaning or implication of the word “serious” in Community law?   Second, do the cumulative effects of article 27(2) and 28(2) in some way affect the proper approach to article 28(2)?  To take the second of these points first, article 27(2) is a “general principle”, transposed into domestic law by regulation 21(5): see §10 above.  Article 28(2), transposed into domestic law by regulation 21(3), then makes particular provision in the case of a person with a right of residence, such as for present purposes Mr Bulale is assumed to be.   There is no reason not to think, as did the first tribunal in this case (see § 28 above), that both the general and the particular requirement must be fulfilled, but that these are indeed separate requirements, where the interpretation of the one is not affected by the interpretation of the other.
31.	That approach feeds into the first question, of whether the ECJ should be asked to give definitive guidance on the implications of “serious” grounds and “serious” threat.   To regard those terms as susceptible of treatment as legislative guidance would be contrary to the approach of Community law as set out in Bouchereau and Van Duyn: see §28 above.   The Community legislator has deliberately decided to restrict itself to general guidance, and not to constrain member states in more detail than those authorities provide.  Reference of either of these questions to the ECJ would be to invite an attempt at definition of a concept that the legislation treats either as undefineable or as sufficient in itself to guide the decisions of member states.  I would not make such a reference.
Proportionality
32.	The first tribunal succinctly but entirely adequately addressed Mr Bulale’s state as an unmarried man of 21; lack of any particular dependency between him and his mother and siblings; ability to speak Dutch; and his fourteen years in the Netherlands, including the whole of his school career; as indicating that it would not be disproportionate to require him to return there.   Those findings are unchallengeable.
Disposal
33.	I would dismiss this appeal, and agree with SIJ Lane in upholding the, if I may say so, careful and impeccably reasoned determination of the first tribunal.
34.	Lady Justice Smith:  I agree
35.	Lord Justice Waller:  I also agree