ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: IA/09429/2007]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LADY JUSTICE SMITH
| VP (Italy)
|- and -
SECRETARY OF STATE FOR THE
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400 Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Cyril Hume (instructed by Messrs Doves) appeared on behalf of the Respondent.
Crown Copyright ©
Lord Justice Carnwath:
"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"
"You … attacked [the victim] with a knife [while she was asleep] in a most determined and ferocious manner. You inflicted no less than 32 knife wounds, the deepest of which penetrated to 10cms … In addition you pulled her head back and twice tried to cut her throat, inflicting serious wounds to that part of her body."
"…why you reacted with such extreme violence and chose Miss Wilson as your victim, who was in no way responsible for your situation, is still not clear."
The judge also observed that the appellant kicked the telephone out of Miss Wilson's hands as she lay injured and bleeding trying to summon help. He did not accept that the respondent could not remember what he did that night. He commented:
"That said, as your counsel has pointed out, and I accept, the probation officer assesses you as unlikely to be a risk to others, and the psychiatrist comes to broadly the same conclusion. However, if you can react with potentially lethal violence to these ordinary stresses of and strains of life against someone who had done you no harm, I cannot be sure that you would not do so again, and with that in mind I propose to pass an extension period of licence supervision."
"... no appreciable change in either [the respondent's] recollection of the offence or his understanding of its causes, as contained in the pre-sentence and psychiatric reports."
"The pre-sentence and psychiatric reports and the prison actuarial risk predictor indicate a low risk of reconviction, and so long as [Mr P] deals appropriately with his problems and avoids the psychological distress, as well as substance misuse, that he experienced prior to the offence I think he is unlikely to re-offend. However, my concern would be raised upon hearing that he had entered into another domestic relationship."
He went on to say that Mr P had displayed maturity during the sentence and focused well on preparing for a return to life in the community.
"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'."
In the following paragraph they said that they doubted whether the words "are intended to apply in any general sense to even a serious risk of the commission of even quite serious criminal offences".
"Our conclusion is that imperative means that it is either essential or vital to public security that the person concerned should be removed. Even if this particular threshold were designed not only to capture those who represent a threat at the terrorist level, our conclusion is that the threat must be so great and compelling that there is no option but for the Appellant to be removed."
He went on to say that the focus must be "on the risk of reoffending". Then, having considered the background and the view taken by the judge and the probation officers, he concluded at paragraph 53:
"The Appellant still has significant problems. He has committed an appalling crime. He has not been a model prisoner, having had four adjudications for distilling liquor. He represents at least a low risk of re-offending and a medium risk of harm to others in any relationship. But for the impact on the Appellant's case of being here for over 10 years, we may well be persuaded that the personal conduct of the Appellant represented a genuine, present and sufficiently serious threat to warrant his removal. His case is not one however, that is captured by the more demanding and more pressing requirement that his removal is imperative on the grounds of public security. Our conclusion therefore is that the Respondent has not demonstrated the Appellant's circumstances and the threat he poses are so serious and far reaching that he must be removed in accordance with Regulation 24(4)."
"'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'.
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."
"…we cannot accept the elevation of offences to 'imperative grounds' purely on the basis of a custodial sentence of five years or more being imposed. As it was said by Carnwath LJ in LG … there is no indication why the severity of the offence in itself is enough to make the removal 'imperative' in the interests of public security. Such an offence may be the starting point for consideration, but there must be something more, in scale or kind, to justify the conclusion that the individual poses 'a particularly serious risk to the safety of the public or a section of the public'. Terrorism offences or threats to national security are obvious examples, but not exclusive. Serial or targeted criminality of a sufficiently serious kind may also meet the test. However, there needs to be some threat to the public or a definable section of the public sufficiently serious to make expulsion 'imperative' and not merely desirable as a matter of policy, in order to ensure the necessary differentiation from the second level."
"In our view, even acknowledging the seriousness of the offence in 2000, and the possible risk of re-offending, we do not think that expulsion is a proportionate response for someone who came here as a child, has acquired a right of permanent residence in this country, has lived here for some 15 years before the crime was committed, and has no significantly links with Italy. In such a case we think that public policy considerations should carry little weight. As for public security, in one sense, of course, any risk of further offences as brutal as that committed in 2000 represents a threat to public safety, but that threat is no different in kind than is presented, unfortunately, by many other offenders for whom expulsion is not an available response. For these reasons we do not think that the decision to deport LG was justifiable. On the facts as at the date of the hearing in January 2007, LG was entitled to succeed in his appeal."
(Mr Hall reserves his position as to what we said there about public policy considerations as applied to the second level of protection, but he accepts that it does not affect the relevance of the guidance under the third level of protection).
"This reflects his determination and his supportive parental influence."
He goes on to say that he has now completed the first two sessions of the Integrated Domestic Abuse Programme and that generally there have been no concerns about his behaviour or no signs of alcohol misuse or depression.
Lady Justice Smith:
Lord Justice Laws:
Order: Appeal dismissed.