Case No: C5/2008/1551
Neutral Citation Number: [2010] EWCA Civ 806
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No: IA/09429/2007]

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Thursday, 17th June 2010

Before:

LORD JUSTICE LAWS
LORD JUSTICE CARNWATH
and
LADY JUSTICE SMITH

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	VP (Italy)	
Appellant 	
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SECRETARY OF STATE FOR THE
HOME DEPARTMENT	

Respondent	

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Mr Jonathan Hall (instructed by the Treasury Solicitors) appeared on behalf of the Appellant.
Mr Cyril Hume (instructed by Messrs Doves) appeared on behalf of the Respondent.

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Judgment
Lord Justice Carnwath:  

1.	This is an appeal from a decision of the Asylum and Immigration Tribunal.  The effective decision is that of Immigration Judge Dawson given in September 2007; that was confirmed on reconsideration by SIJ Taylor in May 2008.  The Tribunal allowed the appeal against the Secretary of State’s decision made in June 2007 that the respondent was to be deported on public security grounds.  That decision was based on his conviction of a very serious offence to which I will come, in September 2003.  

2.	The law on this subject has been considered in detail by this court in LG (Italy) [2008] EWCA Civ 190 and on remittal to the AIT in the same case at [2009] UKAIT 00024, in which I sat as President.  As I understand Mr Hall, who appears for the Secretary of State today, he does not question the guidance given in those authorities as far as the present case is concerned.

3.	The relevant regulations were set out at the end of the Tribunal’s decision in LG and discussed there, so I do not need to take much time on them.  We are concerned with the European Economic Area Regulations 2006.  They deals with such things as rights to residence under Regulation 15: a right to residence in this country is acquired by an EEA national after a continuous period of five years residence.  Regulation 21 deals with decisions taken on “public policy, public security and public health grounds”.  In summary, the regulation embodies three levels of protection against deportation on such grounds.  
4.	For present purposes, it is sufficient to say that the first stage, where there has been no significant residence beforehand, is governed by reg. 21(6) which says that a decision taken on grounds of public policy or public security must also have regard to the following principles.  It must comply with proportionality, it must be based on the personal conduct of the person concerned and “(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.  Further under (e) a person’s previous criminal convictions do not in themselves justify the decision.  So that is the first level.

5.	In relation to someone who has acquired a right of residence as a result of five years’ continuous residence, the position is governed by 21(3).  The decision may not be taken “except on serious grounds of public policy or public security”.  And then the third level, with which we are concerned, is under 21(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”

6.	The Secretary of State applied that third level in this case.  There is an argument at least that that was too high a level of protection, given that the respondent was in prison before the decision was taken, but in any event by concession Mr Hall accepts that we should apply that test, and that was the test applied by the Tribunal.  

7.	It is important to note at this stage that what we are talking about here is expulsion of citizens of EU states from one state to another state.  One can see, therefore, why even at the lowest category the threshold is set reasonably high and there needs to be a sufficiently serious threat affecting one of the fundamental interests of society. That no doubt reflects the view that in a case like the present, where the respondent has lived in this country very many years and there is no remaining link with his country of birth (in this case, Italy), there is no obvious reason for exporting the problem from one European country to another unless there is some very serious issue.  

8.	The background facts are that the respondent was born in Naples in 1965.  He came here in 1986, married a British citizen in 1987 with whom he had a son.  They divorced in 1997 but it seems that his relations with his son continued to be good, and indeed he continued to have reasonable relations with his former wife.  He also had various types of work.  There were no criminal or other problems at all until the offence which gave rise to the deportation order.  It is clear that that was a shocking offence.  It arose out of a relationship he had formed with a friend, Tina Wilson, at the end of 2002.  He had moved in with her, and then in December 2002 he attacked her.  These events followed him losing his job as a pizza chef in September 2002.
9.	The judge at the trial described it thus: 

“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.”

10.	That led to his conviction for attempted murder and he was sentenced to nine years in prison with an extension period of four years’ supervision.  Again, referring to the judge’s remarks, he said: 

“…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.”

11.	When the Secretary of State came to make his decision in 2007, he had before him also a more up-to-date parole assessment report dated January 2007 which noted that there had been: 

“... 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.”

It continued:

“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.

12.	The Secretary of State’s decision letter sets out the history and describes the offence in some detail, but does little to assist on the question which is before us.  At the top of the second page of the letter, the writer says that it is considered that the deportation is justified on imperative grounds of public security in line with Regulation 21(4).  The letter then sets out the history over a couple of pages, noting as a result the conclusion that “you have the propensity to re-offend”; but the letter then does not avert to the test of imperative grounds but turns to the question of proportionality under Regulation 21(6).  It notes that although Mr P has no links with Italy, it is considered that, as he spent his youth and formative years there and speaks Italian, he should be able to readjust.

13.	When the matter came before Immigration Judge Dawson, the most recent guidance available in the Tribunal was a case called MG and VC [2006] UKAIT 53.  The judge set out the relevant part of that.  He noted that the part where reference was made to a submission by a former representative of the Secretary of State had indicated on instructions that the phrase imperative grounds of public security “was a reference to the commission or suspicion of commission of terrorist offences”.  But the Tribunal in MG and VC looked at it rather more broadly.  They said that: 

“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”.

14.	Immigration Judge Dawson indicated that, although that was not binding on him, he thought it was guidance which he should follow.  At paragraph 47 he said this: 

“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).”

15.	Before us, Mr Hall criticises those findings on what seem to be two main grounds.  First, he says that the judge put the case too high when he used phrases such as “essential” or “vital”, and the suggestion that the threat must be so great that there is “no option but for the appellant to be removed”.  He says that that really is a gloss on the words of the Regulation which is not justified, and indeed goes beyond what is now known to be the correct test as applied in LG .  

16.	Secondly, Mr Hall says that there was a failure to take account of the views of the Secretary of State who, as recognised in LG, has an important role in such matters in considering what are relevant public policy considerations.  I can dismiss that last point immediately because, whatever the proper approach may be to the Secretary of State’s reasoning in other cases, in this case the Secretary of State has given no guidance at all as to why he would have regarded this as an “imperative” case.  So it comes back to whether the test adopted by the judge also was too high.

17.	For the appropriate approach, one turns therefore to the decision in LG.  The Court of Appeal indicated that it felt that it needed further guidance as to how these tests should be applied, and in particular would wish the Secretary of State to reach a more settled view of the legal interpretation. In giving the leading judgment I said this at 32(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 [2001] 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.”

18.	The Tribunal had to apply that to the facts of LG’s case.  Those were summarised in paragraph 10 and following.  He was also a citizen of Italy who had lived in the United Kingdom since 1987.  He had been convicted in 2001 of robbery and grievous body harm with intent and sentenced to a term reduced on hearing to nine years.  The offence had been a severe attack on an old man in the street, followed by robbing him of his wallet.  The sentencing judge described his offence as “a brutal, senseless, cowardly act upon an elderly gentleman” and told him that he was a “thoroughly dangerous man.  I do not think for offences of robbery of this type it gets much worse”.  The Tribunal had noted that on the evidence the appellant had not shown that he did not pose a risk of further harm to the public by way of reoffending, and he had not indeed accepted that he had committed a particularly grave offence. On those facts they decided that the imperative test was satisfied.  
19.	That decision was overturned on appeal by the Court of Appeal, which sent it back to the AIT.  In dealing with that position, the AIT summarised the effect of the Court of Appeal decision at paragraph 110.  They said this: 

“…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.”

20.	In dealing with the facts of the particular case, we found that on the basis of our interpretation of the regulation the appellant did not qualify for the highest level of protection because of the time spent in prison.  But nonetheless we decided that applying the second level of protection, and having regard to the question of proportionality, the Secretary of State’s decision to deport could not be upheld.  I will read what we said at paragraph 117: 

“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).

21.	It seems to me that if one applies that approach to the decision of Immigration Judge Dawson, it is impossible to find any error in his conclusion as expressed in the final paragraph which I have read.  One may criticise his substitution of words such as “essential” or “vital”.  It is usually unhelpful to substitute other terms.  That was perhaps more understandable before the Court of Appeal and the Tribunal had given the guidance in LG.  For my part, I would not want to add anything to what was said in those cases, which Mr Hall accepts as being an accurate statement of the law. But I do not think the differences affect the substance of the decision.

22.	The only other point Mr Hall makes is to refer to a very recent opinion of Advocate General Bot in a case called Tsakouridis v Land Baden-Wurttemburg [2010] Case C-145/09, where the Advocate General considered the concept of imperative grounds.  It is important to note the limited nature of the question which was asked, which was whether such grounds must be understood to include “only considerations connected with the protection of the Member State and its institutions”. For my part, with respect to the Advocate General, I do not find anything there which would require us to qualify in any way the guidance which was given in LG.  It will of course be of interest to see how the court approaches the matter in due course.  If anything I think the opinion helps negatively, in that it confirms in my mind that we did not overlook any material factors when we considered these matters in LG.

23.	So for my part I would dismiss this appeal. 

24.	I will only add one point.  We have been shown an up-to-date assessment of Mr P, and that records that he has continued to work full-time for an Italian restaurant in Bournemouth.  He appears to enjoy the work, and recently his son has commenced work at the same restaurant as a result of Mr P’s influence.  The probation officer says: 

“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.  

25.	That assessment of course is not in any way relevant to the legality of the decision which we are reviewing.  But it confirms in my mind that even if we were to remit the case to another tribunal, it is hard to see any tribunal thinking it proportionate to deport him from an environment in which evidently he is making real efforts to integrate and he is getting proper support, to one where he has no connections and where we have no evidence at all what support would be available to him.

Lady Justice Smith:

26.	I agree.

Lord Justice Laws:

27.	So do I.

Order:  Appeal dismissed.