COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL
IMMIGRATION JUDGE MUNONYEDI & MR P BOMPAS
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LADY JUSTICE BLACK
| VALENTIN BATISTA
|- and -
|SECRETARY OF STATE FOR THE HOME DEPT
Alan Payne (instructed by Treasury Solicitor) for the Respondent
Hearing date : Tuesday 20th July, 2010
Crown Copyright ©
LORD JUSTICE CARNWATH :
"in addition to what you did you have a very bad record for one so young. You have served 2 sentences for robbery... in my judgment there are high level aggravating features here... the force you used against the victim. The fact that the victim was injured and the traumatic offence on the victim and in my judgment in excess of that generally associated with standard burglaries...
This is the second offence of burglary and in my judgment when one considers the totality of your record you are clearly a serious danger to the public..."
"In our view there are many serious challenges and pressures that will be placed upon the relationship which if they are not dealt with appropriately may cause it to collapse. A breakdown in the relationship in our view will greatly increase the appellant's vulnerability and will be another reason to force him to turn to alcohol and drugs and ultimately crime." (para 24)
i) The tribunal failed to determine whether the appellant had a right of permanent residence pursuant to Article 16 of the Citizen's Directive 2004/58/EC;
ii) Having disregarded the fact that the appellant had a right of permanent residence in the UK, they failed to determine whether expulsion was justified on "serious grounds of public policy or public security";
iii) The tribunal erred in holding that periods of imprisonment did not count as residence for the purposes of acquiring 10 years of continuous residence (once a right of permanent residence had been established)
iv) The tribunal applied the wrong legal test to the question of whether there was disproportionate interference with family life pursuant to Article 8
The Citizens' Directive
"... the 2006 Regulations have introduced a new hierarchy of levels of protection, based on criteria of increasing stringency:
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 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..."
"(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—
(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 concerned 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."
"It is our view that the appellant's past and present behaviour represent a genuine present and sufficiently serious threat to the general public. The public and society at large are entitled to be protected from the harm that could be caused by his criminal activities." (para 35)
Mr Bedford makes the point that the language of the first sentence reflects that of regulation 21(5)(c) (see above), which applies even to the lowest level of protection. That shows, he submits, that the tribunal did not appreciate that for the second level of protection a more stringent test was applicable.
"Miss Deane stated that she loved the appellant very much but was not prepared to go to Portugal with him. Her life was in the United Kingdom where she had lived most of her life. She was in employment and had her own accommodation. Her mother with whom she is very close lives very close to her. She wants her son to grow up knowing his father." (para 18)
"It is our view that the effect of the respondent's decision does not fundamentally prevent the appellant and Miss Deane from enjoying family life. Eight out of the 12 years of their relationship has seen the appellant in custody. The decision means that family life can be expected to be enjoyed elsewhere, that is Portugal and does not prejudice the family life of the appellant in a manner sufficiently serious to amount to a breach of article 8. Miss Deane is young and in our view if she chooses to will be able to adapt to life in Portugal. She is fluent in English and her clerical skills can be put to good use in Portugal. She is a Jamaican national with indefinite leave to remain and not an EEA national. There may well be a degree of hardship in the beginning but there are not insurmountable obstacles to Miss Deane, the appellant and their son living in Portugal." (para 43)
"Thus the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case. The authority will, of course, take note of factors which have, or have not, weighed with the Strasbourg court. It will, for example, recognise that it will rarely be proportionate to uphold an order for removal of a spouse if there is a close and genuine bond with the other spouse and that spouse cannot reasonably be expected to follow the removed spouse to the country of removal, or if the effect of the order is to sever a genuine and subsisting relationship between parent and child. But cases will not ordinarily raise such stark choices, and there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires." (emphasis added)
"While it is of course possible that the facts of any one case may disclose an insurmountable obstacle to removal, the inquiry into proportionality is not a search for such an obstacle and does not end with its elimination. It is a balanced judgment of what can reasonably be expected in the light of all the material facts." (para 19)
"EB (Kosovo) now confirms that the material question in gauging the proportionality of a removal or deportation which will or may break up a family unless the family itself decamps is not whether there is an insuperable obstacle to this happening but whether it is reasonable to expect the family to leave with the appellant. It is to be hoped that reliance on what was a misreading of Mahmood … will now cease." (para 24)
Later, in commenting on the conclusion of the tribunal on the facts of VW, he said:
"There are several problems with this conclusion. One is that, as this court pointed out in AB (Jamaica)  EWCA Civ 1302 the impact of one partner's removal on his or her family life has to be looked at in the round. It is therefore only if it can properly be said that the appellant's partner either will go to Uganda with her or will be behaving unreasonably if he chooses not to that the tribunal can avoid judging the overall proportionality of an enforced family break-up…" (para 32)
"27. It must also be borne in mind, of course, that even if the difficulties do make it unreasonable to expect family members to join the applicant in the country to which he is to be deported, that will not necessarily be a decisive feature in the overall assessment of proportionality. It is plainly an important consideration but it may not be determinative, since it is possible in a case of sufficiently serious offending that the factors in favour of deportation will be strong enough to render deportation proportionate even if does have the effect of severing established family relationships.
29. … The maintenance of effective immigration control is an important matter, but the protection of society against serious crime is even more important and can properly be given correspondingly greater weight in the balancing exercise. Thus I think it perfectly possible in principle for a given set of considerations of family life and/or private life to be sufficiently weighty to render expulsion disproportionate in an ordinary removal case, yet insufficient to render expulsion disproportionate in a deportation case because of the additional weight to be given to the criminal offending on which the deportation decision was based. I stress 'in principle', because the actual weight to be placed on the criminal offending must of course depend on the seriousness of the offences and the other circumstances of the case." (paras 27, 29)
LADY JUSTICE BLACK :
LORD JUSTICE MAURICE KAY :