Neutral Citation Number: [2010] EWCA Civ 896
Case No: C5/2009/1202
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL
IMMIGRATION JUDGE MUNONYEDI & MR P BOMPAS
IA/17955/2008
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/07/2010
Before :

LORD JUSTICE MAURICE KAY
LORD JUSTICE CARNWATH
and
LADY JUSTICE BLACK
- - - - - - - - - - - - - - - - - - - - -
Between :

	VALENTIN BATISTA	Appellant	
	- and -		
	SECRETARY OF STATE FOR THE HOME DEPT	Respondent	

- - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - -

Becket Bedford (instructed by Messrs. Sutovic & Hartigan) for the Appellant
Alan Payne (instructed by Treasury Solicitor) for the Respondent

Hearing date : Tuesday 20th July, 2010
- - - - - - - - - - - - - - - - - - - - -
Judgment

LORD JUSTICE CARNWATH :  
Introduction
1.	This is an appeal against a decision of the AIT upholding a deportation order made by the Secretary of State.
2.	The appellant is a Portuguese national, born in Guinea Bissau in 1981. He moved to Portugal at the age of 8, when his parents separated, and then in 1994, when his mother became ill, he came to this country to live with an aunt and uncle. From 1998 he received a number of criminal convictions, culminating in a sentence of 4 years 3 months in 1999 for robbery and burglary, and 8 years for burglary and GBH in 2005. In 2002 he began living with his girlfriend, Tamara Deane, and had a child by her in June 2005. 
3.	The AIT recorded the appellant’s evidence as to circumstances of the last offences. Under the influence of alcohol and cannabis, he broke into a flat, in which he found two people were sleeping, one wearing a bracelet. As he was trying to remove the bracelet, the owner woke up, and a fight followed. In the course of it the appellant smashed two bottles of wine over the head of the victim, causing serious injury. The sentencing judge described it as “truly a terrifying incident” and commented:
“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...”
4.	On 21st October 2008, the Secretary of State notified the appellant that he was to be deported. On 21st January 2009, the AIT (IJ Munonyedi and Mr Bompas) rejected his appeal. 
5.	They recorded the therapy sessions he had taken in prison over 18 months and accepted that he was “remorseful about his past offending and particularly in respect of his last offence”; and they acknowledged that since imprisonment for the last offence, the appellant had made “real progress” (para 20). However, they found “very compelling and persuasive” the conclusions of the Parole Board, who had refused his application for parole in August 2008, following an actuarial risk assessment indicating a “medium risk” of reoffending posing a “medium risk of serious harm to the public” (para 20-1). In particular the Board had expressed their concern at the serious nature of the last offence, the escalating use of violence by the appellant, and the lack of plans for employment or training, and had concluded that the risk of reoffending was “too high”. On that basis the tribunal themselves considered that there was “a very high risk” that he would re-offend and that he posed “a real and serious risk to the general public” (para 24). In their later conclusions, they attributed the view that he posed a “very high risk” to the “the probation service” (although a finding in those terms by that body was not mentioned earlier), and said that they had seen no evidence to contradict it (para 35).
6.	As part of their consideration of the risk of reoffending, they noted his intention to live with his girlfriend and son after release, but they accepted the probation service’s view that he had not fully appreciated the difficulties he would face in renewing the relationship after several years, with the added tensions arising from the presence of a young son and without any definite plans for employment. They said:
“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)
The appeal
7.	The grounds of appeal to this court are four:
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
8.	The first three grounds raise issues under the Citizens’ Directive, given effect in this country by the Immigration (EEA) Regulations 2006. The provisions have been examined by this court in LG(Italy) [2008] EWCA Civ 190 and HR(Portugal) v Secretary of State [2009] EWCA Civ 371, and by the AIT in LG and CC (Italy) v Secretary of State [2009] UKAIT 0024 (in which I presided). I did not understand either party to question the law as there stated, at least so far as the domestic courts are concerned. It is unnecessary therefore to repeat the detail.  
9.	It is sufficient to recall that the Regulations (particularly regulation 21) provide for a hierarchy of levels of protection in relation to decisions to remove EEA citizens on grounds of public policy or public security. As I explained in LG(Italy) in the Court of Appeal (at para 14-15): 
“... 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...”
10.	It is also important to note that, under all three levels of protection, certain general criteria must be met (reg 21(5)):
“(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.”
11.	The third ground of appeal is related to the highest level of protection based on ten years’ residence, and depends on the appellant’s time in prison being included in that period. In LG and CC in the AIT we held, in light of HR(Portugal), that “time in prison does not count towards the acquisition of the high level of protection, even for someone who has a right of permanent residence” (para 76). Mr Bedford realistically did not challenge that conclusion before us, although he invited us (if he failed on the other grounds) to refer the issue to the European Court. On this basis the third ground of appeal must be dismissed. 
12.	The first two grounds of appeal are concerned with the appellant’s claim to the second level of protection, for those with permanent rights of citizenship. Such a permanent right is acquired after “residence in the United Kingdom in accordance with these regulations for a continuous period of five years” (reg 15(1)(a)) and is lost only through absence for “a period exceeding two consecutive years” (reg 15(2)). It is now settled law (following HR(Portugal)) that time in prison does not count towards residence for these purposes.
13.	Mr Bedford submits that the AIT failed to make a finding that the appellant had acquired a right to permanent residence, and in consequence failed to apply the correct test.
14.	I agree that the AIT’s treatment of this issue (para 27) leaves something to be desired. They referred to the relevant regulation, but omitted the word “continuous”. They commented that he had been present in the United Kingdom for 14 years, of which 7-8 had been spent in custody, and that he had not been absent for a period exceeding two years. The implication appears to be that they considered that he had fulfilled the five year requirement, although they did not find in terms that he had acquired a right of permanent residence. In any event, Mr Payne, for the Secretary of State, is content to proceed on the basis that they intended so to hold. He does not take the point that they seem to have ignored the word “continuous”, or that the first five year period seems to have been interrupted by a short period in prison. 
15.	More significant is the tribunal’s failure to refer in terms to the need for the deportation decision to be taken on “serious grounds of public policy or public security” (reg 21(3)). Although they quoted this provision, when setting out the relevant law (para 30), in their conclusions they said simply:
“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. 
16.	It is unfortunate that the tribunal did not address in terms the statutory test for the second level of protection. There is also some force in Mr Bedford’s complaint as to confusion in their reasoning on this point. Although at two points in the decision they expressed the view that there was a “very high risk” of reoffending, it is not entirely clear how this is related to various strands of evidence (see para 5 above). However, taken on their own, I would not have regarded these criticisms as justifying setting aside the decision. 
17.	Looking at the decision overall, it can be said that the tribunal adopted a suitably stringent approach, even allowing for the uncertainties in some of their reasoning. In finding that the conduct was “sufficiently” serious one can fairly understand them as having had in mind not only the general test, but also the degree of seriousness required under the second level of protection, which they had mentioned in terms. On any view, the tribunal were entitled to conclude that the appellant’s record, taken with the more recent evidence, showed a propensity to renewed violence such as to satisfy this test.
Proportionality
18.	The other main issue concerns the effect of removal on the appellant’s relationship with his girlfriend, Miss Deane, and their child. Under regulation 21(5)(a), taken with article 8 of the Human Rights Convention, it was necessary to consider whether there would be interference with their private and family life, and if so whether that interference would be “proportionate” having regard to the purpose of deportation. (The decision mentions, but gives no further information about, a child of the appellant by a previous relationship. That relationship does not, as I understand it, materially affect the issues before us.)
19.	According to her evidence before the tribunal, Miss Deane was 26 at the time of the hearing. She had been born in Jamaica but had come to this country at the age of 8, and had indefinite leave to remain. She had started her relationship with the appellant in 1996, and they had begun living together in 2002. Their child was born in June 2005 while he was in prison. 
20.	The tribunal recorded her evidence that she had observed “a real change” in the appellant, who had been “devastated” that his mother had died and his son had been born while he was still in prison; and that, taken with his therapeutic courses, these factors had “forced him to confront his offending behaviour and made him realise that there is another way” (para 18). The tribunal described her as “a devoted mother and loyal girlfriend who has stood by the appellant in difficult circumstances” (para 19). As to the question of moving to Portugal they recorded: 
“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) 
21.	The tribunal held that removal would not offend article 8. They cited Mahmood v Secretary of State [2001] Imm AR 229, in which this court held that removal of one family member to his country of origin would not infringe article 8 if there are “no insurmountable obstacles” to the other members also living there. The tribunal commented:
“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)   
22.	In the light of more recent authority, it is clear that the tribunal’s reliance on the “insurmountable obstacles” test is open to challenge. This emerges most clearly from VW (Uganda) v Secretary of State [2009] EWCA Civ 5. The court cited in particular the guidance of the House of Lords in EB(Kosovo) v Secretary of State [2008] UKHL 41, where Lord Bingham said (para 12):
“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)
23.	Commenting on this passage, Sedley LJ said that it had “laid to rest” the “troubling” issues arising from Mahmoud in relation to the “insurmountable obstacles” test:
“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) [2007] 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) 
24.	More recently still, Richards LJ reviewed apparently conflicting guidance from a number of European and domestic authorities in JO (Uganda) v SSHD [2010] EWCA Civ 10. He noted that what matters is the substance of the consideration, rather than the language used. He also indicated that the emphasis may be somewhat different where what is in issue is removal for the purpose of public protection, as opposed to immigration control:
“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)
25.	Turning to the present case, it is clear in my view that the tribunal has failed to give proper consideration to the position of Miss Deane and the child. They concentrated on the question whether there were “insurmountable obstacles” to them moving to Portugal, rather than asking whether they would in fact do so and whether it was reasonable for them to be expected to do so. I leave aside the question whether, not being an EU citizen, she would have been able to obtain leave to settle in Portugal, since it does not appear to have been raised as a problem before the tribunal, and will not be an issue in the future. (We understand that since the tribunal hearing she has in fact acquired British citizenship.) More important is her own evidence that, in spite of her feelings for the appellant, she was not willing to move to Portugal because of her well-established links here. There is nothing to indicate that the tribunal disbelieved that stance or regarded it as unreasonable. 
26.	In those circumstances, they were wrong to proceed on the basis that “family life can be expected to be enjoyed elsewhere, that is Portugal” (para 43). They had to face up to the fact that the likely consequence of deportation of the appellant would mean that the family would be separated. They needed to consider the “overall consequences of an enforced family break-up” for the whole family, including particularly the mother and child. They were of course entitled also to consider on the other side their view of the relative weakness of the relationship after the enforced separation of the appellant and his family for much of the time, and of the challenges which it would face in the future. Also, as Richards LJ emphasised, where the issue is deportation for the protection of the public, family considerations may carry less weight in the overall balance. 
27.	I would add a further possible consideration, although it was not an aspect explored in any detail before us. Even in respect of those deemed sufficiently dangerous to justify deportation under the EEA rules, common sense would suggest a degree of shared interest between the EEA countries in helping progress towards a better form of life. The prospects offered by the relationship with Miss Deane in this country may have been fragile, as the tribunal thought, but in Portugal they would be practically non-existent. Although he has siblings in that country, there seems to have been no evidence that they would be able or willing to offer the support needed to prevent what the tribunal saw as his likely drift back to crime. There may be room for argument as to the relevance of such points under the Directive, but as at present advised I see no reason in principle why they may not be taken into account in the overall balance of proportionality. It will be a matter for tribunal to consider whether they have any materiality in the present case. 
28.	In conclusion, I would uphold the fourth ground of appeal. The appellant and his family were entitled to have their case considered in accordance with the law as now understood. I cannot altogether discount the possibility that, applying the right approach, the tribunal would have arrived at a different conclusion. For these reasons, I would allow the appeal and remit the case to what is now the Upper Tribunal for reconsideration. 
29.	As a postscript, I note that this case came to us in anonymised form (“VB (Portugal)”). This seems to reflect the practice in many similar cases. However, as Mr Bedford readily conceded, in an ordinary deportation case of this kind, particularly as the criminal background of the appellant has been fully in the public domain, there is no justification or need for anonymisation. Accordingly, the title page of this judgment records his full name.  
LADY JUSTICE BLACK :
30.	I agree.
LORD JUSTICE MAURICE KAY :
31.	I also agree.