ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMIN COURT (LANG J)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE TOULSON
LORD JUSTICE AIKENS
| The Queen (oao) Daha Essa
|- and -
|Upper Tribunal (Immigration & Asylum Chamber) & anr
Mr Jonathan Hall (instructed by Treasury Solicitors) for the Respondents
Hearing date : 29 November 2012
Crown Copyright ©
Lord Justice Maurice Kay :
"1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided in its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security."
The procedural history
"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 [the appellant's girlfriend] in this country may have been fragile … 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 … 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."
Although Batista was decided some nine months before the promulgation of the determination of the FTT in the present case, it was not referred to by the tribunal.
"In my view, when [the] authority takes an expulsion decision against a Union citizen following the enforcement of the criminal sanction imposed, it must state precisely in what way that decision does not prejudice the offender's rehabilitation. Such a step, which relates to the individualisation of the sanction of which it is an extension, seems to me to be the only way of upholding the interests of the individual concerned as much as the interests of the Union in general. Even if he is expelled from a Member State and prohibited from returning, when released the offender will be able, as a Union citizen, to exercise his freedom of movement in the other Member States. It is therefore in the general interests that the conditions of his release should be such as to dissuade him from committing crimes and, in any event, not risk pushing him back into offending."
This emphasis on "the general interests" and "the interests of the Union in general" is mediated through the proportionality test which "takes on a special significance which requires the competent authority to take account of factors showing that the decision adopted is such as to prevent the risk of reoffending" (paragraph AG94).
"the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, which as the AG observes in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general."
Thus there is a European dimension which widens consideration beyond the interests of the expelling Member State and those of the foreign criminal.
The judgment of Lang J
"In my judgment, the judgment … in Tsakouridis establishes that the decision-maker, in applying regulation 21 of the EEA Regulations, must consider whether a decision to deport may prejudice the prospects of rehabilitation from offending in the host country, and weigh that risk in the balance when assessing proportionality under regulation 21(5)(a). In most cases, this will necessarily entail a comparison with the prospects of rehabilitation in the receiving country … "
"We note that the issue of proportionality is a major, if not determining, factor both under the Regulations and also under Article 8."
Lord Justice Toulson:
Lord Justice Aikens: