ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE FLOYD
SIR STANLEY BURNTON
| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
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Hugh Southey QC and Glen Hodgetts (instructed by Wilson Solicitors LLP) for AD
Hugh Southey QC and Glen Hodgetts (instructed by South West Law Solicitors) for ME
LW did not appear and was not represented
Hearing dates: 20, 21 January 2015
Crown Copyright ©
Sir Stanley Burnton:
The facts and the decisions below
Whilst in the United Kingdom the appellant amassed a criminal record comprising one offence against [the] person, twelve theft and kindred offences, one offence relating to police, courts, prisons, one drugs offence, 6 firearms and offensive weapons offences. On 8 June 2010 the appellant was convicted of robbery and sentenced to three and a half years' imprisonment concurrent with 2 counts of theft in respect of going equipped to steal.
The appellant because of his drug addiction has throughout his period in the United Kingdom effectively lived on the fringes of society committing regular offences to fuel his drug addiction – and cannot be regarded as having integrated into United Kingdom society in any meaningful way.
"We also emphasise that the existence of a present threat affecting the fundamental interest of society would very substantially diminish if the appellant did not relapse and availed himself of the supportive rehabilitative programmes which will be available. We reiterate that there is no indication that any such rehabilitative program would be available in Lithuania. We accept that Lithuania is an EEA country and that appropriate medical treatment would be available for the appellant in Lithuania. There is, however, no evidence that the Lithuanian authorities would have either the capacity or the interest to put in place the rehabilitative programme referred to in the letter from the appellant's Probation Officer."
31. The negative impact of removal on rehabilitation will of course not always be a decisive factor. We accept that the impact will be greater in the case of integrated EU citizen but we do not accept that it is a factor not to be taken into account when dealing with a person such as the appellant who has been in this country for a number of years and has only limited ties with his country of origin as the panel found. While the Court of Appeal in Essa noted that the ECJ had not adopted the suggestion in the advocate general's opinion that a decision maker should state precisely in what way the decision did not prejudice the offender's rehabilitation no doubt the panel would have been assisted by some material on the matter. We are not satisfied that the panel materially misdirected itself in commenting on the absence of material. It may be that not every panel would have reached the same decision as we have said did have the benefit of hearing from the appellant and assessing the evidence with very great care. The panel did not reach this decision lightly. In the circumstances of this case we are not persuaded it materially misdirected itself. As it noted in paragraph 134 of its decision this is very likely to be the final opportunity of the appellant to demonstrate that he can take the advantage of the opportunity he has been offered.
On 27 October 2009, while he was a voluntary patient at a mental health unit, he started a fire in his room. The sentencing judge noted that he had set a fire in a hospital where he was a voluntary patient and did so at night when other residents were in bed. Fortunately the fire alarms alerted staff. The fire he lit caused considerable damage to the building and the cost of repairing the damage was great and the building had to be evacuated for several weeks. The patients, whose lives were put at risk; in particular those who had to be assisted by the fire service, were taken to hospital for treatment. The judge noted he had put at risk the lives of staff who had to deal with the situation and its consequences and that he had put at risk the fire officers who attended. The sentencing judge went on to say:
"I accept that this was not directed towards any individual apart from yourself and that your purpose was to harm yourself only but the risk to others that you created was huge …. I am satisfied that there is a significant risk of you causing serious harm to others by committing further specified offences in the future and that I must sentence you as a dangerous offender. A life sentence is not appropriate. I am persuaded that an extended sentence is sufficient to ensure that you are under the control of the criminal justice agencies for a significant period of time and that in your case that will be sufficient to protect the public from serious harm."
6. The respondent said at paragraphs 14 and 15:
14. The sentence is a clear indication that the sentencing judge considered that you posed a continuing risk to the public.
15. You have been diagnosed with schizophrenia. You are currently complying with your anti psychotic medication Palideridone Palmitate four weekly depot and 10mg Olanzapine daily and your behaviour is more settled. However it is noted that in the past there have been concerns about your compliance with medication in the community and that this has hampered your progress and stability. Your illness is of a nature to warrant you liable to detention in hospital on the basis of the relapsing nature of the mental illness and the potential risk to others as a result of this. Should you in future discontinue your medications without correct medical supervision it remains likely that you will relapse and the public would be vulnerable to the risk of you reoffending.
7. For the above reasons the respondent decided it was not reasonable to leave the public vulnerable to the risk of him reoffending in the event that he suffered a relapse in his mental state for any reason. Given the nature of the offence he committed and the threat that he posed to society, the respondent considered that even if he had permanent residence as a result of five years' continuous residence in the United Kingdom, the requirement of serious grounds of public policy to be shown to justify the appellant's deportation would have been met.
This appeal has been argued before us on the basis that the appellant is someone who should be allowed to remain in the United Kingdom subject to the requirements of the mental healthcare professionals looking after him and should he do so this would result in a low risk of harm to others. This we have been unable to accept and consequently while the respondent's decision would interfere with his family life in the United Kingdom as described in Diane Jackson's report, his removal is justified on protection grounds. The appellant is currently detained on a notional Section 37 Mental Health Act 1983 order. It has not been argued that he cannot be removed while subject to an order under the Mental Health Act.
14. We now turn to the principal ground where we find an error of law, which is Point 3. It was accepted by Mr Hibbs that neither the Secretary of State nor the panel had considered whether the prospects of the appellant's rehabilitation would be promoted or diminished by his deportation. One suspects that this was because submissions and citation of authority had not been directed to the issue. We sympathise with the panel for failing to consider it in those circumstances. Nevertheless, the decision of the Court of Appeal in R ota of Daha Essa v UT  EWCA 1718, 21 December 2012 at , , and  indicates there is now a duty on the tribunal to consider this issue whether raised in the appeal or not, and an awareness of the duty should have followed the decision of the Court of Justice in C-145/09 Tsakouridis 23 November 2010 at .
15. Whilst we recognise that there may be force in Mr Hibb's submission that the appellant has not availed himself of the opportunity to rehabilitate himself to date, we conclude that it cannot be said that consideration of this issue would make no difference to the outcome:-
i) There was material in both Dr Taylor's principal and supplementary report of 2 October 2012 to the effect that the appellant's family ties, his visits to his children, his contact with his wife and his continuity of treatment in the UK were beneficial to his prospects of remaining symptom free and continuing with his medication.
ii) Ms Jackson makes similar points at paragraphs 5.7 and 5.9 of her report.
iii) His behaviour appears to have been better since his transfer to the Wickham Unit near his family.
iv) The appellant has in addition a brother and a cousin in the UK and claims to have no relatives or family or other ties in the Netherlands.
v) The appellant has remained in the UK for 10 or 11 years now and there is no evidence that he has returned to the Netherlands since his wife and children came to the UK in 2004.
vi) His social links and support systems therefore all appear to be in the UK.
November 2004-April 2005: admitted to hospital having self-harmed and was treated for depression and psychotic symptoms.
September 2006-February 2007: arrested for assault and subsequently detained in hospital pursuant to s.2 Mental Health Act 1983. On 30 December 2006 he set fire to a tee shirt in his bedroom. Discharged on oral anti-psychotic medication.
August 2007 to June 2008: visited Somalia with relatives.
7 July 2008-11 December 2008: detained in mental hospital after having attempted to kill himself. Demonstrated aggressive and dis-inhibited behaviour. Treated with anti-psychotic medication and diagnosis on discharge was psychotic depression with vulnerability for intense emotional instability with a differential diagnosis of paranoid schizophrenia.
18 December 2008-2 June 2009: after a short period back in the community he was re-detained in mental hospital after self-harming and violent and destructive behaviour. 24 December he set fire to a jumper in his room stating he intended to damage hospital property. Diagnosed with paranoid schizophrenia on discharge into the community with community mental health follow up.
June-October 2009: living in the community. He indicated shortly after release that he refused to take his medication. The treating psychiatrist considered that this did not lead him to become mentally unwell but there was evidence of personality problems and considerable family and social difficulties causing him to display behaviour that was consistent with symptoms of paranoid schizophrenia.
October 2009-November 2009: Informal admission to mental hospital where he complained of hearing voices. He was no longer on medication and an opinion was given of personality disorder rather than psychosis. It was during this admission that he set light to his bed with a cigarette lighter. He was found watching two foot flames in his room. The fire service had to rescue two patients from their room who were treated for smoke inhalation. This was the index offence that led to his being charged and transferred to HMP Bristol.
November 2009-8 June 2010: detained at HMP Bristol on remand pending trial and subsequently sentence.
8 June 2010 to 1 October 2010: admitted under sections 47 and 49 Mental Health Act 1983 to Fromeside medium secure hospital. Displayed dis-inhibited sexual behaviour, poor anger control and destroyed property. It was not thought that his behaviour related to psychosis or hallucinations. Diagnosed as severe stress and khat dependency.
14 October 2010-5 July 2011: transferred to HMP Guys March, Shaftsbury, Dorset to continue his sentence. Prison mental health staff concluded his mental condition improved when he took his medication. A consultant forensic psychiatrist recommended transfer back to hospital as he may be suffering from schizophrenia.
6 July 2011-30 May 2012: admitted to Theale Ward an enhanced low secure admission ward at Thornford Park Hospital, Berkshire. Some incidents of violent behaviour, damaging property and dis-inhibited behaviour.
Following a case conference meeting in April and the appellant's expressed wish to move to Bristol nearer his family, he was transferred to Wickham Unit, Bristol, a low secure rehabilitation unit rather than open unit as he presents a significant risk to himself and others and property when his mental state deteriorates.'
30 May 2012 to date: Fairfax Ward, Bristol. Treating clinician diagnoses appellant as consistent with paranoid schizophrenia.
From June 28 2012: granted permission for increase in leave to visit his family to up to four times a week.
10 July 2012: informed of decision to deport. 'Whilst he was visibly upset to receive this information he did (not?) appear unduly angry and all his responses were appropriate. In the weeks following the news he continue(d) to present as settled mentally and was warm and polite on all interactions. He used his unescorted community leave with no issues and has been returning to the ward within curfew limits'.
8 August 2012: returned late and was reported by his family to be chewing khat.
"18. The Appellant has clearly been in the United Kingdom for more than five years. It has been found that he does not meet the 10 year residence requirement necessitating the consideration of imperative grounds. However in our judgement both the time that he has spent in the United Kingdom and the history of his residence here justifies the consideration of rehabilitation as a factor in the proportionality balance when considering removal."
The question of whether the Appellant's continued rehabilitation is best served in the United Kingdom or elsewhere is of course a comparative one. In this respect the evidence already discussed shows that the Appellant is being treated in a rehabilitative environment in the United Kingdom and has been so treated in the same establishment for the last 17 months. We are satisfied that he is making progress. The prospects of rehabilitation in the Netherlands are more difficult to ascertain. Dr Taylor is clear in her view that even if the Dutch authorities offer equivalent medical treatment the Appellant's rehabilitation is more likely to be successful in the UK (28 May 2013 report) because of his established relationship with the mental health team and his family support. Dr Taylor believes that his deportation
"is highly likely to have a significant negative effect on (his) mental health".
Dr Taylor says that in the event of the Appellant's deportation she would, with his permission,
"try and contact local medical services once we know where he is going."
The Respondent has not sought to adduce evidence of the rehabilitative support that would be available to the Appellant in the Netherlands other than to say that the Consulate of the Netherlands advises that he would be able to report to the local authorities to obtain assistance. The mental health care in the Netherlands is said to be of high quality and to be divided into around 50 mental health districts with a comprehensive system of in patient and outpatient mental health services including provision of preventive services. Ms Bretherton adds that the Netherlands is a European country.
28. In our judgment the nature of the rehabilitative treatment that the Appellant would receive in the Netherlands is at best uncertain whereas the rehabilitative treatment that he is receiving in the United Kingdom is known, long term, continuing and progressing. It is the difference between a known and a speculative unknown where what is known appears to be effective.
29. Taking account of all of the above it is our judgment that the prospects of the Appellant's rehabilitation are a matter that needs to be considered in the proportionality balance. Those prospects of not of themselves determinative but as a factor in the balance in the case of this Appellant they weigh very heavily indeed. The reason why they weigh so heavily is that this is an Appellant with no history of offending apart from the index offence but with a long history of mental health issues. The Respondent accepts in the skeleton argument put before us that the Respondent must show that the Appellant has a current propensity to commit crime (paragraph 4). The Respondent also accepts (paragraph 20) that the Appellant's khat use, his failure to accept his schizophrenia and his non compliance are the factors that will combine such as to make him a serious risk. It is therefore only by an examination of his psychiatric rehabilitation that it is possible to view his propensity to re-offend because there is no suggestion, either from the Respondent or otherwise, that any other factors are in play. In our judgement the evidence that is before us shows quite clearly that the Appellant's psychiatric rehabilitation is continuing, progressing and controlled in a secure environment and further that it is being benefited by the proximity and support of close family members. We cannot be satisfied that this rehabilitation would continue were the Appellant to be deported to the Netherlands and further we are satisfied on the unequivocal evidence of Dr Taylor that even if mental health treatment was available to the Appellant his deportation is likely to have a significant detrimental effect on his mental health.
30. Taking into account all of the above it is our judgment that in the particular circumstances of this case the deportation of the Appellant is not a proportionate response within the terms of regulations 21(5) and 21(6) of the Immigration (European Economic area) Regulations 2006. We therefore remake the decision of the First-tier Tribunal and allow this appeal.
13. I accordingly set aside the determination of the Panel although their findings relating to the appellant's family members in the United Kingdom, the extent of his relationship with those family members, the acceptance that he has been in the United Kingdom for some periods since 2006, the statement from Mayday Employment Limited that he was working for them between August 2009 and 17th September 2010, the nature of his convictions, and paragraph 39 of the determination but excluding the conclusion of the Panel that he remains a risk to the public in the form of violence and the final sentence.
8. The appellant's personal conduct is demonstrated by his convictions. The offence of robbery is said to have involved the appellant and a friend spotting their victim walking home at about 11.30 one evening. The victim and kicked to the floor and robbed of his wallet and house keys. On 10th September 2011 in the early hours of the morning the appellant spotted another victim walking through the park who he attacked and robbed of his mobile telephone and watch. The attack was so violent the victim lost consciousness.
9. The appellant is subject to the minimum level of MAPPA supervision as a result of the offence. MAPPA arrangements aim to reduce the effect on society of convicted offenders of a violent or sexual nature. The NOMS 1 assessment assessed the appellant as presenting a medium risk of harm to the public, especially men walking late at night and pedestrians. The appellant's offender manager noted in the NOMS report that alcohol is a concerning aspect of his lifestyle given his self disclosure that he looses his temper easily when he has been drinking and acts of violence in the past. The sentencing judge, when addressing the appellant, stated "The public, primarily, need protection from the likes of you."
12. Alcohol is not the only factor in the appellants offending but has been identified as a contributing factor. I make this observation as the offence of driving without due care and attention has no alcohol related element. On this occasion the appellant was driving to fast. He was forced to swerve to avoid an oncoming car as a result which he mounted the pavement and knocked down a pedestrian who later died. He was originally charged with causing death by dangerous driving but the CPS discounted the charge and proceeded with the due care and attention charge only. Similarly there is no evidence that alcohol was a contributing factor to his failure to surrender, shoplifting or fraudulent use of a vehicle excise licence although the respondent did not seek to deport him for these offences.
13. Where alcohol has been identified as a contributory factor is in relation to the two robbery offences. It is recorded in the NOMS 1 report:
"Mr Wozniak does not consider alcohol to be a problematic area. He said that he does not go out very often and rarely drinks estimating this to be monthly or fortnightly or for special occasions such as birthdays. However, he admits that he was very drunk on the night of both of the offences and had been drinking vodka. He said that he looses his temper more easily when he has been drinking and often forgets what he has done. He said he has got into fights in the past but this is rarely in public and usually occurs with his brother and friends.
Since being in custody Mr Wozniak has not completed and work around alcohol misuse and this therefore remains an address that requires intervention. Alcohol misuse is linked to both the risk of harm and offending behaviour.
14. As stated above there is evidence that work has since been undertaken in relation to alcohol awareness and the evidence of the appellant and his friends is that he has not drunk alcohol for a considerable period of time. I note however paragraph 9 of Miss Manning's skeleton argument that if returned to Poland there is a risk of alcohol misuse and therefore criminal behaviour. If this is the case this must be an indication that if placed in a position of stress or away from his current arrangements and friends of influence there is a real risk he will drink again with the resulting risk to members of the public. I find if this is the case the risk identified by the author of the report and the sentencing judges comment about the need to protect the public from the appellant justifies his deportation; as there must be a real risk of conduct representing a genuine present and sufficiently serious threat to a fundamental interests of society which of a crime of violence, if he drinks again. I also note there is little evidence of professional work being undertaken to address his general propensity to offend, albeit at a petty level to date bar the robbery and driving resulting in the death if a pedestrian.
19. There is evidence of attempts at rehabilitation by voluntarily not using alcohol. This evidence was not discredited by Mr Smart in cross examination. If such work continues with the support of family and the friends who attended court and have provided written statements, the prospects for the appellant not reoffending as a result of alcohol related issues must be positive. He has had the support of the probation services in the UK and I accept Mr Smart's argument that there is a probation service in Poland with facilities to assist the appellant if the same are required on return. The key element to the success of his rehabilitation appears not to be the intention of professionals but rather the integration into the peer, family, and friendship group in the UK. It was submitted there is no family or such group in Poland although this does not mean past friendships could not be established as he lived in Poland from 1984 to 2005 or that there will be no family help, albeit the submissions made are of no family, friends or work prospects. In relation to this latter element I do not find it proved that he will be unable to secure work as the Polish economy is improving and the appellant has shown a willingness to undertake work if available in the UK.
20. I find this case falls within the class of those who at the time of this determination are or remain a present threat to public policy but where the factors relevant to integration suggest that there are reasonable prospects of rehabilitation. Such prospects are a substantial relevant factor in the proportionality balance as to whether deportation is justified. It is clear this appellant is well advanced in rehabilitation and that there is a substantial degree of integration. I have considered the issue of whether future protective factors are in place to ensure that the rehabilitation remains durable and find on the evidence that the appellants intention to remain in Banbury, where those assisting him reside, and his intention to avoid further offending in the future indicate that it should be a durable solution.
21. On the facts of this case I find it disproportionate to proceed to deportation when considering the regulation 21 facts with particular reference to regulation 21 (5) (a) and (6). The future is up to the appellant. If he reoffends his claim to have rehabilitated will be shown to be false and his deportation to Poland may then succeed. If he wished to remain in the UK he must continue to abstain from alcohol and steroids or any other substance which may result in aggression and loss of control, behave as a model citizen, and drive with the degree of care expected from any road user.
The provisions of the Directive and the Regulations
23. Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.
24. Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life...
(1) Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
(2) Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
Protection against expulsion
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 on 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.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member Stated, if they;
(a) have resided in the host Member State for the previous ten years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.
Exclusion and removal from the United Kingdom
This sectionnoteType=Explanatory Memorandum has no associated
19.—(1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21.
(2) A person is not entitled to be admitted to the United Kingdom as the family member of an EEA national under regulation 11(2) unless, at the time of his arrival—
(a) he is accompanying the EEA national or joining him in the United Kingdom; and
(b) the EEA national has a right to reside in the United Kingdom under these Regulations.
(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if—
(a) he does not have or ceases to have a right to reside under these Regulations; or
(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
(4) A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.
(5) A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
Decisions taken on public policy, public security and public health grounds
This sectionnoteType=Explanatory Memorandum has no associated
21.—(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(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; or
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(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.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.
(7) In the case of a relevant decision taken on grounds of public health—
(a) a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease to which section 38 of the Public Health (Control of Disease) Act 1984 applies (detention in hospital of a person with a notifiable disease) shall not constitute grounds for the decision; and
(b) if the person concerned is in the United Kingdom, diseases occurring after the three month period beginning on the date on which he arrived in the United Kingdom shall not constitute grounds for the decision.
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 the tribunal to consider whether they have any materiality in the present case.
AG48. The idea, mooted since ancient times by theologians, philosophers and theorists, that a criminal sanction must contribute to the rehabilitation of the convicted person, is nowadays a principle which is shared and confirmed by all modern legal systems, including those of the Member States. Also, in 2006, the Council of Ministers adopted a recommendation on the European Prison Rules which provides that "detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty". The International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly and signed in New York on December 16, 1966, also provides, in art. 10(3), that "[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation".
AG49. The European Court of Human Rights has also held that:
"[o]ne of the essential functions of a prison sentence is to protect society, for example by preventing a criminal from re-offending and thus causing further harm. At the same time, the Court recognises the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment. From that perspective it acknowledges the merit of measures - such as temporary release - permitting the social reintegration of prisoners. "
AG94. In the present case, which concerns an expulsion decision applicable on the expiry of the criminal sanction imposed, I consider that the proportionality test 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 re-offending.
AG95. In my view, when that authority takes an expulsion decision against a Union citizen following the enforcement of 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 interest 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 interest 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.
49. Consequently, an expulsion measure must be based on an individual examination of the specific case ...see, inter alia, Metock  3 C.M.L.R.39 at ), and can be justified on imperative grounds of public security within the meaning of art.28(3) of Directive 2004/38 only if, having regard to the exceptional seriousness of the threat, such a measure is necessary for the protection of the interests it aims to secure, provided that that objective cannot be attained by less strict means, having regard to the length of residence of the Union citizen in the host Member State and in particular to the serious negative consequences such a measure may have for Union citizens who have become genuinely integrated into the host Member State.
50. In the application of Directive 2004/38, a balance must be struck more particularly between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned, assessed if necessary at the time when the expulsion decision is to be made (see, inter alia, Orfanopoulos v Land Baden-Württemberg (C-482/01 & C- 493/01)  ECR I-5257;  1 C.M.L.R.18 at -), by reference in particular to the possible penalties and the sentences imposed, the degree of involvement in the criminal activity, and, if appropriate, the risk of reoffending (see, to that effect, inter alia, R. v Bouchereau (30/77)  ECR 1999;  2 CMLR 800 at ), on the one hand, the risk of compromising the social rehabilitation of the Union citizen on the State in which he has become genuinely integrated, which, as the A.G. observers in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general.
16. Finally, there is one matter upon which Mr Hall made submissions which I consider to be well-founded. The Advocate General, in the passage which I set out in paragraph 8, above, opined that it is incumbent upon a primary decision-maker who makes an expulsion decision "to state precisely in what way that decision does not prejudice the offender's rehabilitation". Although the CJEU expressly adopted part of paragraph AG95 in its judgment, I do not think that it adopted that part. In my respectful opinion it is overprescriptive. The comparative exercise envisaged by Lang J as the usual corollary of Tsakouridis may well be achieved without such a straitjacket.
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 …
77. There is little or no evidence of integration by reason of strong family ties with his father or that side of his family or with a partner. The strength of his connection with his maternal aunt or her ability to promote his rehabilitation is contentious and has not been proven.
78. Nothing has emerged since the panel's decision to throw doubt on their conclusion that the claimant presented an unacceptable risk of re-offending; and that his presence is a genuine and sufficiently serious threat on one of the fundamental interests of society apart from the mere fact of his conviction.
79. The criteria for making a decision to deport in accordance with the EEA Regulations are thus met. Having regard to his age, state of health, family, economic considerations, length of UK residence, and degree of social and cultural integration, an exclusion decision taking affect as if it were a deportation order would be proportionate. We accept that his present links with Portugal do not appear to be strong apart from his nationality and ability to speak the language but that single factor does not suffice to outweigh other ones.
80. His future prospects of rehabilitation are uncertain and whatever they are cannot be a weighty factor in the balance given the absence of integration and a right of permanent residence.
23. As we observed in our ruling and directions the Court of Justice in Tsakouridis used the term 'genuinely integrated' to describe those for whom the prospects of rehabilitation were a relevant issue in the assessment of the balance.
24. Tsakouridis was a case where the Court examined the issue of imperative grounds relating to those who had resided in the host state for ten years or more. The Court of Appeal in the instant case did not elaborate on whether the principles apply generally or only to those who had permanent rights of residence. As the case below was determined on the basis of an assumption that the appellant had rights of permanent residence, we conclude that the Court of Appeal did not consider that only those with ten years residence could benefit from the principle.
25. In our directions for remaking, we invited the parties to consider the matter and suggested that the test was genuine integration rather than the precise number of years of residence. Mr Allan's skeleton argument disputed that proposition and suggested that genuine integration was not a novel test but only shorthand for the structured approach based on length of residence.
26. We agree that the Court's reference to genuine integration must be directed at qualified persons and their family members who have resided in the host state as such for five years or more. People who have just arrived in the host state, have not yet become qualified persons, or have not been a qualified person for five years, can always be removed for non-exercise of free movement rights irrespective of public good grounds to curtail free movement rights. If their presence during this time makes them a present threat to public policy it would be inconsistent with the purposes of the Directive to weigh in the balance against deportation their future prospects of rehabilitation.
44. It is clear from the first part of paragraph 19 that the Upper Tribunal took into account SE's good progress to date in rehabilitation. The tribunal treated that as a factor in SE's favour.
45. The last sentence of paragraph 19 is directed to the effect of Essa (EEA: Rehabilitation/Integration)  UKUT 316 (IAC). This was a decision concerning EU citizens who committed offences and were being considered for deportation. Blake J observed at paragraph 37 that it was in the interests of the citizen, the host state and the Union itself that the offender should cease to offend. Accordingly, if the offender's rehabilitation is incomplete, it is relevant to consider the offender's prospects of future rehabilitation (a) if he is deported to his home state and (b) if he remains in the host state.
46. I agree with that analysis. The European Union has a collective interest in promoting the rehabilitation of all EU citizens who have lapsed into crime.
47. What the Upper Tribunal was saying in the last sentence of paragraph 19 of its decision in the present case was that that analysis does not apply here, because SE is not an EEA national. I agree with that proposition.
48. SE is a violent offender, who has made good progress towards rehabilitation. At the time of sentence, his risk of re-offending was assessed as high. That risk is now assessed as medium. It is reasonable to suppose that if SE is deported to Zimbabwe, he will not receive the same level of support and assistance in continuing his rehabilitation process. However, it is also right to note that there was no evidence about this because the issue was not raised; the observation of the Upper Tribunal on the point was really in the nature of an aside.
49. From that point of view, it may be thought that it is desirable for SE to remain in the UK, so that he can access the services of probation officers and other professionals. On the other hand, in the general run of cases, I do not think that this is a valid consideration under article 8 of ECHR. The prospective deportee cannot say:
"I am a criminal. I am only part way through the process of rehabilitation. If I remain in the UK, I will probably become reformed with the help of probation officers and other professional staff. If deported to my home country, I am likely to return to my criminal ways. Therefore I should stay here."
50. In my view, absent exceptional circumstances, this is not a valid argument. The offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life.
My conclusions in these appeals
Lord Justice Floyd
Lord Justice Jackson