England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UT Judges Jordan and Pitt

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/02/2018

Lord Justice Singh :

Introduction

1. This case has a long and somewhat complicated procedural history. However, for reasons that will become apparent, the ultimate issue which this Court now has to decide on this appeal has become a narrow one.
2. This is an appeal by the Secretary of State against the decision of the Upper Tribunal (Immigration and Asylum Chamber) ("UT") dated 23 August 2013. By that decision the UT allowed an appeal by the present Respondent against the decision of the First-tier Tribunal ("FTT") promulgated on 7 December 2012. The FTT had dismissed her appeal against the Secretary of State's decision dated 29 August 2012 to refuse to revoke a deportation order in force against the Respondent.
3. This appeal was stayed by order of Sales LJ pending the determination of two cases which had been the subject of references to the Court of Justice of the European Union ("CJEU"), in Case C-165/14 Rendón Marin v Administración del Estado [2017] QB 495 and Case C-304/14 Secretary of State for the Home Department v CS [2017] QB 558. Judgment was given in those two cases by the CJEU on 13 September 2016. It was decided by the CJEU that the principle which it had laid down in its earlier decision in Case C-34/09 Ruiz Zambrano v Office National de l'Emploi [2012] QB 265 was not absolute and in principle permits of exceptions.
4. Originally the Secretary of State sought to advance three grounds of appeal before this Court. The first two grounds are closely related to each other. It is accepted that the second ground does not contain anything of substance which is materially different from the first ground. Furthermore, the third ground of appeal was in the alternative to the first two grounds. The Secretary of State no longer pursues the third ground of appeal.
5. For her part the Respondent now concedes that, in the light of the recent judgments of the CJEU, there were errors of law made by the UT in the present case. In particular she accepts that the UT was wrong in law to regard the principle in Zambrano as being an absolute one. However, the Respondent submits that those errors of law were not material and so invites this Court to dismiss the Secretary of State's appeal despite those errors.
6. In response the Secretary of State submits that the test for materiality is a relatively low one. She submits that it cannot be said that the UT decision would inevitably have been the same even without the errors of law which it is now conceded were made. Accordingly, the Secretary of State submits that this case should be remitted to the UT for redetermination, after considering any further evidence that may be necessary.

Factual Background

7. The Respondent is a national of Jamaica, who was born on 13 March 1975.
8. She first entered the United Kingdom ("UK") on 2 August 2002 and was granted leave to enter as a visitor until 23 August 2002. She applied for leave to remain and this was extended until 2 February 2003.
9. On 30 January 2003 she applied for leave to remain as a student. This was granted until 28 February 2004.
10. On 11 November 2003 she married Marlon MacPherson, who was a person present and settled in the UK.
11. On 24 February 2004 she applied for leave to remain as the spouse of a person present and settled in the UK. She was granted leave until 2 March 2006.
12. On 28 February 2006 she applied for indefinite leave to remain and this was granted on 22 March 2006.
13. The Respondent committed a serious criminal offence, of supplying a Class A drug (cocaine). She was convicted of this at the Crown Court at Wood Green on 5 October 2006. On the same day she was given a sentence of imprisonment of 2 years and 6 months.
14. The Secretary of State then decided to take deportation action against the Respondent. A deportation order was signed on 20 November 2007. That process went through many stages, including appeals and applications for judicial review. Eventually on 20 February 2012 the Respondent submitted an application for leave to remain outside the Immigration Rules. This was treated by the Secretary of State as an application to revoke her deportation order. On 29 August 2012 the Secretary of State refused the application.
15. In the meantime, on 29 December 2008, the Respondent had given birth to a boy, whom I will call D.
16. The Respondent's appeal against the Secretary of State's decision was dismissed by FTT Judge Mitchell in a decision promulgated on 7 December 2012.
17. The appeal to the UT (which comprised UT Judges Jordan and Pitt) was allowed on 23 August 2013. The UT found that there had been errors of law in the FTT's determination and so that determination should be set aside. The UT then remade the decision and allowed the Respondent's appeal against the Secretary of State.
18. On 2 October 2014 the Secretary of State lodged the present appeal with the Court. On 19 January 2015 a stay was granted on the papers by Sales LJ.
19. The Advocate General's joint opinion in Rendón Marin (which was a reference by a Spanish Tribunal) and CS (which was a reference by the UT in this country) was given on 4 February 2016. The judgments of the CJEU in the two cases were handed down on 13 September 2016.

The legal background

20. Article 20 of the Treaty on the Functioning of the European Union ("TFEU") provides:

"1. Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.

2. Citizens of the Union shall enjoy the rights and be subject to the duties provided for in the Treaties. They shall have, inter alia:

(a) the right to move and reside freely within the territory of the Member States;

…

These rights shall be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder."

21. Article 21 of the TFEU provides:

"1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.

…"

22. On 29 April 2004 the European Parliament and the Council of the EU adopted the Directive on the right of citizens of the Union and their family members to move and reside freely within the territory of member states: Directive 2004/38/EC ("the Directive"). That Directive replaced earlier legislation, in particular Directive 64/221/EEC. It is unnecessary for present purposes to set out the specific provisions of the Directive, save for two, on which there was some argument before this Court: Articles 27 and 28.
23. Article 27 provides:

"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.

…"

24. Article 28 provides:

"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 States, 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."

25. The Directive was implemented in domestic law by the Immigration (European Economic Area) Regulations 2006 (SI 2006 No. 1003) ("the 2006 Regulations"). Those Regulations subsequently had to be amended in order to give effect to the judgment of the CJEU in Zambrano. References to the 2006 Regulations in this judgment are references to the version that was in force at the material time. Those Regulations were further amended to take account of the judgments of the CJEU in Rendón Marin and CS and have since been replaced by new Regulations made in 2016. However, those developments are of no relevance to the decision-making in the present case, which pre-dated them.
26. Mr Zambrano and his wife were nationals of Colombia, in other words a third state, which is not a member of the EU. While they were living in Belgium Mrs Zambrano gave birth to two children, who acquired Belgian nationality by operation of Belgian law. Accordingly both children were also citizens of the EU. They did not at any stage exercise their right to move freely within the EU. Mr Zambrano applied for unemployment benefit. That application was rejected on the ground that, since he had never held a work permit in Belgium, he did not have the requisite qualifying period as required by national legislation governing the residence and employment of foreign workers. The Employment Tribunal in Belgium made a reference to the CJEU.
27. The CJEU held that Article 20 of the TFEU precludes national measures which have the effect of depriving citizens of the EU of the genuine enjoyment of the substance of the rights conferred by virtue of their status as such citizens. A refusal to grant a right of residence to a third country national who has dependent minor children in the member state where those children are nationals and reside, and also a refusal to grant such a person a work permit, has such an effect. The CJEU said that such a refusal would lead to a situation where those children, who are citizens of the EU, would have to leave the territory of the EU in order to accompany their parents. Accordingly, the CJEU answered the questions referred to it in the following way, at para. 45 of its judgment:

"… Article 20 … is to be interpreted as meaning that it precludes a member state from refusing a third country national on whom his minor children, who are European Union citizens, are dependent, a right of residence in the member state of residence and nationality of those children, and from refusing to grant a work permit to that third country national, in so far as such decisions deprive those children of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizen."

28. The right of a third-country national in such a case has become known as a "derivative right" because it derives from the rights of the dependent children who are themselves citizens of the EU.
29. The decision in Zambrano was given effect in domestic law by amending the 2006 Regulations. Regulation 15A(4A) provides that a person who satisfies the criteria set out in it is entitled to a "derivative right to reside in the United Kingdom". Regulation 15A(9) provides that a person who is otherwise entitled to a derivative right to reside shall not be so entitled "where the Secretary of State has made a decision under Regulation 19(3)(b), 20(1) or 20A(1)".
30. Regulation 19(3)(b) provides that an EEA national may be removed from the UK if the Secretary of State has decided that his removal is justified on grounds of public policy, public security or public health in accordance with Regulation 21.
31. Regulation 21A applies an amended version of Part 4 of the 2006 Regulations to decisions taken in relation to (among other things) derivative rights of residence. Regulation 21A(3)(a) applies Part 4 as if "references to a matter being justified on grounds of public policy, public security or public health in accordance with Regulation 21 referred instead to a matter being 'conducive to the public good'." Regulation 21A(3)(g) disapplies Regulation 20(6) and Regulation 21. The effect of these provisions is that the Secretary of State may refuse to grant a derivative right to reside to, and may decide to deport, a person who would otherwise qualify for a right of residence under Article 20 of the TFEU as applied by the CJEU in Zambrano where to do so would be "conducive to the public good".

The determination of the Upper Tribunal

32. As I have said the UT comprised UT Judges Jordan and Pitt. In their determination, at para. 19, they applied the Zambrano principles in the present case and said:

"… Importantly, they are not a principle of European human rights law operated on principles of proportionality. In other words, the Court or Tribunal is not deciding whether it [is] proportionate to remove the British child so that his best interests (as a primary consideration) are weighed against the public interest in favour of removing those who commit serious crimes. The prohibition against removal is absolute and prevents removal, notwithstanding the seriousness of the offence."

33. Accordingly, the UT concluded that it was not necessary to say anything about the proportionality of removal. However, for the sake of completeness, they expressed the opinion that they were not persuaded that the Respondent's removal, together with D, would be disproportionate under Article 8 of the European Convention on Human Rights: see paras. 22-23 of the determination.
34. Finally, I should observe that the UT made reference to the offence for which the Respondent had been convicted and her sentence of 30 months imprisonment for it. At para. 28, they said:

"… Whilst this is at the low end of sentences for supplying cocaine, this was nevertheless serious offending and the canker caused by the spread of drugs – particularly those recognised as Class A – creates a substantial public interest in removing those who are involved, if their removal is permissible. … That interest includes, according to Wilson LJ (as he then was) in OH (Serbia) v SSHD [2008] EWCA Civ 694, a proper regard to the public interest as an expression of public revulsion or its role in the building of public confidence."^[1]

Grounds of Appeal

35. The two grounds of appeal which are still advanced by the Secretary of State are the following:

(1) The UT wrongly concluded that the principle established by the CJEU in Zambrano is absolute and prohibits the deportation of a third-country national even where he or she is guilty of serious criminal conduct.

(2) The UT failed to consider and apply Regulations 20 and 21A of the 2006 Regulations in concluding that the Secretary of State's decision to remove the Respondent was not in accordance with the law.

36. As I have mentioned, it is common ground between the parties that those two grounds in substance raise the same point of law and, therefore, that the second ground does not add anything material to the first.

The Appellant's Submissions

37. On behalf of the Secretary of State Mr David Blundell submits that the test for whether an error of law is material in the present context is a relatively low one.
38. Mr Blundell relies on the decision of this Court in IA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 323; [2007] Imm AR 685, at para. 15, where Keene LJ said:

"… in public law cases, an error of law will be regarded as material unless the decision-maker must have reached the same conclusion without the error … [A]n error of law is material if the Adjudicator might have come to a different conclusion … "

39. Mr Blundell also reminds us of the decision of this Court in ML (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 844, at paras. 14-17 (Moses LJ) and para. 20 (Sir Stanley Burnton). As Mr Blundell submits, the test which was established in that case was that the outcome must be "inevitable" if an error of law is to be regarded as being immaterial.
40. Mr Blundell submits that the omissions made by the UT in the present case were serious and cannot be rectified on this appeal. In particular he submits that there will be required careful consideration of all the facts and evidence of the case. He submits that the outcome is far from inevitable and so this Court should remit the case to the UT for reconsideration.

The Respondent's Submissions

41. With the permission of Master Meacher dated 8 November 2017, the Respondent filed a Respondent's Notice, in which she asks this Court to uphold the decision of the UT on a different or additional ground. That ground is elaborated in a skeleton argument submitted on behalf of the Respondent dated 2 November 2017. In particular Mr Hugh Southey QC, who appeared before this Court on behalf of the Respondent with Mr Iain Palmer, submits that the errors of law in this case by the UT were not material. He submits that the limited exceptions to the Zambrano principle which the CJEU has now set out are not applicable in the present case.
42. Mr Southey submits that, in so far as a proportionality exercise needs to be performed in cases of this kind, this Court can and should conduct that exercise for itself rather than remit the case to the UT for that tribunal to do so.
43. Mr Southey also submits that, when it comes to application of the proportionality test to the facts of this case, there are no "exceptional circumstances" to justify the Respondent's deportation. He reminds this Court that the Respondent's criminal offence was committed over 11 years ago and that she has been at liberty for over 8 years. During that period no further criminal offences have been committed by her. He submits that there is no "genuine, present and sufficiently serious threat affecting one of the fundamental interests of society" and that her deportation would not serve to protect the requirements of public policy or public security.
44. Mr Southey further submits that it would not be proportionate under EU law to deport the Respondent now in the light of the best interests of her son, D.
45. Turning to the second ground of appeal, Mr Southey submits that the 2006 Regulations do not change the analysis. They were plainly intended to be consistent with EU law and there is no reason why those Regulations cannot be interpreted consistently with the case law of the CJEU.
46. Accordingly Mr Southey submits that the Respondent's deportation would plainly infringe EU law and this Court should say so rather than remitting the case to the UT.

Issues

47. As I have said, the scope of the dispute between the parties has narrowed considerably in the light of the decisions of the CJEU in Rendón Marin and CS. It seems to me that, having regard to the parties' written and oral submissions, the four issues that remain are the following:

(1) Should this Court perform the proportionality exercise itself or should it remit the case to the UT?

(2) What is the correct test that should be applied in the light of the decisions of the CJEU in Rendón Marin and CS?

(3) What is the current status and effect of the decision in Case 30/77 R v Bouchereau [1978] ECR 732?

(4) What is the relevance, if any, of the Rehabilitation of Offenders Act 1974?

Discussion

Issue (1): Should this Court perform the proportionality exercise itself or should it remit the case to the UT?

48. In his submissions on behalf of the Respondent Mr Southey invited this Court itself to perform the proportionality exercise which is called for. He made that submission on the basis of the decision of the Supreme Court in Re B (Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, relying in particular on what was said at para. 88 in the judgment given by Lord Neuberger PSC.
49. In that case Lord Neuberger explained that the role of an appellate court in cases where a first instance court or tribunal has performed a proportionality exercise under the Human Rights Convention remains the normal one of a "review rather than a rehearing" and that the appeal will be allowed only where the decision is "wrong" or "unjust because of a serious procedural or other irregularity in the proceedings": see para. 87. At para. 88 Lord Neuberger went on to say:

"… If, after reviewing the judge's judgment and any relevant evidence, the appellate court considers that the judge approached the question of proportionality correctly as a matter of law and reached a decision which he was entitled to reach, then the appellate court will not interfere. If, on the other hand, after such a review, the appellate court considers that the judge made a significant error of principle in reaching his conclusion or reached a conclusion he should not have reached, then, and only then, will the appellate court reconsider the issue for itself if it can properly do so (as remitting the issue results in expense and delay, and is often pointless)."

50. In my view, there are three difficulties with Mr Southey's submission in this regard. First, this is not a case where this Court has had the advantage of seeing a judgment in which a first instance court or tribunal has already performed a proportionality exercise: the UT failed to perform the proportionality exercise (which it is now clear it was required to do) at all. Although it is true that the UT "made a significant error of principle", this was because the UT failed to address the question of proportionality in the first place. What Lord Neuberger had in mind was the situation where a court has performed the proportionality exercise at first instance but has made an error of principle in doing so.
51. Secondly, as Lord Neuberger recognised in the passage I have quoted, an appellate court should reconsider the issue for itself only "if it can properly do so". There are cases in which it will not be appropriate to remit the issue, as Lord Neuberger observed, not least because of the expense and delay. However, in my view, the present case is not one of those where remittal would be "pointless". Far from it.
52. This leads me to my third point. It is that the question of proportionality should be addressed in the present case only after full consideration has been given to the issues of fact and, in particular, up-to-date information should be placed before the UT. One reason for this in the present case is that it concerns the potential impact of deportation on a young child, D. Since the best interests of a child must always be a primary consideration for the court, it is important that the UT should have available to it the most up-to-date information about the likely impact of D's mother's deportation on him.
53. Accordingly, I accept the submissions made by Mr Blundell that in this case the errors of law which were made by the UT were material and that the case should be remitted to the UT for redetermination. In those circumstances I hope it will be helpful if I address the remaining issues in order to provide guidance to the UT as to how it should approach the case on remittal.

Issue (2): what is the correct test that should be applied in the light of the decisions of the CJEU in Rendón Marin and CS?

54. In the Rendón Marin case the CJEU gave its answer to the Spanish Tribunal on the reference to it as follows at para. 88:

"In light of all the foregoing considerations, the answer to the question referred is as follows:

Article 21FEU and Directive 2004/38 must be interpreted as precluding national legislation which requires a third-country national to be automatically refused the grant of a residence permit on the sole ground that he has a criminal record where he is the parent of a minor child who is a Union citizen and a national of a member state other than the host member state and who is his dependant and resides with him in the host member state;

Article 20FEU must be interpreted as precluding the same national legislation which requires a third-country national who is a parent of minor children who are Union citizens in his sole care to be automatically refused the grant of a residence permit on the sole ground that he has a criminal record, where that refusal has the consequence of requiring those children to leave the territory of the European Union."

55. In CS the CJEU answered the question which had been referred to it by the UT in the following way at para. 50 of its judgment:

"In the light of all the foregoing considerations, the answer to the question referred is that article 20FEU must be interpreted as precluding legislation of a member state which requires a third-country national who has been convicted of a criminal offence to be expelled from the territory of that member state to a third country notwithstanding the fact that that national is the primary carer of a young child who is a national of that member state, in which he has been residing since birth without having exercised his right of freedom of movement, when the expulsion of the person concerned would require the child to leave the territory of the European Union, thereby depriving him of the genuine enjoyment of the substance of his rights as a Union citizen. However, in exceptional circumstances a member state may adopt an expulsion measure provided that it is founded on the personal conduct of that third-country national, which must constitute a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society of that member state, and that it is based on consideration of the various interests involved, matters which are for the national court to determine."

56. The "foregoing considerations" to which the CJEU referred in that passage are to be found in paras. 36-49 of its judgment. I will seek to summarise what the CJEU said with a view to providing guidance to the UT when issues of this kind have to be considered both in the present case and in future cases.
57. First, account must be taken of the right to respect for private and family life, as laid down in Article 7 of the EU Charter of Fundamental Rights, and also the obligation to take into consideration a child's best interests, which is recognised in Article 24(2) of the Charter.
58. In principle, the concepts of "public policy" and "public security" provide legitimate aims which can justify an interference with those fundamental rights. For example, "the fight against crime in connection with drug trafficking as part of an organised group" will be included within the concept of "public security", as will the fight against terrorism.
59. Thirdly, the expulsion decision must be founded on the existence of a genuine, present and sufficiently serious threat to the requirements of public policy or of public security, in view of the criminal offences committed by a third-country national who is the sole carer of children who are EU citizens.
60. That conclusion cannot be drawn automatically on the basis solely of the criminal record of the person concerned. It can only result, where appropriate, from a specific assessment by the national court of all the current and relevant circumstances of the case, in the light of the principle of proportionality, of the child's best interests and of the fundamental rights whose observance the courts ensure.
61. That assessment must therefore take account in particular of:

(1) the personal conduct of the individual concerned;

(2) the length and legality of his residence on the territory of the member state concerned;

(3) the nature and gravity of the offence committed;

(4) the extent to which the person concerned is currently a danger to society;

(5) the age of the child at issue and his state of health;

(6) his economic and family situation.

62. In carrying out the balancing exercise required by that assessment, the court must take account of the fundamental rights at stake, in particular the right to respect for private and family life, and ensure that the principle of proportionality is observed.
63. Furthermore, account must be taken of the child's best interests when weighing up the interests involved. Particular attention must be paid to his age, his situation in the member state concerned and the extent to which he is dependent on the parent who is to be deported.
64. Before I conclude on this issue I should briefly address some other submissions that were made before this Court.
65. Our attention was also drawn to the opinion of the Advocate-General (M. Szpunar), at para. 177, where he made the following recommendation to the CJEU in the case of CS:

"… I propose that the Court's answer should be that it is, in principle, contrary to Article 20FEU for a member state to expel from its territory to a non-member state a third-country national who is the parent of a child who is a national of that member state and of whom the parent has sole care and custody, when to do so would deprive the child who is a citizen of the Union of genuine enjoyment of a substance of his or her rights as a citizen of the Union. Nevertheless, in exceptional circumstances, a member state may adopt such a measure, provided that it: observes the principle of proportionality and is based on the personal conduct of the foreign national, which must constitute a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, and is based on an imperative reason relating to public security."

66. Mr Blundell invites this Court to attach significance to the fact that the last phrase in that passage ("and is based on an imperative reason relating to public security") did not find its way into the judgments of the CJEU. He submits that the CJEU did not adopt that part of the recommendation made by the Advocate-General. He also points out that the language used by the Advocate-General is the language of the Directive, in particular Article 28(3). He submits that it imposes a higher test than the test that was eventually adopted by the CJEU in the context of Articles 20-21 of the TFEU. I agree with those submissions by Mr Blundell.
67. Mr Southey emphasises the use of the phrase "exceptional circumstances" in the opinion of the Advocate-General, at para. 177, and in the judgment of the CJEU in CS, at para. 50. I do not attach the significance to that phrase which Mr Southey submits it has. In my view, it does not import an additional requirement which the state must satisfy on top of what follows; rather the phrase is a helpful summary of what follows ("provided …"). In other words "exceptional circumstances" simply means that it is an exception to the general rule, which is that a person who enjoys the fundamental rights of an EU citizen cannot be compelled to leave the EU. It does not mean that, where the criteria set out in the proviso are satisfied, there is an additional hurdle that there must also be exceptional circumstances.

Issue (3): What is the current status and effect of R v Bouchereau?

68. There was an interesting debate between the parties in this appeal about whether past conduct alone, and "public revulsion" in particular, may be sufficient to justify deportation of an offender in this sort of case. In that context there was debate about the extent to which the decision of the European Court of Justice ("ECJ") in R v Bouchereau remains good law. That case concerned Directive 64/221.
69. In that case Advocate-General Warner said at p.742:

"The United Kingdom Government … points out that cases do arise, exceptionally, where the personal conduct of an alien has been such that, whilst not necessarily evincing any clear propensity on his part, it has caused such deep public revulsion that public policy requires his departure. I agree. I think that in such a case a member state may exclude a national of another member state from its territory, just as a man may exclude from his house a guest, even a relative, who has behaved in an excessively offensive fashion. Although therefore, in the nature of things, the conduct of a person relevant for the purposes of Article 3 will generally be conduct that shows him to have a particular propensity, it cannot be said that that must necessarily be so."

70. At paras. 27-30 of its judgment the ECJ said:

"27. The terms of article 3(2) of the Directive, which states that 'previous criminal convictions shall not in themselves constitute grounds for the taking of such measures,' must be understood as requiring the national authorities to carry out a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy, which does not necessarily coincide with the appraisals which formed the basis of the criminal conviction.

28. The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.

29. Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.

30. It is for the authorities and, where appropriate, for the national courts, to consider that question in each individual case in the light of the particular legal position subject to Community law and of the fundamental nature of the principle of the free movement of persons."

71. It is important to recognise that what the ECJ was there talking about was not a threat to "the public" but a threat to "the requirements of public policy". The latter is a broader concept. At para. 28 the ECJ said that past conduct can only be taken into account in so far as it provides evidence of personal conduct constituting a "present threat to the requirements of public policy." As the ECJ said at para. 29, "in general" that will imply that the person concerned has a "propensity to act in the same way in the future" but that need not be so in every case. It is possible that the past conduct "alone" may constitute a threat to the requirements of public policy. In order to understand in what circumstances that might be so, I consider that it is helpful and appropriate to have regard to the opinion of the Advocate-General in Bouchereau, when he referred to "deep public revulsion". That is the kind of extreme case in which past conduct alone may suffice as constituting a present threat to the requirements of public policy.
72. Bouchereau was considered by this Court in R v Secretary of State for the Home Department, ex p. Marchon [1993] Imm AR 384 and was applied in that case by this Court.
73. However, in the more recent case of Straszewski v Secretary of State for the Home Department [2015] EWCA Civ 1245; [2016] 1 WLR 1173, at para. 19, Moore-Bick LJ said that he could see "some force in Mr Drabble's submission that the decision in ex p. Marchon can no longer be regarded as representing Community law." He continued, at para. 20:

"… The authorities to which I have referred support the general proposition that great importance is to be attached to the right of free movement which can be interfered with only in cases where the offender represents a serious threat to some aspect of public policy or public security. Save in exceptional cases, that is to be determined solely by reference to the conduct of the offender (no doubt viewed in the context of any previous offending) and the likelihood of re-offending. General considerations of deterrence and public revulsion normally have no part to play in the matter. In these respects the principles governing the deportation of foreign criminals in general differ significantly from those which govern the deportation of EEA nationals who have acquired a permanent right of residence. …" (Emphasis added)

74. Mr Southey submits that similar principles apply in the case of someone who is not an EEA national but enjoys Zambrano rights by virtue of his/her relationship to a child who is a citizen of the EU. I would observe that the words which I have emphasised in the above passage indicate that, while Moore-Bick LJ thought that such cases would be exceptional, he acknowledged that there can in principle be cases in which the Bouchereau reference to past conduct, and in particular public revulsion, may still be relevant.
75. Mr Blundell drew the attention of this Court to the decision of the Court of Appeal (Criminal Division) in R v Kluxen [2010] EWCA Crim 1081; [2011] 1 WLR 218, at paras. 14-24, where the Court (in a judgment given by Thomas LJ, as he then was) concluded that the Bouchereau test is still valid and has survived the replacement of Directive 64/221 by Directive 2004/38.
76. That in turn raises an interesting question about the extent to which the Civil Division of the Court of Appeal is bound by decisions of the Criminal Division. We did not have the benefit of full argument on this question and, in my view, for reasons that will become apparent, it is unnecessary to give a definitive answer to it in the present case. Since the question may be of more central importance in other cases, I would prefer to express no view on it save to note two things.
77. First, at a time when there was a separate Court of Criminal Appeal (which was created in 1907 and abolished in 1966, when the Criminal Division of the Court of Appeal was created), the Court of Appeal felt able in at least one case to decline to follow a decision of the Court of Criminal Appeal: see Hardie and Lane Ltd v Chilton & Others [1928] 2 KB 306, in which R v Denyer [1926] 2 KB 258 was considered to be wrong. So far as I am aware, the issue has not been considered by this Court since the creation of a single Court of Appeal, with a Civil Division and a Criminal Division.
78. The second thing to note is that, whatever the position may be more generally, it may be that particular significance has to be attached to the fact that Bouchereau is a decision of the ECJ, given that the courts of this country are (as the law currently stands) bound by any relevant decision of that Court: see section 3(1) of the European Communities Act 1972.
79. However, it is unnecessary to delve more deeply into this question relating to the doctrine of precedent because, in my view, what was said by Thomas LJ in Kluxen was and remains correct. Therefore, even if that decision were not strictly binding on the Civil Division, I would follow it.
80. Accordingly, I am of the view that the decision in Bouchereau continues to bind the courts of this country. I therefore have come to a different conclusion on the status of Bouchereau from that of the UT (McCloskey J and UT Judge O'Connor) in CS when that case was decided after the preliminary ruling had been given by the CJEU: cf. para. 108 of the UT judgment in CS.
81. At para. 108 the UT said:

"Drawing together the various strands we summarise our evaluation of the Bouchereau decision in these terms. First, the conclusion expressed in [29] is prima facie irreconcilable with the clear language of Article 3(2) of the 1964 Directive. Second, the reasoning underpinning the conclusion is sparse and opaque. Third, the conclusion cannot be readily linked to either the argument of the United Kingdom Government or the opinion of the Advocate-General. Fourth, neither the legal regime to which the Bouchereau decision belongs nor its modern incarnation has any application to the expulsion of third country nationals such as the Respondent. Finally, in our judgment, the Bouchereau principle has not survived the advent of Article 20 TFEU and the Citizens' Directive, either singly or in combination."

82. I regard that reasoning as wrong. I note also that the UT did not refer to the decision in Kluxen and, in my view, its reasoning is inconsistent with what was said there.
83. I also note that, in the alternative, the UT in CS took the view that what was said in Bouchereau does not apply to the context of derivative rights under the Zambrano principle. At para. 110 the UT said:

"We consider it abundantly clear from these passages that the derogation by a Member State from a derived right of residence flowing from Article 20 TFEU is permissible only where the test formulated in [40] is satisfied following a specific, individualised assessment of the broad dimensions outline in [41] – [42] and giving effect to the principle of proportionality. The Court has pronounced unequivocally that the test cannot be satisfied where the expulsion decision is based exclusively on the criminality of the third country national concerned. We conclude that if the burial rites of the Bouchereau principle have not already been performed, there is no discernible basis upon which it can apply to the present case."

84. Again I regard that reasoning as wrong. Although the CJEU did not expressly refer to Bouchereau with approval in CS, nor it did in terms overrule it or depart from it. Further, there is no reason, in my view, to regard the two decisions as being necessarily inconsistent with each other. This is because, as I have said in my earlier analysis of Bouchereau, that case itself recognised that what one is looking for is a present threat to the requirements of public policy; but it also recognised that, in an extreme case, that threat might be evidenced by past conduct which has caused deep public revulsion.
85. However, with all of that said, I am also of the view that the sort of case that the ECJ had in mind in Bouchereau, when it referred to past conduct alone as potentially being sufficient, was not the present sort of case but one whose facts are very extreme. It is neither necessary nor helpful to attempt an exhaustive definition but the sort of case that the court was thinking of was where, for example, a person has committed grave offences of sexual abuse or violence against young children.
86. I would not wish to belittle the seriousness of the offence in the present case but it is not the sort of offence in which public revulsion at a past offence alone will be sufficient. I note that, in Straszewski, Moore-Bick LJ referred to "the most heinous of crimes" at para. 17. That gives an indication of the sort of offence the ECJ had in mind when it said that a past offence alone might suffice. I also note that, in ex p. Marchon, the defendant was convicted of an offence of conspiracy to import 4½ kg of a Class A drug (heroin); he was a doctor; and he was sentenced to 11 years' imprisonment. As Moore-Bick LJ observed in commenting on that case in Straszewski, at para. 18, the offence had been described by this Court in ex p. Marchon as being "especially horrifying" and "repugnant to the public" because it had been committed by a doctor. In contrast, as the UT noted at para. 28 of its judgment in the present case, the sentence of 30 months' imprisonment that was imposed on this Respondent was at the lower end of the scale for offences of supplying Class A drugs.

Issue (4): Rehabilitation of Offenders Act 1974

87. Finally I should mention that there was some debate between the parties as to the relevance (if any) of the Rehabilitation of Offenders Act 1974 ("the 1974 Act").
88. The 1974 Act, as is well known, has the effect that, in the circumstances to which it applies, a person will be treated as having become "a rehabilitated person" in respect of a criminal conviction and, for example, may not be under an obligation to disclose the fact of that conviction to a potential employer.
89. However, as Mr Southey fairly conceded, the 1974 Act has no direct application in the present context. This is because section 56A of the UK Borders Act 2007 provides that section 4(1), (2) and (3) of the 1974 Act do not apply in relation to any proceedings in respect of a relevant immigration decision or otherwise for the purposes of, or in connection with, any such decision: see subsection (1). For this purpose "relevant immigration decision" means any decision, or proposed decision, of the Secretary of State or an Immigration Officer under or by virtue of the Immigration Acts, or rules made under section 3 of the Immigration Act 1971 in relation to the entitlement of a person to enter or remain in the United Kingdom (including, in particular, the removal of a person from the United Kingdom, whether by deportation or otherwise): see subsection (2).
90. Accordingly, in my view, reference to the 1974 Act concept of rehabilitation takes matters no further in the present case.

Conclusion

91. For the reasons I have given I would allow this appeal by the Secretary of State and remit the case to the Upper Tribunal for redetermination on the merits. I am not persuaded by the submissions made on behalf of the Respondent that, despite what are acknowledged to be errors of law in the light of the recent judgment of the CJEU, those errors were immaterial and that this Court should dismiss this appeal.

Lindblom LJ :

92. I agree.

Underhill LJ :

93. I also agree.

Note 1   It should be noted that Lord Wilson JSC, as he now is, has more recently retreated in part from what he had said inOH: see Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60; [2016] 1 WLR 4799, at para. 70. In particular he regretted his use of the phrase “society’s revulsion” and accepted the criticism made of it by Lord Kerr JSC, in his dissenting judgment inHesham Ali, at para. 168. On reflection Lord Wilson considered it “too emotive a concept to figure in this analysis.”    [Back]