& 200903013 A2 (ROSTAS)
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM :
MISS RECORDER CUTTS QC
T20090309 ( KLUXEN)
HIS HONOUR JUDGE CURRAN
T20087093 -1 ( ROSTAS) & T20087093 - 2 (ADAM)
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE MADDISON
SIR GEOFFREY GRIGSON
|- and -
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|German Rostas and Superman Adam
Miss C Laing QC and Miss Flavia Kenyon (instructed by Johl & Walters) for the Appellant s (Adam & Rostas)
Miss E Pearson (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 23 February 2010
Crown Copyright ©
Mr Justice Maddison:
The effect of the United Kingdom Borders Act 2007
(a) The provisions of the Act
(b) The making of recommendations
i) No useful purpose would be served by doing so. The Secretary of State is obliged by section 32(5) to make a deportation order unless one or more of the exceptions specified in section 33 applies, and it is for the Secretary of State to decide whether any of those exceptions does apply.
ii) Although section 32 of the 2007 Act does not expressly prevent the Court from recommending the deportation of a "foreign criminal" it does expressly remove any need for the Court to do so. To explain this, it is necessary to turn to the Immigration Act 1971 (1971 Act). The power of the Secretary of State to order the deportation of a person who is not a British Citizen derives from section 5(1) of that Act. This provides that "where a person is under section 3(5) or (6) above liable to deportation… the Secretary of State may make a deportation order against him…". Sections 3(5) and (6), in their present form, provide that a person who is not a British Citizen shall be liable to deportation if:1. the Secretary of State deems his deportation to be conducive to the public good (section 3(5)(a)); or2. another person to whose family he belongs is or has been ordered to be deported (section 3(5)(b)); or3. after he has obtained the age of 17, he is convicted of an offence punishable by imprisonment and is recommended for deportation by a court empowered by the 1971 Act to do so (section 3(6)): that is by any court having power to sentence a person to whom section 3(6) applies unless the court commits him to be sentenced or further dealt with for the offence by another court (section 6(1)).Returning to the 2007 Act, section 32(4) provides that "for the purpose of section 3(5)(a) of the 1971 Act the deportation of a foreign criminal is conducive to the public good". Thus any "foreign criminal" is liable to deportation under section 3(5)(a) of the 1971 Act and must be deported under section 5(1) of that Act by virtue of section 32(5) of the 2007 Act. There is no need for a court to be involved in this process at all.
Offenders to whom the 2007 Act does not apply
(a) The Nazari test
"First the Court must consider…whether the accused's continued presence in the United Kingdom is to its detriment. This country has no use for criminals of other nationalities, particularly if they have committed serious crimes or have long criminal records… The more serious the crime and the longer the record the more obvious it is that there should be an order recommending deportation. On the other hand, a minor offence would not merit an order recommending deportation…".
We will refer to the test "…whether the accused's continued presence in the United Kingdom is to its detriment" as "the Nazari test". In Nazari, none of the appellants were EU citizens. They were Iranian, Sri-Lankan and Spanish nationals. Spain had not yet acceded to the EU.
(b) The Bouchereau test
(c) Is the Bouchereau test still valid?
"(1) Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.
(2) Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures."
Article 3 was intended to amplify what was then Article 48 of the Treaty of Rome, which provided for the security of freedom of movement for workers
"…subject to limitations justified on grounds of public policy [or] public security…."
i) a recommendation for deportation was a "measure" within Article 3(1) since it was a pre-condition for the making of a deportation order under section 3(6) of the Immigration Act 1971;
ii) the effect of Article 3(2) was that a previous criminal conviction could be taken into account only if it was evidence of personal conduct constituting a present threat to the requirements of public policy; and
iii) "recourse by a national authority to the concept of public policy pre-supposes…the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society."
"This Directive shall apply to all Union Citizens who move to or reside in a Member State other than that of which they are a national…".
Article 27(1) provides that:
" "…Member States may restrict the freedom of movement and residence of Union Citizens… on grounds of public policy [or] public security…".
Article 27(2) provides:
"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 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 effecting one of the fundamental interests of society….".
(d) Comparing the Nazari and Bouchereau tests
"Thus under EEC Law a valid recommendation for deportation can only be made if at least two conditions are fulfilled: first, that there exists a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society – in our judgment, that is simply a somewhat fuller way of saying that the appellant's continued presence in the United Kingdom would be to its detriment – and secondly, that the reasons are given to the appellant for making the recommendation. Mr Turner who appeared before the Court as amicus curiae submitted that EEC law here simply mirrors the law and practice of this country. With that submission we agree."
In Spura at p 378 the Court referred the Bouchereau test and continued:
"…in the case of Escauriaza… the Court…concluded, accepting a submission from an amicus experienced in these matters, that EEC law simply mirrored the law and practice of the United Kingdom. On that basis, one goes back to the test originally laid down in Nazari…where the test was said to be "does the potential detriment to this country justify the recommendation for deportation of this Appellant?...The overall test, as distilled by the European Court in Bouchereau is whether [a full enquiry into the circumstances] reveals that a genuine and sufficiently serious threat to the requirements of public policy has affected the fundamental interests of society."
This part of the judgment of the Court in Spura was adopted in R. v. Cravioto (1990) 12 Cr. App. R. (S.) 71, 74-5. More recently in R. v. Benabbas  1 Cr. App. R. (S.) 550(94) this Court was considering a recommendation for the deportation of an Algerian national. Giving the judgment of the Court, Rix LJ referred to both the Nazari and the Bouchereau tests. He continued at paragraph 16:
"The Appellant is not of course an EU national, but we refer to Bouchereau because English authority (see below) has said that the "detriment" principle in English law works on the same basis."
Later Rix LJ referred to the cases of Escauriaza and Cravioto.
(e) Offenders to whom the 2007 Act does not apply: conclusion
(f) Matters not to be taken into account
i) The rights of the offender under the European Convention on Human Rights, of which Articles 2, 3 and 8 are those most likely to be engaged. This is for the reasons explained in paras 15 – 22 of the judgment of this Court delivered by Stanley Burnton J. in R. v. Carmona  2 Cr. App. R. (S.) 662: in essence that the Secretary of State and, in the event of an appeal against a deportation order, the Asylum and Immigration Tribunal, are able and better placed than a sentencing court to consider the offender's Convention rights.
ii) The effect that a recommendation for deportation might have on innocent persons not before the Court, such as members of the family of the offender concerned (see Carmona at paragraphs 18 and 21, disapproving the remarks of Lawton LJ in this regard in Nazari at page 95.)The extent to which the approach of the Court in Carmona to the first and second factors would have been different had the Court been referred to the incorporation within Article 27(2) of Directive 2004/38 of the principle of proportionality is a matter which may fall to be considered in future cases. It does not arise for decision in these appeals.
iii) The political situation in the country to which the offender may be deported (see Nazari at page 95 and Carmona at paragraphs 18 and 19).
i) This Article has been relied on on behalf of the Appellant Kluxen. It was also referred to in Carmona, at paragraph 3, and is mentioned in paragraph 5-919 of Archbold (2010) where the criteria for the exercise of the power to recommend an offender's deportation are discussed. Article 28(1) provides:"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".By Articles 28(2) and (3), the host Member State may take an expulsion decision against a Union Citizen who has the right of permanent residence on its territory only on serious grounds of public policy or public security; and against a Union Citizen who has resided in the host Member State for the previous ten years or is a minor (unless expulsion is necessary in the minor's best interest) only on imperative grounds of public security. (The emphases in this paragraph are ours).
ii) Article 28 applies only to EU citizens. If it governed the decision of a court to recommend an offender's deportation, it would clearly require the court to approach that decision differently according to whether the offender was or was not an EU citizen. In our view, however, Article 28 does not govern such a decision. It governs only the decision of the Secretary of State to make a deportation order. It prescribes matters to be taken into account before an "expulsion decision" is taken. The courts of England and Wales have no jurisdiction to make an "expulsion decision". They may recommend an offender's deportation, but the decision whether or not actually to deport the offender is taken only by the Secretary of State though subject to appeal to the AIT. We consider it significant that Article 27, which does apply to deportation recommendations, refers only to "measures" whereas Article 28 refers only to "decisions".
i) They apply only to nationals of states within the "European Economic Area" (EEA) which by regulation 2(1) are states within the EU (other than the United Kingdom), together with Norway, Iceland, Liechtenstein and Switzerland. Regulations 19 and 21 govern decisions to remove such persons from the United Kingdom. Insofar as it is relevant, regulation 19 provides:"(3) …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 -…(3) 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 [or] public security…in accordance with regulation 21."
ii) Regulation 21 then sets out matters to be taken into account when a "relevant decision" is taken. By regulation 21(1) a "relevant decision" is an "EEA decision taken on the grounds of public policy [or] public security…". The definition of an "EEA decision" in regulation 2(1) includes "a decision under these Regulations that concern a person's…(c) removal from the United Kingdom". This brings one back to regulation 19(3), and to the Secretary of State. (In the passages from the 2006 Regulations cited above, we have omitted references to public health which do not bear on the matters we are considering).
iii) By virtue of regulations 21(3), (4) and (6), the matters to be taken into account when a "relevant decision" is taken include those referred to in Article 28 of Directive 2004/38. If regulations 19 and 21 governed the decision of a sentencing court to recommend an offender's deportation, they would clearly require that court to approach that decision differently according to whether the offender was or not an EEA citizen. In our view, however, these regulations do not govern such a decision. Like Article 28 itself, they govern only the decision of the Secretary of State to make a deportation order. The 2006 Regulations refer throughout to "decisions" rather than to "measures". For the reason explained in paragraph 31.ii) above when we were considering Article 28, we regard this as significant. More importantly, when providing for the removal of EEA nationals from the United Kingdom, the 2006 Regulations refer expressly and exclusively to decisions to be taken by the Secretary of State. Nowhere in the 2006 Regulations is there any reference to any sentencing court.
iv) Our conclusion that the 2006 Regulations govern only decisions to deport offenders taken by the Secretary of State is strengthened by reference to regulation 21(6). This substantially replicates Article 28(1) of Directive 2004/38 (see paragraph 31.i) above). Regulation 21(6) refers not only to a "relevant decision" but also to "the decision maker" (the latter in substitution for "the host Member State" in Article 28(1)). The definition of "decision maker" in regulation 2(1), insofar as it is material, refers to the Secretary of State. Again there is no reference to any sentencing court.
v) For the sake of completeness, we should refer to one provision within the 2006 Regulations which on first examination might seem to run counter to our conclusion. This is regulation 21(5). It substantially replicates Article 27(2) of Directive 2004/38 which, as explained above, does apply to a deportation recommendation. In our view it does not follow that a sentencing court should have regard to the 2006 Regulations. All that follows is that the matters which, by virtue of Article 27(2), a sentencing court must consider when deciding whether to recommend an offender's deportation are also matters which, amongst many others set out in regulation 21, the Secretary of State must also consider when deciding whether to order an offender's deportation.
vi) We would add (by analogy to the reasoning in Carmona) that the Secretary of State is better placed than a sentencing court could be to assess the matters set out in Article 28 of Directive 2004/38 and in regulation 21 of the 2006 Regulations; and that, unlike a sentencing court, he is able to do so when an offender's deportation is actually being considered, which may be long after any recommendation for the offender's deportation that the sentencing court may have made.
vii) It is to be noted that even before Directive 2004/38 came into force, this Court in Carmona doubted whether Article 28 of Directive 2004/38 would apply to a recommendation for deportation, a recommendation not being a "decision" within Article 28. However, the Court added that "we apprehend that the provisions of the new Directive will have a significant effect on the exercise by the courts of the power to make a recommendation for deportation, since it would not be right to make a recommendation for deportation in circumstances where the Directive precludes actual deportation". By way of comment on this passage it is said in Archbold (2010) at paragraph 5 – 919 that "it is likely, therefore, that courts dealing with persons covered by these regulations will apply the principles in Article 28 of the Directive, as elaborated by Regulation 21(5) of the 2006 Regulations". For the reasons we have given, we respectfully disagree. We would add that the passage from Carmona that we have cited did not refer specifically to Article 28, and that neither that Article nor any part of Regulation 21 precludes the making of a deportation order.
Summary of the position under the 2007 Act and in relation to other cases
i) In cases to which the 2007 Act applies, it is no longer necessary or appropriate to recommend the deportation of the offender concerned.
ii) In cases to which the 2007 Act does not apply, it will rarely be appropriate to recommend the deportation of the offender concerned, whether or not the offender is a citizen of the EU.
iii) If in a case to which the 2007 Act does not apply a Court is, exceptionally, considering recommending the deportation of the offender concerned, it should apply the Nazari test in tandem with the Bouchereau test, there being no practical difference between the two. This is so whether the offender is or is not a citizen of the EU.
iv) However, the Court should not take into account the Convention Rights of the offender; the political situation in the country to which the offender may be deported; the effect that a recommendation might have on innocent persons not before the Court; the provisions of Article 28 of Directive 2004/38; or the 2006 Regulations.
The appeal in Kluxen
The appeal in Rostas and Adam
The appeals on deportation