QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF SCHMELZ||(CLAIMANT)|
|IMMIGRATION APPELLATE AUTHORITY||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MISS S BROADFOOT (instructed by Treasury Solicitors) appeared on behalf of the DEFENDANT
Crown Copyright ©
Tuesday, 15th July 2003
"There was no evidence of his work record in Britain or evidence that he had paid tax and National Insurance here. He does not own property here and has no close relatives in Britain. His mother who is in her 70s lives in a home in Germany. The [Secretary of State's] explanatory statement stated that on 1 March 1994 he was involved with at least six others in the hijacking of an armoured Securicor van and was later found to be the prime organiser of the crime. The van had been on a regular routine journey from Southampton to the Midlands. One of the hijackers had been employed by Securicor, and had delayed activation of the alarm system after his fellow Securicor driver, who was not involved, received a planned phone call claiming that there was a bomb underneath the van which would be detonated if the van did not follow a blue Ford Escort car. The robbery however was abandoned although fire was caused by the thermal cutting rods which were used to get into the van. The appellant had originally claimed that he was innocent of the crime. He told an Immigration Officer who interviewed him before his release that he had worked in Britain as a self-employed market trader and antique shop owner and that he has an offer of employment. The Secretary of State noted, in the explanatory statement that 'the judge had stated that the case against the appellant was overwhelming, and he was satisfied the appellant was the person who masterminded and recruited people for a very carefully planned robbery involving very considerable sums of money. In sentencing he had borne in mind the fact that no weapons had been used or physical injuries inflicted. A Securicor van driver had however been made to contemplate a most horrible death by being blown to bits, and never seeing his family again."
The Adjudicator then referred to the claimant's witness statements which stated that jobs were available for him. Letters from the prospective employers were submitted. The Adjudicator noted that the claimant hoped that he would be able to resume his relationship with Sonya Radmore, although she was not in court. The claimant also said that he had last seen his mother 15 years ago and was sure he would have difficulties in Germany. In paragraph 7 the Adjudicator said:
"In reply to questions from Mr Sigley [on behalf of the Secretary of State] he said that he had not started work but the job offer was subject to the results of the appeal. He said that he had been unable to work for some time before he went to prison because of a car accident in 1992. He confirmed he had a conviction for burglary in 1985."
"In it she stated that the appellant had been released on licence, which would expire in March 2003. She said that his Personal Officer has spoken highly of his integrity and good behaviour and impeccable manners and that he had managed the prison library which was a position of trust. He had had supervision while in prison and had undertaken a number of courses. She referred to a Public Protection Review held between probation colleagues, a Senior Probation Officer and the police which had assessed the appellant's risk of re-offending and risk to the public as low and stated that no further reviews would be necessary. She added 'by completing the Essential Thinking Skills accredited programme, Mr Schmelz has significantly reduced his risk of re-offending and his OGYRS Reconviction rate is minimal - 7%'. She referred to his friends within the community, his offer of employment and said although he experienced some initial difficulties on release the care and support he received from friends which was indicative of their loyalty had helped him to rehabilitate at a steady pace. She felt that the work which had been put into helping the appellant had had a positive outcome and recommended that that constituted a basis for remaining in Britain."
The Adjudicator then referred to Ms Barrett's explanation of the Offender Group Reconviction Scale Version 2. On the basis of that analysis the claimant's OGRS score for a reconviction for any offence was 7 per cent:
"OGRS estimates that the offender is of: Some risk for reconviction of a sexual or violent offence".
The document points out that the OGRS score is an estimate of the probability that offenders with a given history of offending will be reconvicted within two years of sentence or release if sentenced to custody. It does not define the probability that a particular offender will be reconvicted. It also points out that it is only one aspect of risk assessment and that many other factors have to be taken into account when assessing the risk posed by a particular offender. It is an aid to judgment; it is not a substitute for judgment.
"... which stated that deportation was appropriate despite there being no propensity to offend when the offence was seriously sufficient."
It was also contended on behalf of the Secretary of State that at 51 the claimant would be able to readjust to life in Germany.
"In reply Miss Benjamin [who appeared on the claimant's behalf] emphasised that the appellant was exercising Treaty Rights and said that the Rules relating to the deportation of EU individuals made it clear that deportation must only be on the grounds of public policy, public security or public health and must be based exclusively on personal conduct as a present threat to the requirements of public policy and the measures must be a proportionate response to the risks posed by the person's conduct. She quoted from Macdonald's Immigration Law and Practice which stated 'This means that there can be no automatic deportation based simply on the gravity of the offence without consideration of the propensity to reoffend and all the individual circumstances'. She emphasised the terms of Council Directive 64/221 which stated that previous convictions should not in themselves constitute grounds for taking such measures and said that the decision in Bousignore said that a person should not be deported as a deterrent or preventative measure. She said that the law indicated that deportation was not a proportionate response if there was no, or little, risk of reoffending. She emphasised the evidence of Ms Barrett and set out a number of facts which she said I should take into account to which I have referred below."
"... the propensity to re-offend is a crucial factor, which must be taken into account. If there is no or a low risk of propensity to re-offend then deportation is not a proportionate response."
She drew the Adjudicator's attention to a number of cases, including Bousignore, as authority for that proposition. In relation to proportionality, her submission said:
"... we would ask the Adjudicator to also have regard to the following:
1) The Criminal Court who sentenced the appellant made no recommendation for deportation ...
2) Consideration must be had to the fact the appellant maintains his innocence. Whilst accepting that the Adjudicator cannot go behind the decision making of the Criminal Court which convicted the appellant, it should be borne in mind that this was not a crime involving physical violence.
3) The appellant has been in the United Kingdom for 23 years. This is a considerable length of time. He has in fact spent the greater portion of his adult life in this country.
4) At the age of 51 it would prove difficult for the appellant to re-adjust to life in Germany. He has no friends nor family there other than an elderly mother.
5) Conversely, the appellant has a network of friends in the UK who have stood by him and have evidenced their willingness to support him since his release from prison.
6) Indeed, the appellant has been offered employment in the UK as a result of these contacts. We submit that with a criminal record, no friends or contacts in Germany and no proper employment record for the past 20 years, it would prove extremely difficult if not impossible for the appellant to find or keep a job in Germany. The likelihood therefore is that he faces unemployment and no social support network. It is difficult to see how the appellant could establish himself in society in these circumstances.
7) In the UK however, the appellant has the opportunity to re-integrate and make a valuable contribution."
"In determining this appeal I take note of the criteria in paragraph 364 of HC395 and the determinations of judgments to which I have been referred by both Miss Sigley and Miss Benjamin. While I note that the appellant has been in Britain since 1979 I have no evidence of his employment during that time - there is no evidence that he paid tax or national insurance contributions. He owns no property here. He has no family here - I note that Miss Radmore did not attend the hearing and I consider that the appellant's claim that he hopes to get back together with her is not a claim on which I can place weight. I have taken into account the letter from the brother of Miss Radmore and the fact that he has received offers of employment but given his lack of an employment record I place little weight on these offers although I note that attached to Miss Benjamin's submissions was a letter from Southern and Continental Collection Services saying the appellant was working for them and he was therefore not working for one of the potential employers when letters were placed before me at the hearing. I place no weight on assertions made by Miss Benjamin that the court made no recommendation for deportation, as there is no evidence that that point was considered, or on the fact that he has maintained his innocence as he has been convicted. I do not see that the appellant would be banned from work in Germany because he has maintained no contacts there - he would be able to use his skills to apply for work as it appears he did when he obtained the job he now has here. I find therefore that there is little to weigh against the fact that this appellant had been sentenced for a particularly serious crime - the sentence of 12 years reflects that this was an aggravated theft which was combined with the threat of violence. I note the judgment of the Court of Appeal in Marchon and find that the fact that the risk of reoffending is not high does not outweigh the public interest in this appellant's deportation. He is being deported not to deter others from similar crimes but because the seriousness of the crime is such is that it is in the public interest that they should be protected from even a small risk of such a crime being committed again. Accordingly I dismiss this appeal."
"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."
The court also considered the meaning of public policy in article 48.
"In so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national authority to the concept of public policy presupposes, in any event, 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."
"The deportation of an EC national can be justified only by the existence of 'a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society' - see R v Bouchereau... And even if such a threat exists, deportation, because it interferes with the fundamental right of free movement of workers (article 48, now 39, of the Treaty of Rome) and the right to respect for private life (article 8 of the Convention), must be proportionate. The requirement for proportionality in this context means that deportation must be appropriate and necessary for the attainment of the public policy objective sought - here the containment of the threat - and also must not impose an excessive burden on the individual, the deportee."
"This is an offender whose propensity to offend may still exist, but whose opportunities to offend are now small. What really matters is the seriousness of what he has already done to his own children. The family factors are not strong: his parents, with whom he is living as a condition of his bail, have other children here to lean on. He is not without relatives in Sicily, and he has business skills which will travel with him. If it stopped here, I would hold that deportation was a proportionate response."
Sedley LJ then went on to consider the further factor, which he said was one of real weight, that that appellant had lived in this country since he was a small boy. Simon Brown LJ adopted a similar approach: see paragraphs 46 to 48 of his judgment. Ward LJ agreed with both judgments.
"The Court has thus concluded that Community law precludes the expulsion of a national of a Member State on general preventative grounds, that is to say expulsion ordered for the purpose of deterring other aliens ..."
In paragraph 62 it said:
"In the main proceedings, however, it is clear from both the grounds of the order for reference and the very wording of the second question submitted that, in the view of the national court, the measure adopted to expel Mr Nazli is capable of justification only on the basis of general preventative grounds having the sole objective of deterring other aliens."
Thus, the court concluded that expulsion was contrary to Mr Nazli's treaty rights.
"While a Member State may consider that the use of drugs constitutes a danger to society such as to justify, in order to maintain public order, special measures against aliens who contravene its laws on drugs, the public policy exception that all derogations from a fundamental principle of the Treaty must nevertheless be interpreted restrictively, so that the existence of a criminal conviction can justify expulsion only 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..."
He seeks to distinguish cases such as Marchon, involving drug importation, or cases where serious sexual offences have been committed, which any right thinking person would find utterly repugnant, from the present case.