England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		1st May 2008

1. LORD JUSTICE DYSON:

Introduction

2. The claimant is 64 years of age. He is a British citizen who has lived in the Netherlands with his Dutch wife and two children who are 13 and 14 years of age. On 2nd December 2005, he was sentenced to 16 years' imprisonment in the United Kingdom for importing Class A drugs (9.37 kilograms of diamorphine at 100 per cent purity). He requested to be returned to the Netherlands to serve the remainder of his sentence. This request was refused by the Justice Secretary. The refusal decision is challenged in these proceedings on the grounds that it constitutes a disproportionate interference with his rights under Article 8 of the European Convention on Human Rights (ECHR).

The facts

3. Prior to receiving the sentence of imprisonment, the claimant had lived in the Netherlands for 15 years, 13 of which were spent with his Dutch wife and his two daughters. There was a co-accused at his trial, Mr Javadzadeh, a Dutch national, who also received a sentence of 16 years' imprisonment. The claimant is currently serving his sentence in HMP Brixton. He will be eligible for parole in 2013 and will be automatically released on licence in 2016.
4. The claimant's wife and children are able to visit him only occasionally. They are not entitled to any financial support under the Assisted Prison Visits Scheme. He suffers from two medical conditions. As a result of problems in treating a detached retina, he has been advised, he says, that he has probably permanently lost the sight of his right eye. He also suffers from paroxysmal atrial fibrillation, a heart condition.
5. In April 2006, he requested repatriation to the Netherlands to serve the remainder of his sentence in that country. Mr Javadzadeh made a similar request which was successful. He has since been returned to the Netherlands and been released in accordance with Dutch law. On 30th November 2006, the Dutch authorities wrote to the National Offender Management Service (NOMS) saying that they were willing to accept the claimant on transfer, and that they intended to convert the sentence under Dutch law upon transfer. By a letter dated 19th December 2006 NOMS refused the claimant's request. They said:

"The transfer of prisoners between the United Kingdom and The Netherlands takes place in accordance with the provisions of the Council of Europe Convention on the Transfer of Sentenced Persons. The Convention does not confer on a prisoner any automatic right to transfer; the consent of both States involved as well as that of the prisoner concerned is required before transfer can take place.

In reaching the decision to refuse your request the Secretary of State took into account that you were normally resident in The Netherlands at the time you committed your current offence. He also took into account that you are married to a Dutch national and that she and your two children are resident there. However, the Secretary of State also took into account that you are a British national; that you would be likely to receive a significant reduction in time to serve as a consequence of transferring to The Netherlands, and that as a British national you would be free to return to the UK at a time when you would otherwise have been required to be detained in a prison here without any form of supervision. The Secretary of State did not believe that it was acceptable that as a British national you should be able to be released early and be able to return at will to the UK."

6. Following further representations on behalf of the claimant, NOMS wrote again on 2nd April 2007 maintaining the refusal to repatriate. They said:

"As with all requests for repatriation, Mr Shaheen's request was considered on its individual merits. As I explained to Mr Shaheen in my letter of 19 December 2006, the Secretary of State took into account that he was normally resident in The Netherlands, and that his wife and two children lived there. However, the Secretary of State was concerned that as a consequence of his transfer to The Netherlands he would be likely to receive a substantial reduction in time to serve. While a reduction in time to serve would not normally, in itself, result in a refusal of a transfer request, the Secretary of State was concerned that as a British national Mr Shaheen had an absolute right to return to the United Kingdom at a time when, but for his transfer, he would have been required to be detained in a prison here. If Mr Shaheen were to exercise his right to return he would not be subject to any form of supervision.

You have raised the comparison between the refusal of Mr Shaheen's application for transfer to The Netherlands and the approval of the transfer request of Ahmed Jadavzadeh, one of his co-defendants. Mr Javadzadeh was subsequently returned to The Netherlands and has been released from custody as a result of re-sentencing by the Dutch courts.

As you know, Mr Javadzadeh is a Dutch national and prior to his transfer to The Netherlands he was served with a Deportation Order. He therefore has no automatic right of return to the United Kingdom. He is barred from returning to the United Kingdom while his Deportation Order remains in force. Mr Javadzadeh can, of course, apply to have the Deportation Order against him revoked at any time. Although the deportation of a European Economic Area citizen is a matter of Community law it remains a matter for the Secretary of State, in applying that law to determine whether or not a deportation order should be maintained or revoked. As a consequence, Mr Javadzadeh does not have an automatic right to return to the United Kingdom. This clearly distinguishes his case from that of Mr Shaheen who can return at will to UK".

7. On 8th May, the claimant's solicitors wrote to NOMS providing further information about his ill-health including that he was awaiting complex heart surgery. He was concerned as to his ability to recuperate in the hospital at Brixton Prison.
8. On 14th August, NOMS replied that they had considered the request but had decided to uphold their original decision to refuse it. They said:

"Although resident in The Netherlands, Mr Shaheen is a British national with an unfettered right to enter the United Kingdom at any time. If transferred to The Netherlands Mr Shaheen would be likely to receive a significant reduction in time to serve solely as a result of his transfer. This means that he would be able to return to the United Kingdom at a time when, but for his transfer, he would have been required to be detained in prison here. If he chose to exercise his right of return he would not be subject to any form of supervision.

In reaching his decision to refuse Mr Shaheen's application the Secretary of State gave full consideration to Mr Shaheen's family and residency links with The Netherlands but concluded that Mr Shaheen's right to return to the UK at any time following his release from custody in The Netherlands outweighed these considerations. Mr Shaheen has demonstrated through his index offence his willingness to travel to the United Kingdom to engage in criminal activity here while resident in The Netherlands.

You have mentioned in your letter that Mr Shaheen is in ill-health and that he has declined treatment for his condition pending resolution of his application for transfer. It would appear from your letter therefore that appropriate treatment from Mr Shaheen's medical condition is available in the United Kingdom and that it is not necessary to transfer him to The Netherlands in order for him to receive treatment not available here. You may be aware that Mr Shaheen has been suffering from ill health for some time and that he was in poor health at the time he committed his offence; a fact that was brought to the attention of the judge during the trial but for which he declined to give any credit when passing sentence.

In light of your representations the Secretary of State has reconsidered his earlier decision to refuse Mr Shaheen's application for transfer. He has taken into account Mr Shaheen's family and residency links with The Netherlands. However, he believes that notwithstanding these links it would not be appropriate to approve the request for transfer. Mr Shaheen would be likely to receive a significant reduction in time to serve as a consequence of transfer. As a British national he would be able to return to the United Kingdom unsupervised at a time when, but for his transfer, he would be required to be detained here. Although Mr Shaheen has indicated that he does not wish to return to the UK, he has demonstrated through his previous actions his willingness to travel to the United Kingdom from his place of residency to engage in criminal activity here. The Secretary of State accepts that Mr Shaheen suffers from poor health. However, he was in poor health when he committed his offence, a fact that was brought to the attention of the court. In addition, he has no reason to believe that appropriate medical treatment is not available in the United Kingdom."

9. On 23rd August, the claimant's solicitors wrote a letter before claim to NOMS. They made yet further representations and requested a reconsideration of the decision of 14th August. NOMS replied on 27th September maintaining their earlier position.

The legal framework

10. The transfer of prisoners between the United Kingdom and The Netherlands is governed by the Council of Europe Convention on the Transfer of Sentenced Prisoners 1983 ("the Convention"). There are three parties to any repatriation: the sentenced prisoner; the sentencing State (in this case the United Kingdom); and the administering State (in this case The Netherlands). The consent of all three is required before a transfer can occur.
11. Article 2 provides:

"1 The Parties undertake to afford each other the widest measure of co-operation in respect of the transfer of sentenced persons in accordance with the provisions of this Convention.

2 A person sentenced in the territory of a Party may be transferred to the territory of another Party, in accordance with the provisions of this Convention, in order to serve the sentence imposed on him. To that end, he makes express his interest to the sentencing State or to the administering State in being transferred under this Convention."

Article 3, so far as material provides:

"1 A sentenced person may be transferred under this Convention only on the following conditions:

a if that person is a national of the administering State.

b if the judgment is final;

c if, at the time of receipt of the request for transfer, the sentenced person still has at least six months of the sentence to serve or if the sentence is indeterminate;

d if the transfer is consented to by the sentenced person or, where in view of his age or his physical or mental condition one of two States considers it necessary, by the sentenced person's legal representative;

e if the acts or omissions on account of which the sentence has been imposed constitute a criminal offence according to the law of administering State or would constitute a criminal offence if committed on this territory; and

f if the sentence and administering States agree to a transfer."

12. Where a person is repatriated, the administering state has two options in dealing with the unexpired part of the sentence: (i) continued enforcement of the existing sentence whereby the administering State is bound by the legal nature and duration of the sentence as determined by the sentencing State, subject to adaptation in certain circumstances (Article 10); and (ii) conversion of the sentence by re-sentencing subject to certain qualifications (Article 11).
13. The Explanatory Report to the Convention states of itself that it does not constitute an instrument providing an authoritative interpretation of the text of the Convention "although it may facilitate the understanding of the Convention's provisions." Paragraph 8 of the Report states that the purpose of the Convention is "to facilitate the transfer of foreign prisoners to their home countries". Paragraph 9 is in these terms:

"In facilitating the transfer of foreign prisoners, the convention takes account of modern trends in crime and penal policy. In Europe, improved means of transport and communication have led to a greater mobility of persons and, in consequence, to increased internalisation of crime. As penal policy has come to lay greater emphasise upon the social rehabilitation of offenders, it may be of paramount importance that the sanction imposed on the offender is enforced in his home country rather than in the State where the offence was committed and the judgment rendered. This policy is also rooted in humanitarian consideration: difficulties in communication by reason of language barriers, alienation from local culture and customs, and the absence of contacts with relatives may have detrimental effects on the foreign prisoner. The repatriation of sentenced persons may therefore be in the best interests of the prisoners as well as of the governments concerned."

14. Paragraph 10 states that the Convention distinguished itself from the European Convention on the International Validity of Criminal Judgments in four respects of which the fourth is expressed in these terms:

"The Convention confines itself to providing the procedural framework for transfers. It does not contain an obligation on Contracting States to comply with a request for transfer; for that reason, it was not necessary to enlist any grounds for refusal, nor to require the requested State to give reasons for its refusal to agree to a requested transfer."

15. The Repatriation of Prisoners Act 1984 gave effect to the Convention by making provision for facilitating the transfer of prisoners between the United Kingdom and places outside the United Kingdom.
16. It will be seen that neither the Convention nor the 1984 Act gives any guidance as to what the Secretary of State should take into account in determining whether or not to consent to a transfer of a prisoner.

Grounds of challenge

17. Miss Helen Law submits that the refusal by the Secretary of State to consent to repatriation to The Netherlands is a disproportionate interference with the claimant's rights under Article 8 of ECHR and therefore is unlawful pursuant to section 6 of the Human Rights Act 1998. She submits that the Secretary of State failed to balance correctly three key factors when making his decision, thereby rendering his decision disproportionate. The factors are: (i) the effect that the claimant's detention in the United Kingdom is having and will continue to have on him and his family; (ii) the risk of the claimant returning to the United Kingdom and committing further offences in the next 5 - 8 years; and (iii) the distinction between the claimant and his co-accused who has been repatriated.
18. As regards (i), Miss Law draws attention to the fact that the maintenance of family contacts is an essential aim of the prison system as is recognised by Prison Rule 4 on "Outside Contacts". The impact on the claimant is severe. He sees his children no more than once every 6 months and his wife no more than once every 2 months. Financial constraints prevent more frequent visits. He has understandable concerns about undergoing heart surgery in the United Kingdom when he will not have the benefit of his family around him during what may be a difficult period of recuperation. He will not be eligible for parole until 2013 when he will be 70 years of age. The effect of the Secretary of State's decision is that he will be unable to lead any semblance of normal family life for next 5 - 8 years.
19. As regards (ii), the Secretary of State accepts that it is the claimant's intention to reside in The Netherlands following his release from custody. Miss Law submits that it is not clear what assessment the Secretary of State has made of the risk of the claimant committing further offences in the United Kingdom, but if he has assessed the risk as significant, he has overstated it. She makes the point that the index offence was committed more than 3 years ago at a time when the claimant had not been convicted of any offence in the United Kingdom for about 30 years. There is no evidence that he committed any offences elsewhere during his period. She emphasises the fact that he is now 64 years of age; is now blind in one eye and continues to suffer from the debilitating effects of his heart condition.
20. As regards (iii), the Secretary of State has distinguished between the claimant and his co-accused solely on the basis of the latter's need to apply for his deportation order to be lifted before he can return to the United Kingdom. Miss Law submits that the Secretary State has placed too much weight on this point of distinction. She argues that Article 18 of the EC Treaty creates a presumption in favour of free movement for citizens of Members States between those States. Article 27 of Directive 2004/83/EC which consolidates pre-existing legislation and case law of the ECJ, defines the circumstances in which Member States can restrict rights of entry. So far as material it 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 the 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."

21. Article 32(1) of the Directive provides that any person subject to a deportation order has the right to apply for that order to be revoked after a reasonable time and in any event no later than 3 years after it was made.
22. Miss Law submits that the highest that the issue can be put is that Mr Javadzadeh must apply for the deportation order to be revoked before he can return to the United Kingdom and the burden will be on the State to show why it ought not to be lifted. The fact of his previous conviction is not a reason in itself to lift the order, but it ought to be considered alongside with the factors present at the time of the application (see R v Bouchereau [1978] 1 QB 732:

"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."

23. In the light of the above, Miss Law submits that the Secretary of State's decision was a disproportionate interference with the claimant's Article 8 right to respect for his family life.

The Position of the Secretary of State

24. Mr Parishil Patel accepts that the decision of the Secretary of State infringes the claimant's right to family life under Article 8(1). It is not in issue that the decision was taken in accordance with the law and to achieve the legitimate aim of preventing crime and disorder. What is in issue is whether the decision is proportionate to achieving that legitimate aim. The Secretary of State contends that the decision whether or not to transfer involves considerations of policy (penal and immigration) which he is far better placed to consider than the court.
25. As regards the effects on the claimant's family life of his continued detention, Mr Patel submits that the claimant is able to maintain a family life with his wife and children and receives regular visits from them. It is relevant that the interference with his family life is a consequence of his sentence of imprisonment which was lawfully imposed for a very serious offence committed in the United Kingdom.
26. As regards the risk of re-offending over the next 5 - 8 years, the Secretary of State relies on the fact that the index offence was very serious and involved a high degree of planning and sophistication; he committed the offence while he was resident in The Netherlands; although his previous offences were committed a long time ago, they were numerous and serious (the trial judge in respect of the index offence described the claimant as 'a person with an appalling history and there is every indication that [he had] been living the life of a professional criminal'); the claimant was 61 years of age when he committed the index offence: he is now 64 and he cannot contend that his advanced age diminishes the risk; the claimant was suffering from his heart condition at the time of the index offence; and there is no evidence that he has lost sight in one eye.
27. As regards he his co-accused, it is submitted by Mr Patel that there is a significant distinction between the claimant's circumstances and those of his co-accused. If Mr Javadzadeh posed a risk of committing offences in the United Kingdom, the Secretary of State can deny him entry into the United Kingdom on grounds of public security. On the other hand, the claimant can re-enter at any time irrespective of his risk of re-offending. This is a matter of public policy which the Secretary of State is entitled to take into account.

Discussion

28. The starting point is that the Convention gives the sentencing State an unqualified discretion to grant or withhold its consent to a transfer. The only constraints on the exercise of the discretion by the Secretary of State are that his decision must not be in breach of the Human Rights Act, or be unreasonable in the Wednesbury sense. In the present case, the focus of the argument has been on whether the Secretary of State's refusal is in breach of the claimant's rights to respect for family life under Article 8 of the ECHR. As I have said, it is conceded by Mr Patel that there is an infringement of Article 8(1). The issue is whether that infringement can be justified and whether the Secretary of State's decision is proportionate interference with that right.
29. There is disagreement between counsel as to the extent of the discretionary area of judgment, if any, that should be accorded by the court to the decision of the Secretary of State. Miss Laws submits that the subject matter of the decision is such that the court should not defer to the opinion of the Secretary of State at all. She says that the central issue in the case is the judgment of the Secretary of State that there is a real or significant risk that, if transferred to The Netherlands, the claimant will return to the United Kingdom and embark on serious offending during the period when, if he were not to be transferred, he would be unable to do so because he would still be in custody. She submits that the Secretary of State has no special expertise to assess risks of re-offending. The court is at least as well equipped to make such assessments. For example, the criminal courts do this routinely when deciding whether or not to grant bail. Miss Law also relies on a passage in the speech of Lord Bingham of Cornhill, in R v (Clift) v Secretary of State for the Home Department [2006] UKHL 54, [2007] 1 AC 484 at 33. Lord Bingham said:

"The differential treatment of prisoners serving 15 years or more had, in my opinion, become an anomaly. That would not, in itself, be a ground for holding it to be unjustified. Anomalies are commonplace. But by 2002 it had, in my opinion, become an indefensible anomaly because it had by then come to be recognised that assessment of the risk presented by any individual prisoner, in the application of publicly promulgated criteria, was a task with no political content and one which to the Secretary of State could not (and did not claim to) bring any superior expertise."

30. Mr Patel submits that the court should allow a wide area of discretionary judgment to the Secretary of State. He relies on the fact that the decision has been entrusted to the Secretary of State; and that he is most suited to assess the deterrent effect a refusal to transfer those convicted of serious drugs offences is likely to have on other would-be offenders.
31. It is now well understood that a number of factors will determine the extent to which the court will, if at all, defer to the opinion of a decision-maker: (see, for example, Samaroo v Secretary of State for the Home Department [2002] INLR 55 at 35). An assessment of the risk of reoffending is one which the court undoubtedly has the competence to make. For that reason alone, I would reject Mr Patel's submission that the court should allow the Secretary of State a wide area of discretionary judgment in this case. But I do not accept that the Secretary of State should be allowed no area of discretionary judgment at all. The court is not hearing an appeal from the decision of the Secretary of State. Its role is supervisory: (see Samaroo and the case law referred to at 30 - 34). In my judgment, the Secretary of State should be allowed a degree of discretionary judgment in this case, but it is modest and calls for careful scrutiny by the court.
32. Before I go any further, I need to consider precisely what assessment the Secretary of State made of the risk that the claimant would return to the United Kingdom and reoffend. Miss Laws submits that there is no evidence on this. I agree that in none of the letters to which I have referred did the Secretary of State say in terms at what level he rated the risk. But in his letter dated 14th August 2007, he said:

"Mr Shaheen has demonstrated through his index offence his willingness to travel to the United Kingdom to engage in criminal activity here while resident in The Netherlands."

A little later in the same letter he used the same form of words again. In my view, by saying that the claimant had demonstrated through the index offences his willingness to travel to the United Kingdom to engage in criminal activity here while resident in The Netherlands, he was clearly expressing the opinion that there was a real or significant risk that if transferred, he would return to the United Kingdom to commit further offences. In my view, read in their context, the words cannot bear any other meaning.

33. The only other matter which I should address before I express my conclusion is the significance of two admissibility decisions of the European Commission of Human Rights. They are relied on by Mr Patel in support of the proposition that a case such as that advanced by the claimant can only succeed in exceptional circumstances. The two cases are A v United Kingdom (5712/72) and PK, MK and BK v United Kingdom 19085/91. I need only refer to the second of these decisions because it is later in time and contains the fuller discussion. This case concerned an IRA prisoner imprisoned in custody in England who sought transfer to Northern Ireland to be closer to his family. The complaint was that the refusal to transfer him to facilitate visits from his family was a violation of his rights under Article 8. The decision of the Commission contains the following passage:

"The Commission has also stated that it is of the opinion that Article 8 requires the State to assist prisoners as far as possible to create and sustain ties with people outside prison in order to facilitate prisoners' social rehabilitation. [Then examples are given.]

In the light of these factors, the Commission finds that the applicants' complaints must be held as falling within the scope of Article 8 para 1 of the Convention.

The applicants have submitted that the refusal of temporary or permanent transfer constitutes an interference with their right to respect for their family life. The Commission considers however that the applicants are arguing in effect not that the State should refrain from acting but rather that it should take steps to implement a particular policy. Although the essential object of Article 8 is to protect the individual against arbitrary interference by public authorities, there may be addition be positive obligations inherent in an effective 'respect' for family life [and then examples are given]. In this context, the notion of 'respect' is not clear-cut and its requirements will vary considerably from case to case according to the practices following and the situations obtaining in Contracting States. In determining whether or not such an obligation exists, regard must be had to the fair balance which has to be struck between the general interest and the interests of the individual, [and then examples given].

The Commission recalls that in the present case the first applicant, who is from Northern Ireland, is detained in a prison in England and that he has requested a transfer to facilitate visits from his family, including the second and third applicants. The Commission notes that the first applicant is serving a long term of imprisonment and that the considerable distance involved imposes difficulties in utilising visit entitlements which cannot be said to be negligible.

The Commission notes however that the first applicant is lawfully detained for serious offices committed against the background of a terrorist campaign. The applicant is detained as a Category A, (Exceptional Risk) prisoner. Any transfer would, in the Government's submission, be highly dangerous, increasing greatly the risk of escape and his detention in Northern Ireland would also facilitate his contact with others of his beliefs and increase the potential for covert subversive activity in the prison there.

The Commission also refers to its constant case-law according to which a prisoner has no right as such under the Convention to choose the place of his confinement and that a separation of a detained person from his family and the hardship resulting from it and are the inevitable consequence of detention. [And examples are then given.]

The Commission considers that only in exceptional circumstances will the detention of a prisoner a long way from his home or family infringe the requirements of Article 8 of the Convention [and again examples given].

The Commission finds that no exceptional circumstances arise in this case."

34. Miss Law seeks to escape from the toils of this decision in a number of ways. First, she has drawn my attention to the decision of Gibbs J in the case of Gilbert v the Secretary of State for the Home Department [2002] EWHC 2832 Admin. In that case, the claimant was a highly dangerous category A prisoner detained in a Close Supervision Centre. He wanted to be transferred to another prison and said that the refusal to transfer him violated his rights under Article 8. Gibbs J dismissed the application. It was submitted on behalf of the Secretary of State that the court should only interfere with the decision of the Secretary of State on prisoner transfer in exceptional circumstances. This submission was based inter alia on the Commission decision 19085/91. Gibbs J said at paragraph 38:

"Those cases [including 1908/91] were decided by the Commission of the European Court of Human Rights some years ago. I am inclined to think that there is merit in Ms MacDonald's argument that despite those decisions, the proposition put forward by the defendant should not be elevated to one of law. Rather, the court should here be guided by the House of Lords' decision in Daly."

35. Miss Laws submits that the court should adopt these tentative observations of Gibbs J and apply R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 ie apply the test of proportionality as in other any case where it has to be applied, untrammelled by any constraint of the need to meet exceptional circumstances. The question is simply one of balance and reasonableness.
36. Miss Law also submits that the decision 19085/91 was concerned with a case which had high political overtones where there was a greatly increased risk that, if transferred, the applicant would escape and his detention in Northern Ireland would increase the potential for political activity there. No such considerations exist in the present case.
37. I acknowledge that the present case is very different in complexion from that case. But in my view it is clear that part of the reasoning of the Commission was that the conclusion that the complaint was manifestly ill-founded was that such a conclusion was compelled by the "constant case law". I emphasise the use of the words "The Commission also refers"(emphasis added). In my judgment, this constant case law cannot be brushed aside simply because it was decided some years ago. As Lord Bingham said in (R v Ullah) v Special Adjudicator [2004] UKHL 26, [2004] 2 AC 223 at 20:

"The duty of the national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time. No more but certainly no less".

That is not to say that the test is one of exceptional circumstances any more that there is an exceptional circumstances test when Article 8 is applied in an immigration context. I refer to paragraph 20 in R v Huang [2007] UKHL 11, where Lord Bingham said:

"It is not necessary that the appellate immigration authority, directing itself along the lines indicated in this opinion, need ask in addition whether the case meets the test of exceptionality. The suggestion that it should is based on an observation of Lord Bingham in Razgar above, para 20. He was there expressing an expectation, shared with the Immigration Appeal Tribunal, that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under Article 8 would be a small minority. That is still his expectation. But he was not purporting to lay down a legal test."

In my judgment, mutatis mutandis, that is how the passage in the Commission decision 19085/91 should be understood.

38. But it seems to me that the outcome of the present challenge does not in fact depend on whether exceptional circumstances exist in this case in any event. It depends principally on whether the claimant can succeed in his challenge to the assessment of the Secretary of State that there is a real or significant risk that, if transferred to The Netherlands, the claimant would return to the United Kingdom during the next 5 - 8 years and reoffend. In my judgment, the Secretary of State was reasonably entitled to make such an assessment. I have already referred to the principal points made by Miss Law. In addition to those that I have mentioned, she also relies on the fact that the claimant is regarded as an exemplary prisoner by the prison authorities. He is a Category B prisoner who, on the evidence, would seem to have good prospects of being reclassified as a Category C prisoner. She also warns of the dangers of forming an assessment of risk only on the basis of previous offending.
39. I reach my conclusion for the following reasons. The index offence was of the utmost seriousness, attracting a sentence of 16 years' imprisonment. The assessment of the sentencing judge was that the claimant was a person with an appalling history: he had 14 previous convictions for serious offences committed in the United Kingdom, admittedly more than 30 years ago. The judge said of him that there was every indication that he had been living the life of a professional criminal. The fact that he had been resident in The Netherlands and had suffered from the medical conditions to which I have referred did not prevent him from committing the serious drugs offences of which he was convicted in 2005. I have been shown a letter dated 25th June 2007 by Dr Murgatroyd which describes the claimant's heart condition, his treatment and future options for further treatment. It is clear from this letter that the claimant's condition is being satisfactorily managed with medication. There is no indication that he is now more disabled than he was at the time when he committed the index offence. Finally, there is force in the Secretary of State's point that the fact that he is now 64 years of age does not reduce the risk. If he was able to commit the index offence at the age of 61, it would not seem that his present age is likely to deter him from offending again. In my judgment, these are all powerful points. I reach my conclusion that the Secretary of State was reasonably entitled to assess the risk as he did without allowing him more than a modest area of discretionary judgment.
40. In assessing the proportionality of the decision, I have considered the extent of the interference with the claimant's right to respect for his family life that will result from the refusal to consent to the transfer. I fully accept that serving prisoners have Article 8 rights. But their rights to see members of their families are inevitably and seriously curtailed simply by virtue of their being deprived of their liberty. A decision not to transfer a prisoner to a prison where he will be nearer to his family must be viewed in that light. Even if a prisoner is transferred to a prison closer to his family, he will inevitably only have exiguous rights to see them.
41. I recognise the force of the points made by Nancy Collins in her witness statement about the effect of the claimant's incarceration in the United Kingdom on his two teenage daughters. That is undoubtedly a factor. But even if the claimant were to be transferred to The Netherlands they would only be able see their father occasionally at any rate until he was released.
42. For all these reasons, I am in no doubt that the Secretary of State was reasonably entitled to come to the conclusion that it is fair and proportionate to refuse to consent to the transfer.
43. There remains the issue of whether the Secretary of State was entitled to distinguish between the case of the claimant and his co-accused. The crucial point here is that a deportation order was made in the case of the co-accused, whereas since the claimant is a British subject, no such order could be made in his case. Miss Law submits that the co-accused would have no difficulty in securing a revocation of the deportation order. I have already referred to the case of Bouchereau. Further light was shed in the case of Criminal Proceedings v Calfa [1999] ECR 1-11, on what the ECJ means by a criminal conviction which is evidence of personal conduct "constituting a present threat to the requirements of public policy". In Calfa the ECJ said this having referred to paragraph 35 in the Bouchereau judgment:

"22. In this respect it must be accepted that a member state may consider that the use of drugs constitutes a danger for society such as to justify special measures against foreign nationals who contravene its laws on drugs in order to maintain public order ...

25. It follows that an expulsion order could be made against a community national such as Miss Calfa only if besides her having committed an offence under drugs laws, her personal conduct created a genuine and sufficient serious threat effecting one of the fundamental interests of society."

I should indicate that Miss Calfa had been convicted of possession and use of drugs whilst staying as a tourist in Crete and had been sentenced to 3 months' imprisonment and expelled for life from Greek territory.

44. In my judgment, in opposing a request for revocation of the deportation order, the Secretary of State would be able to say convincingly that the offence of which the claimant was convicted was one which created a genuine and sufficiently serious threat affecting one of the fundamental interests of society.
45. In my view, the different treatment according to the co-accused is soundly based and does not cast doubt on the fairness and reasonableness of the decision which is challenged in this case.
46. For all these reasons I would dismiss this application.
47. MR PATEL: Thank you, I have no application to make.
48. MISS LAWS: Thank you for the expeditious way in which the matter has been dealt with.