Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 84
P790\12	OPINION OF LORD DOHERTY in the petition of NABEEL YUSUF KHAN Petitioner; for Judicial Review of a decision of the Upper Tribunal (Asylum and Immigration Chamber) dated 9 May 2012 ________________

Pursuer: Byrne; Drummond Miller LLP

Defender: Maciver; Office of the Advocate General

29 May 2013

Introduction

[1] The petitioner was born in Pakistan on 27 August 1964. He moved to Germany in 1989. He married his first wife in 1995 but divorced a year later. He married a second wife but the marriage was also of short duration. In 2000 he became a German national. In June 2005 he married for a third time. His wife was IK. She had a young son from a previous marriage. In March 2006 the family moved to Scotland. The petitioner's wife gave birth to their son on 12 June 2006.

[2] On 10 December 2008 the petitioner killed his wife in their home. The assault was witnessed by his stepson. From January 2009 the petitioner made known his wish to plead guilty to culpable homicide but that plea was not acceptable to the Crown. On 4 August 2009 he was convicted after trial of murder. The conviction was quashed on appeal on the ground of a misdirection by the trial judge. Leave to bring a further prosecution was granted. After a re-trial the petitioner was convicted on 28 April 2011 of culpable homicide. The terms of the charge of which he was convicted were:

"on 10 December 2008 at .... you NABEEL YUSUF KHAN did assault [IK], residing there, and did slap her on the face, seize her by the throat, compress her throat and restrict her breathing until she was unconscious whereby she was so severely injured that she died as a consequence of those injuries on 20 December 2008 at Ninewells Hospital, Dundee and you did kill her".

[3] In his report for the Parole Board the trial judge, Lord Matthews, narrated some of the evidence at the trial.

(i) The eye-witness evidence of the petitioner's stepson was that he heard his mother screaming.

"[He] went to see what had happened. In the lobby he saw the accused's right arm was crooked round her neck and his left arm was holding down both of her hands. His mother was using her legs to try to get away from the accused and she was struggling. She could not move her arms then her legs stopped moving and became loose. He asked the accused to stop and leave his mother twice and after the second time he did stop and took his arm off her neck. His mother was unconscious by then. Then the accused grabbed her by the underarms and took her to the living room where he put her on the floor. He sat on his knees and did not say anything for a time. The boy wanted to go and get help and said he was going to do that. The accused said that he thought she was all right and there was no need to go anywhere. Then he asked the boy to get a glass of water which he did. He waited for some time and then phoned an ambulance. That meant that for about ten minutes no one had done anything to his mother. His father sprinkled water on his mother when he was phoning the ambulance people and there was no reaction."

(ii) There was medical evidence that the petitioner's wife was placed on a ventilator and life was prolonged for a time artificially but eventually life was pronounced extinct on 20 December 2008.

(iii) On medical examination of the petitioner a number of scratches and possible bite marks were found on his right arm. The scratches were consistent with fingernail scratches.

(iv) The expert pathology evidence indicated that there was a very superficial abrasion to the skin of the deceased's neck. The cause of death was brain death due to compression of the neck. The mechanism of injury was likely to have been an arm lock. The deceased had suffered from a complete lack of oxygen to the brain for a period. Two or three minutes lack of oxygen was usually fatal, but the possibility of much quicker brain death because of ventricular defibrillation could not be ruled out.

(iv) Evidence had been led from three psychiatrists. Dr Doig concluded that the petitioner was not suffering from diminished responsibility at the time of the offence. Dr Friel and Dr White were of the view that at the material time the petitioner was suffering from an adjustment disorder which had the effect of diminishing his responsibility.

In concluding his report Lord Matthews observed:

"There is no doubt that in the course of an argument he put his arm round her neck and compressed it leading to her death. For all we know she may have dropped dead very suddenly because of ventricular fibrillation.

In any event the jury convicted him of culpable homicide. Realistically they could have found that the attack was not a murderous one and also that he was suffering from diminished responsibility in any event."

[4] On sentencing the petitioner Lord Matthews made the following statement in court:

"You were originally convicted of the murder of your wife [IK] but following a successful appeal you were tried again and ultimately convicted of culpable homicide. There is no way of knowing whether the jury took the view that there was a murderous attack and that you were suffering from diminished responsibility, whether they took the view that the attack was not murderous but that you were fully responsible or whether they thought that the attack was not murderous and that that you were in addition suffering from diminished responsibility. The preponderance of the evidence as it was led before me, whatever may have been the situation at the earlier trial, leads me to the view that I should proceed to sentence on the last of these bases.

However it remains the case that you brought about the death of your wife and that has been the cause of a huge amount of grief for her family. That could be seen in the evidence of her mother and that of her young son, your stepson, who witnessed the events.

Sentencing in cases of culpable homicide is a difficult exercise. The ranges of culpability can be very wide from cases which are akin to murder to cases where it is very slight. Your case I judge to be in the middle of the range. You attacked your wife but I cannot hold that it was a sustained attack given the medical evidence. Nonetheless attack her you did and you must answer for that.

Had this gone to trial in the normal way I would have passed a sentence of 8 years imprisonment. As it is, though, you offered to plead guilty to culpable homicide from the outset and I have to take that into account.

In the circumstances you will be sentenced to a period of 5 years and 4 months imprisonment to run from 11 December 2008 when you were remanded in custody.

You are a German national and in view of the high test which was very fairly set out by the learned Advocate Depute I have decided against recommending you for deportation. This matter will remain to be considered, though, by the Secretary of State."

[5] The petitioner was released on parole on 9 January 2012. His licence expiry date is 10 April 2014. He is unemployed. He has no relatives in Scotland. His son and stepson reside with their maternal grandmother in India. He has four siblings in Germany whom he speaks to very regularly.

[6] On 19 December 2011 the petitioner was served by the Secretary of State for the Home Department with a notice of decision to make a deportation order and with a "reasons for deportation" letter. He was informed that he was to be deported pursuant to the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"), regulation 19(3)(b), on the grounds of public policy/public security. The Secretary of State had concluded that his deportation would be in accordance with regulation 21 of the EEA Regulations and with Article 8 ECHR. The petitioner appealed that decision to the First-tier Tribunal ("FTT"). On 7 March 2012 the FTT dismissed the appeal.

[7] A party may, with leave, appeal to the Upper Tribunal ("UT") on any point of law arising from a decision made by the FTT other than an excluded decision: Tribunals, Courts and Enforcement Act 2007, s.11(1), (3). Permission to appeal may be given by the FTT or, if refused at that stage, by the UT: s. 11(4). The petitioner applied to the FTT for permission to appeal to the UT. That application was refused by the FTT (Judge Manuell) on 23 March 2012. The petitioner then made an application to the UT for permission to appeal. On 9 May 2012 Senior Immigration Judge Warr refused to admit the application (indicating that he would have refused permission to appeal in any event). There is no right of appeal against a judge of the UT's refusal to grant permission to appeal to the UT from a decision of the FTT. The only possible means of challenging such a decision is by petition for judicial review.

[8] The petitioner has presented this petition for judicial review. He seeks reduction of the decision of 9 May 2012. The matter was put out before me for a first hearing.

The Citizens' Directive and the EEA Regulations

[9] Directive 2004/38/EC of 29 April 2004 (the "Citizens' Directive") states:

"...

Chapter VI

Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health

Article 27

General principles

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.

3. In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned on its territory or from the date of reporting his/her presence within the territory, as provided for in Article 5(5) , or when issuing the residence card, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months.

.....

Article 28

Protection against expulsion

1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member 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 20 November 1989.

.....

Article 33

Expulsion as a penalty or legal consequence

1. Expulsion orders may not be issued by the host Member State as a penalty or legal consequence of a custodial penalty, unless they conform to the requirements of Articles 27, 28 and 29..."

[10] The Citizens' Directive was implemented in domestic law by the EEA Regulations. Regulations 15, 19 and 21 provide:

"15.- Permanent right of residence

(1) The following persons shall acquire the right to reside in the United Kingdom permanently-

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

(c) a worker or self-employed person who has ceased activity;

(d) the family member of a worker or self-employed person who has ceased activity;

(e) a person who was the family member of a worker or self-employed person where-

(i) the worker or self-employed person has died;

(ii) the family member resided with him immediately before his death; and

(iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;

(f) a person who-

(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and

(ii) was, at the end of that period, a family member who has retained the right of residence.

(1A) Residence in the United Kingdom as a result of a derivative right of residence does not constitute residence for the purpose of this regulation.

(2) The right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.

(3) A person who satisfies the criteria in this regulation will not be entitled to a permanent right to reside in the United Kingdom where the Secretary of State has made a decision under regulation 19(3)(b), 20(1) or 20A(1).

....

19.- Exclusion and removal from the United Kingdom

....

(3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if-

(a) that person does not have or ceases to have a right to reside under these Regulations; or

(b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21.

(4) A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.

(5) A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.

....

21.- Decisions taken on public policy, public security and public health grounds

(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.

(2) A relevant decision may not be taken to serve economic ends.

(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.

(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who -

(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or

(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles -

(a) the decision must comply with the principle of proportionality;

(b) the decision must be based exclusively on the personal conduct of the person concerned;

(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interest of society;

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e) a person's previous criminal convictions do not in themselves justify the decision.

(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin."

[11] The Directive and the Regulations provide for a hierarchy of levels of protection, based on criteria of increasing stringency, in relation to decisions to remove EEA citizens on grounds of public policy or public security. These are (see LG (Italy) v Secretary of State for the Home Department [2008] EWCA Civ 190, paragraphs 14-15; Batista v Secretary of State for the Home Department [2011] Imm AR 73,[2010] EWCA Civ 896, paragraph 9):

"1) A general criterion that removal may be justified 'on the grounds of public policy, public security or public health';

2) A more specific criterion, applicable to those with permanent rights of residence, that they may not be removed 'except on serious grounds of public policy or public security';

3) The most stringent criterion, applicable to a person 'who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision', who may not be removed except on 'imperative grounds of public security'."

Under all three levels of protection the decision to remove must be taken in accordance with the principles set out in regulation 21(5), and the decision maker must take account of the considerations mentioned in regulation 21(6).

Batista, Tsakouridis and Daha Essa

[12] In Batista v Secretary of State for the Home Department the claimant was a Portuguese national facing deportation. He had been in a relationship with his English girlfriend for several years and they had had a child together. The girlfriend was likely to be a positive influence on him if he continued to reside in the United Kingdom, but she and the child would not follow him to Portugal. His appeal against deportation was dismissed by the AIT on 21 January 2009. The Court of Appeal allowed an appeal, holding that the AIT had failed to give proper consideration to the position of the girlfriend and the child, and to face up to the fact that the likely consequence of deportation would be separation of the family. The case was remitted for reconsideration by the UT. Carnwath LJ made the following obiter observations:

"27. I would add a further possible consideration, although it was not an aspect explored in any detail before us. Even in respect of those deemed sufficiently dangerous to justify deportation under the EEA rules, common sense would suggest a degree of shared interest between the EEA countries in helping progress towards a better form of life. The prospects offered by the relationship with Miss Deane in this country may have been fragile, as the tribunal thought, but in Portugal they would be practically non-existent. Although he has siblings in that country, there seems to have been no evidence that they would be able or willing to offer the support needed to prevent what the tribunal saw as his likely drift back to crime. There may be room for argument as to the relevance of such points under the Directive, but as at present advised I see no reason in principle why they may not be taken into account in the overall balance of proportionality. It will be a matter for tribunal to consider whether they have any materiality in the present case."

[13] In Land Baden-Württemberg v Tsakouridis (Case C-145/09)[2010] I-11979 Mr Tsakouridis was a Greek national who had been born and brought up in Germany and who held a German residence permit of unlimited duration. On the face of things he qualified for enhanced protection under the Citizens' Directive. He was convicted of drug trafficking and sentenced to 6 years 6 months imprisonment. The regional authority determined that he had lost the right to enter and reside in Germany and threatened to expel him to Greece. Mr Tsakouridis challenged the decision. The national court referred a number of questions to the Court of Justice for a preliminary ruling. On June 8, 2010, six weeks before the hearing in Batista, Advocate General Bot delivered his Opinion.

"AG46. The particular features of the present case require not only that the decision contemplated ... comply with the conditions laid down by Directive 2004/38, but that, since it is a decision taken as a consequence of a criminal conviction and after it has been enforced, it observe the fundamental principles concerning the function of criminal sanctions...

AG48. The idea, mooted since ancient times by theologians, philosophers and theorists, that a criminal sanction must contribute to the rehabilitation of the convicted person, is nowadays a principle which is shared and confirmed by all modern legal systems, including those of the Member States. Also, in 2006, the Council of Ministers adopted a recommendation on the European Prison Rules which provides that '[a]ll detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty'. The International Covenant on Civil and Political Rights , adopted by the United Nations General Assembly and signed in New York on December 16, 1966, also provides, in art.10(3) , that [t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.

AG49. The European Court of Human Rights has also held that:

'[o]ne of the essential functions of a prison sentence is to protect society, for example by preventing a criminal from re-offending and thus causing further harm. At the same time, the Court recognises the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment. From that perspective it acknowledges the merit of measures - such as temporary release - permitting the social reintegration of prisoners.'

AG50. Observance of the principle that criminal sanctions must have the function of rehabilitation is indissociable from the concept of human dignity and, as such, I am of the opinion that it belongs to the family of general principles of Union law...

AG94. In the present case, which concerns an expulsion decision applicable on the expiry of the criminal sanction imposed, I consider that the proportionality test takes on a special significance which requires the competent authority to take account of factors showing that the decision adopted is such as to prevent the risk of re-offending.

AG95. In my view, when that authority takes an expulsion decision against a Union citizen following the enforcement of the criminal sanction imposed, it must state precisely in what way that decision does not prejudice the offender's rehabilitation. Such a step, which relates to the individualisation of the sanction of which it is an extension, seems to me to be the only way of upholding the interests of the individual concerned as much as the interests of the Union in general. Even if he is expelled from a Member State and prohibited from returning, when released the offender will be able, as a Union citizen, to exercise his freedom of movement in other Member States. It is therefore in the general interests that the conditions of his release should be such as to dissuade him from committing crimes and, in any event not risk pushing him back into offending.

AG96. In the main proceedings, the classification of the offence and the nature of the sanction imposed are indicators to be taken into account in assessing the fundamental nature, for society, of the interest protected. Similarly, the sanction imposed compared to the maximum possible sentence and Mr Tsakouridis's involvement in the drug-trafficking which led to his sentence are, in my view, further objective factors which will help the national court to determine the degree of seriousness of his conduct. Conversely, in order to achieve that fair balance, it is also necessary to weigh up Mr Tsakouridis's personal circumstances, such as, for example, the fact that his family resides in the host Member State, that he carries on an economic activity in that State and that he has links with his State of origin, as well as the effects produced or the information provided, regarding the degree of reintegration or the risk of re-offending, by the aid, advice and surveillance measures which accompanied his conditional release. The failure of those measures may justify the envisaged expulsion...

AG99. Furthermore, where, as in the present case, the expulsion decision is taken on the expiry of the criminal sanction imposed, the competent national authority must state in what respect that decision is not contrary to the rehabilitation function of the sanction."

[14] In its judgment (delivered on November 23, 2010) the Court of Justice expressly endorsed paragraph 95 of the Advocate General's Opinion:

"50. In the application of Directive 2004/38, a balance must be struck more particularly between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned, assessed if necessary at the time when the expulsion decision is to be made (see, inter alia, Orfanopoulos v Land Baden-Wurttemberg (C-482/01 & C-493/01) [2004] ECR I-5257; [2005] 1 CMLR 18 at [77]-[79]), by reference in particular to the possible penalties and the sentences imposed, the degree of involvement in the criminal activity, and, if appropriate, the risk of reoffending (see, to that effect, inter alia, R v Bouchereau (30/77) [1977] ECR 1999, [1977] 2 CMLR 800 at [29]), on the one hand, and, on the other hand, the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, which, as the A.G. observes in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general."

[15] In R (Daha Essa) v Upper Tribunal (Immigration and Asylum Chamber) & Another [2012] EWHC 1533 (Admin) the claimant was a twenty-three year old Dutch national who had lived in the UK from the age of twelve. At the age of nineteen he was convicted of robbery and sentenced to five years detention. Following his release the Secretary of State decided that he should be deported to the Netherlands. He appealed to the FTT against the Secretary of State's decision. Neither Tsakouridis nor Batista were brought to the FTT's attention. The FTT dismissed his appeal. His applications for permission to appeal to the UT were unsuccessful. He sought judicial review of the UT's decision to refuse him permission. Lang J dismissed that application. In relation to Tsakouridis she observed:

"46. In my judgment, the judgment of the ECJ in Tsakouridis establishes that the decision maker, in applying regulation 21 of the EEA regulations, must consider whether a decision to deport may prejudice the prospects of rehabilitation from criminal offending in the host country, and weigh that risk in the balance when assessing proportionality under regulation 21(5)(a). In most cases, this will necessarily entail a comparison with the prospects of rehabilitation in the receiving country, as illustrated by Batista where the Court of Appeal considered that in the UK the claimant's English girlfriend might provide the support which he needed to avert a 'drift back to crime', whereas such support would be 'practically non-existent' in Portugal."

Lang J went on to hold (paragraphs 47-49) that although the FTT had not expressly addressed comparative prospects for rehabilitation, it was implicit from its reasons that it had taken account of them. She recognised that the reasons did not clearly distinguish between the regulation 21(5) and the Art. 8 proportionality exercises, but in the particular circumstances she was not prepared to rule that the FTT had erred in law in that respect:

"53. I accept that the determination did not distinguish between Article 8 and the Regulations on the issue of proportionality, but I consider the court would be imposing too high a standard of decision-writing on an FTT to find that this amounted to an arguable error of law, particularly when the Claimant's skeleton argument also merged the relevant factors under both Article 8 and the Regulations. The FTT was aware of the distinction since the point was addressed in the Claimant's skeleton argument."

[16] The applicant appealed Lang J's decision. The Court of Appeal allowed the appeal. Maurice Kay LJ, delivering the only judgment, observed (paragraph 6) that the most recent authority which had been produced to the FTT had been Bullale v Secretary of State for the Home Department [2009] 2 WLR 992; that the first suggestion of "a more nuanced approach" in a domestic case had been the obiter passage in the judgment of Carnwath LJ in Batista (paragraph 27); and that the Opinion of the Advocate General and the subsequent judgment of the Court in Tsakouridis had been significant developments (paragraph 8). He continued:

"12. I say at once that I entirely agree with Lang J's interpretation of Tsakouridis. The European dimension, as I have called it, is now part of the proportionality exercise when the Secretary of State seeks to deport an EU citizen. The real issue on this appeal is whether the FTT had regard to it. In my judgment, it did not, which is hardly surprising as its attention was not sufficiently drawn to it..."

The Court went on to find that the FTT had conflated the two proportionality exercises it had required to carry out. Differing from Lang J it held that, even when benevolently construed, the FTT could not be said to have done what Tsakouridis required of it (paragraph 15). Lastly, it opined:

"16. Finally, there is one matter upon which Mr Hall made submissions which I consider to be well-founded. The Advocate General ... opined that it is incumbent upon a primary decision-maker who makes an expulsion decision 'to state precisely in what way that decision does not prejudice the offender's rehabilitation'. Although the CJEU expressly adopted part of paragraph AG95 in its judgment, I do not think that it adopted that part. In my respectful opinion it is overprescriptive. The comparative exercise envisaged by Lang J as the usual corollary of Tsakouridis may well be achieved without such a straitjacket."

The Secretary of State's reasons

[17] The reasons for deportation letter considered whether the petitioner had acquired a right of permanent residence in terms of regulation 15 of the EEA Regulations. It stated:

"In this context, 'residence' means residence within the community. It is not considered that time spent in prison constitutes residence for the purpose of the EEA Regulations...

You were granted an EEA registration certificate on 5 May 2006 therefore there is evidence of residence in accordance with the regulations for a continuous period of 5 years. In light of the information available, it is accepted that you have acquired a permanent right of residence in the United Kingdom. As a result it is necessary to establish that your deportation is warranted on serious grounds of public policy or public security."

It is common ground that the petitioner had not in fact acquired a right of permanent residence. The statement that he had was erroneous. It was corrected by the Secretary of State in a corrective letter dated 2 February 2012. The Secretary of State concluded that having regard to the seriousness of the crime and the risk of re-offending deportation was justified on grounds of public policy/ public security; and that it was justified and proportionate having regard to regulation 21 of the EEA Regulations and Art. 8 ECHR.

The argument before the FTT

[18] The appellant's skeleton argument before the FTT had included the following passage:

"22. In terms of terms of assessing proportionality common sense ... would suggest a degree of shared interest between EEA countries in helping those sufficiently dangerous to justify deportation to progress towards a better form of life. In the present case the appellant is subject to licence conditions and if deported to Germany would lose those conditions ..."

FTT Determination and Reasons

[19] The FTT found that the petitioner had not acquired a right of permanent residence in the United Kingdom. Both parties agree that the FTT was correct to make that finding, and that the petitioner is entitled to only the basic level of protection which the Directive and the Regulations confer on EEA citizens.

[20] The FTT's reasons narrated:

"25. The issue of risk is one for us to determine in considering this appeal. We are entitled to take into account any evidence which we have regarding the issue of risk...

26. We have noted all the positives stated by Mr Winter on behalf of the Appellant. We note however that the decision to release the Appellant on parole was not a unanimous decision, and that the board was split 4:2 in favour of parole. We refer to the report by Perth and Kinross Council dated 7^th July 2011, which was prepared for the Parole Board of Scotland. That report concluded that the Appellant posed a low risk of reconviction, and that areas of concern identified were the nature of the index offence and the defender's (sic) depression. The report also stated that the writer had completed a risk assessment guidance framework RA4, and that showed that the Appellant evidenced a high risk of harm based on the nature of the index offence. The risk of harm related to future intimate relationships. The report then recommended that an additional condition be attached to the appellant's parole conditions. That condition was that the Appellant was not to enter upon any relationship with a female without the prior approval of his supervising officer. Such a condition was in fact made a condition of the Appellant's parole. A letter from the Scottish Prison Service dated 8^th August 2011 referred to an assessment of the Appellant for participation in programmes at HMP Perth. That assessment highlighted that the appellant may benefit from undertaking work surrounding his ability to form and maintain emotionally intimate relationships.

27. We were therefore presented with evidence from the prison service, and from social work, which indicated some concerns relating to the appellant's relationships with females. Those concerns, taken with the extremely serious conviction involving a female with whom the Appellant was in a relationship, led us to the conclusion that the Appellant, notwithstanding his previous good record and his remorse, did pose a present and a future risk to females, and therefore to the public, and therefore the Appellant could be removed from the United Kingdom on the grounds of public policy/public security.

28. In considering whether the decision to remove was proportionate, we had little difficulty in deciding that it was. The Appellant has been in the United Kingdom for a limited period. He was not in employment, and other than his desire to pursue an action against Dundee City Council, he claimed little other reason for remaining in the United Kingdom. There was no evidence of any friends in the United Kingdom, or of particularly strong connections to the United Kingdom. The Appellant had no relatives here. His siblings were in Germany, where the Appellant had spent many of his adult years, and the Appellant's children were in Pakistan [sic].

29. We were therefore satisfied that the decision of the Respondent to remove the appellant was justified on grounds of public policy/public security, taking into consideration the factors detailed in Regulation 21, and for that reason the Appellant's appeal fails."

Applications for permission to appeal

[21] The grounds of appeal attached to the application to the FTT for permission to appeal to the UT included the following ground:

"It is respectfully submitted that the First-tier Tribunal ... erred by failing to allow the appellant's appeal. In particular the Tribunal erred:

...

(iv) by failing to take account or proper account at paragraph 28 in the assessment of proportionality that ... the appellant is subject to a number of licence restrictions which included regular reporting, living at a particular address and keeping the authorities informed of any employment and relationship with females. The FTT failed to take account or proper account that if the appellant breaches any of his conditions he is subject to recall to prison to serve the remainder of his sentence. Further the FTT has failed to take account or proper account that in assessing proportionality common sense would suggest a degree of shared interest between EEA countries in helping those deemed sufficiently dangerous to justify deportation to progress towards a better form of life (see for example Batista v Secretary of State for the Home Department [2011] Imm AR 73). The FTT has failed to take account or proper account that if returned to Germany the appellant would lose the support and supervision that he is currently receiving to improve his life. Esto the FTT has taken account or proper account of the licence conditions, the FTT has failed to supply adequate reasons as to what weight those considerations have played in the findings;..."

The substance of this ground was repeated in the application to the UT for permission to appeal.

Reasons for refusal

[22] In refusing permission Judge Manuell concluded that no arguable errors of law had been shown. The FTT had applied the correct test. It had taken full account of the licence conditions. It had been entitled to find that the petitioner posed a serious to women.

[23] Senior Immigration Judge Warr treated the application as being out of time and refused to admit it. He indicated that had it been in time he would not have admitted it. He held that the FTT had had proper regard to the matters raised by the petitioner and that it took into account all relevant factors going to the issue of risk. In his view there was no arguable error of law.

[24] At the first hearing the Respondent did not seek to suggest that Senior Immigration Judge Warr had been correct to treat the application to the UT as being out of time. Both parties focussed rather on his decision that he would not have granted permission to appeal had the application been admissible.

The petitioner's submissions

[25] Mr Byrne submitted that the UT had failed to recognise that the FTT had gone plainly wrong in a number of respects. He did not suggest that the errors involved "some important point of principle or practice"; he submitted that in the circumstances there was "some other compelling reason" to reduce the UT's decision (Eba v Advocate General for Scotland 2012 SC (UKSC) 1, Lord Hope delivering the judgment of the court at paragraph 48). He suggested that in determining whether the reason was a compelling one account should be taken of the fact that there had not been a "substantive hearing" before the UT, merely refusal of an application for leave to appeal to it (PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73 at paragraph 53; Petition of AHC for Judicial Review [2012] CSOH 147 at paragraph 57).

[26] Mr Byrne argued that it had not been open to the FTT on the material before it to conclude that the petitioner represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. In that connection he founded principally on the fact that it had misconstrued the parole condition relating to relationships with females. While the report prepared by a social worker from Perth and Kinross Council had indeed recommended a condition prohibiting such relationships without permission the condition which the Board had in fact imposed had been: "You shall inform your supervising officer of any relationships entered into between you and any female person." In this connection he also suggested that the FTT had erred in having regard to the fact that a minority of the Parole Board had not been in favour of the petitioner's release on parole.

[27] Mr Byrne further submitted that the FTT had gone plainly wrong in its consideration of the proportionality the petitioner's removal. It had failed to consider the interest of the EU and whether a decision to deport might prejudice prospects of the petitioner's rehabilitation. It had been incumbent upon the FTT to compare the prospects for the petitioner's successful rehabilitation in the United Kingdom and in Germany. It had not done so (Batista v Secretary of State for the Home Department; Land Baden-Württemberg v Tsakouridis; R (Daha Essa) v Upper Tribunal (Immigration and Asylum Chamber)). It had also failed to distinguish between the Regulation 21(5) proportionality exercise and the Article 8(2) proportionality exercise as it ought to have. At best it had conflated the two.

The respondent's submissions

[28] Mr Maciver submitted that judicial review of the UT's decision was not available. The grounds founded upon did not raise any important point of principle or practice, nor did they give rise to some other compelling reason (Eba v Advocate General for Scotland, paragraph 48). That was the test which required to be applied to the present application. It was not correct to apply a less stringent test because there had only been one oral hearing within the tribunal system.

[29] On the material before it, it had been open to the FTT to hold that the petitioner represented a genuine, present and sufficiently serious threat. The petitioner had been assessed as representing a risk of harm related to future intimate relationships and the social work report had recommended that he was not to enter upon any relationship with a female without the prior approval of his supervising officer. The fact that the condition actually imposed was not in precisely those terms was not critical.

[30] While it was true that neither the FTT nor the UT had made reference to the EU interest and the effect of deportation on the petitioner's rehabilitation, it had not been obliged to do so. The issue of comparative prospects for rehabilitation had not been raised before the FTT or in the applications for leave. Tsakouridis had not been brought to the attention of the FTT or to the judges considering the leave applications. Both the decision of Lang J and the decision of the Court of Appeal in Daha Essa post-dated the decisions in the present case. In any event the cases of Batista, Tsakouridis and Daha Essa were distinguishable because in each of them the person subject to removal had become genuinely integrated in the host member state. The petitioner had not become genuinely integrated in the United Kingdom. It was plain on any fair reading of its decision that the FTT had properly considered proportionality under regulation 21(5) and under article 8(2) ECHR. It was notable that at the hearing before the FTT counsel for the petitioner had made clear that the Article 8 claim was subsumed within the proportionality exercise which required to be carried out in terms of regulation 21(5) and was not being pursued independently (paragraph 8 of the FTT's decision).

Discussion and decision

[31] The second-tier appeals approach provides the benchmark for the court to use in the exercise of its supervisory jurisdiction in relation to decisions that are unappealable. It is clear from Eba and from R (Cart) v Upper Tribunal [2012] 1 AC 663 that it is to be applied in circumstances such as the present where the decision challenged is a decision of the UT to refuse permission to appeal.

[32] The exceptional nature of the second appeals criteria is well understood. The "some other compelling reason" limb is a stringent test. The point ought to be one which "cries out for consideration by the court" (Cart, Lord Dyson, paragraphs 131-2). In Uphill v BRB Residuary Ltd [2005] 1WLR 2070 Dyson LJ observed:

"19. ... 'Compelling' is a very strong word. It emphasises the truly exceptional nature of the jurisdiction....

24. (1) A good starting point will almost always be a consideration of the prospects of success. It is unlikely that the court will find that there is a compelling reason to give permission for a second appeal unless it forms the view that the prospects of success are very high. That will usually be a necessary requirement, although as we shall explain, it may not be sufficient to justify the grant of permission to appeal. This necessary condition will be satisfied where it is clear that the judge on the first appeal made a decision which is perverse or otherwise plainly wrong. It may be clear that the decision is wrong because it is inconsistent with authority of a higher court which demonstrates that the decision was plainly wrong. Subject to what we say at (3) below, anything less than very good prospects of success on an appeal will rarely suffice....

(2) Although the necessary condition which we have mentioned at (1) is satisfied, the fact that the prospects of success are very high will not necessarily be sufficient to provide a compelling reason for giving permission to appeal. An examination of all the circumstances of the case may lead the court to conclude that, despite the existence of very good prospects of success, there is no compelling reason for giving permission to appeal. For example, if it is the appellant's fault that the first appeal was dismissed, because he failed to refer to the authority of a higher court which demonstrates that the decision on the first appeal was wrong, the court may conclude that justice does not require this court to give the appellant the opportunity to have a second appeal. There is a reason for giving permission to appeal, but it is not compelling, because the appellant contributed to the court's mistake. On the other hand, if the authority of a higher court which shows that the decision on the first appeal was wrong post-dated that decision, then there might well be a compelling reason for giving permission for a second appeal.

(3) There may be circumstances where there is a compelling reason to grant permission to appeal even where the prospects of success are not very high. The court may be satisfied that there are good grounds for believing that the hearing was tainted by some procedural irregularity so as to render the first appeal unfair. Suppose, for example, that the judge did not allow the appellant to present his or her case. In such a situation, the court might conclude that there was a compelling reason to give permission for a second appeal, even though the appellant had no more than a real, as opposed to fanciful, prospect of success. It would be plainly unjust to deny an appellant a second appeal in such a case, since to do so might, in effect, deny him a right of appeal altogether."

Compelling means legally compelling (PR (Sri Lanka) v Secretary of State for the Home Department [2012] 1 WLR 73, per Carnwath LJ delivering the judgment of the court at paragraph 36). The test is a stringent one but it is sufficiently flexible to take account of the particular circumstances of the case (JD (Congo) v Secretary of State for the Home Department [2012] 1 WLR 3273, per Sullivan LJ delivering the judgment of the court at paragraph 23).

[33] I turn then to the grounds relied upon by the petitioner. In the first instance I find it convenient to consider whether any material errors of law on the part of the FTT have been demonstrated.

[34] I reject the contention that the FTT was not entitled to conclude that the petitioner represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. I agree with Mr Maciver that it was open to it to so find on the material before it. It erred in its narration of the terms of the parole condition; but that factual error does not undermine the essential basis for the conclusion which it reached in paragraph 27. As for the subsidiary point, I do not accept that the existence of a minority view on the Parole Board was an irrelevant factor. Even if, contrary to my view, it was irrelevant, it was not a critical factor in the FTT's decision. On the hypothesis that it was irrelevant having regard to it would not have been a material error of law.

[35] I move on to the proportionality criticisms.

[36] The petitioner made reference to Batista in his skeleton argument. The FTT does not record any reference to the case or the interests of the EU being made during oral submissions. It would be unsurprising if little or no mention had been made of them given that they were very far from major planks of the appeal, and Carnwath's LJ's observations were tentative and obiter.

[37] I do not accept Mr Maciver's submission that the Court of Justice in Tsakouridis was only addressing the situation where the person being removed had become fully integrated in the host member state. The degree of Mr Tsakouridis' integration was undoubtedly high, but I do not read the court's guidance as being restricted to such situations. In my opinion it is of more general application (cf. Daha Essa, per Lang J at paragraph 40). That said, the degree of integration is, of course, likely to be a factor of considerable importance in any proportionality assessment.

[38] Had Tsakouridis been founded upon before the FTT, and had the petitioner argued that his prospects for rehabilitation would be better in the UK than in Germany, it would have been incumbent upon the FTT to consider those matters. The question for the FTT would still have been whether, weighing them in the balance together with all other relevant factors, removal was proportionate.

[39] The fact is that the petitioner did not found on Tsakouridis before the FTT (or in the applications for permission to appeal). It is not surprising that in those circumstances the FTT and the judges who considered the applications for permission to appeal gave it no consideration. It was not contended that, in the circumstances of this case, Tsakouridis and the issues discussed in it were "Robinson obvious" (R v Secretary of State for the Home Department, ex parte Robinson [1998] QB 929, pp. 945G-946D). It is not difficult to see why. On the facts before the FTT the issue of comparative rehabilitation was neither a readily discernible obvious point, nor one which, were it to be argued, would have given the petitioner strong prospects of succeeding in his appeal.

[40] And so to Daha Essa. I bear in mind that in that case neither Lang J (paragraphs 2, 3 and 76) nor the Court of Appeal (paragraphs 4, 15) were applying the second appeal test, because leave to bring the application for judicial review had already been granted. The test they applied when the application came to be considered by them was a less stringent one. On the facts the Court of Appeal held it was not satisfied the FTT had had regard to all the factors regulation 21 required it to consider.

[41] I do not understand the Court of Appeal to have prescribed that decision makers must always formally set out and articulate two entirely separate and discrete proportionality exercises. If, contrary to my understanding, it did, I would respectfully disagree and decline to follow it on that point. Such an approach would be unduly rigid. In every case it is the substance of the reasoning that is important - not the form. In some cases it may be convenient and appropriate to set out matters in the way suggested, but in others it may not. On the facts of this case I am satisfied that the FTT - and the judges who considered the applications for permission to appeal - took proper account of the relevant and material factors which were raised before them.

[42] I return to the second appeal test. It is not contended here that any important point of principle or practice arises. It is suggested that there is some other compelling reason for judicial review of the UT's decision. I am not persuaded that there is.

[43] As the test is sufficiently flexible to take account of the particular circumstances of the case the "provenance" of the decision challenged may in some cases be have a bearing on the test's application. As the court observed in PR (Sri Lanka), (paragraph 53):

"We accept, however, that both the Uphill case ... and the Cart case ... were directly concerned with true second appeals. A slightly less demanding standard may be appropriate where there has been only one level of judicial consideration. As Brooke LJ recognised in the Cramp case [2005] 4 All ER 1014, there is room for some flexibility having regard to the 'provenance of the appeal'. This might in some cases be a factor in the overall evaluation of a 'compelling reason'".

[44] That passage requires to be read in context. It was dealing with an argument that it would be wrong to exclude an appeal under the second appeal test where the UT had heard the case de novo (see paragraph 51). The court reiterated that the second appeal test applied in such circumstances, even though it was not a second appeal in the ordinary sense because the UT had remade the decision (paragraph 55), and there had not been further judicial consideration of its decision. Nonetheless, the process showed the two-tier system working as it was intended.

[45] The passage does not distinguish cases relating to refusals to grant permission to appeal to the UT from "true second appeals". Nor is it authority for the proposition that, as a rule, the second appeal test requires to be applied less stringently in such cases. The passage expressly accepts that the Cart case was directly concerned with "true second appeals". Cart was concerned with refusals of permission to appeal to the UT. So was Eba. So far as the Supreme Court was concerned what was important was that there had been more than one level of judicial consideration and that each applicant had failed at least twice in the tribunal system. Sullivan LJ in JD (Congo), paragraph 32, observed to similar effect:

"In those cases where an asylum-seeker has 'failed twice in the tribunal system' because the UT has either agreed with the FTT on appeal, or has refused permission to appeal against the FTT's decision upon the basis that it contains no arguable error of law, it is likely to be much more difficult to persuade this court on an application for permission to appeal, or the Administrative Court on an application for permission to apply for judicial review, that the legal basis for challenging the UT's decision is sufficiently strong and the consequences for the applicant are so extreme as to amount to a compelling reason for giving permission to appeal, or apply for judicial review, respectively."

For these reasons I find myself in respectful disagreement with Lord Stewart's observations at paragraph 57 of Petition of AHC for Judicial Review.

[46] In the present case it cannot be said that the petitioner has very good prospects of succeeding in an appeal against the FTT's decision. On the contrary, in my opinion prospects are fairly poor (for the reasons already discussed; and having regard, among other factors, to his relatively low integration in the UK, and his strong connections with Germany).

[47] Not only are the prospects of success not sufficiently high, but the petitioner contributed materially to matters being dealt with by the FTT and the UT in the way they were. He did not bring Tsakouridis to their attention. He did not raise the issue of the comparative prospects of rehabilitation in the UK and Germany. He did not ask them to carry out two entirely separate and discrete proportionality assessments: his position was that the Art. 8 claim was subsumed within the proportionality exercise which required to be carried out in terms of regulation 21(5) and was not being pursued independently (paragraph 8 of the FTT's Determination and Reasons). The criticism he now makes about lack of separation/conflation is a clear change of tack. In these circumstances the fact that Da Essa post-dates the relevant decisions is of but little import: at the material times there was authoritative guidance from a Full Chamber of the Court of Justice in Tsakouridis which the petitioner could have founded upon - but did not.

[48] In the whole circumstances I would not have been satisfied that there was a compelling reason for judicial review even if I had been of the view that the prospects of success on an appeal to the UT were very good.

[49] I have reached my decision applying the test set out in Eba and Cart to the particular circumstances of this case. I am clear, applying that test to those circumstances, and taking account of the nature of the judicial consideration which has taken place and the matters considered, that the test is not satisfied.

Disposal

[50] I shall repel the petitioner's pleas-in-law and refuse the petition. I shall reserve meantime all questions of expenses.