MG and VC (EEA Regulations 2006; "conducive" deportation) Ireland  UKAIT 00053
ASYLUM AND IMMIGRATION TRIBUNAL
Date of hearing: 23 May 2005
Date Determination notified: 03 July 2006
Senior Immigration Judge Jordan
|MG and VC||APPELLANT|
|Secretary of State for the Home Department||RESPONDENT|
DETERMINATION AND REASONS
(1) The Immigration (European Economic Area) Regulations 2006 contain the law relating to all EEA appeals dealt with from the date of the date of their commencement: the old Regulations are not applicable to the old appeals; (2) A decision to deport an EEA national is a decision "under" the Regulations and is therefore a "relevant decision" for the purposes of them, however it is expressed; (3) Regulation 21 (and the provisions of Directive 2004/38/EC) may make it more difficult for the Secretary of State to remove or deport an EEA national on the ground of criminal conduct than appeared to be the case previously.
"1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.
2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.
"Recourse by a national or authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society."
"Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy."
"Permanent right of residence
15. (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
(e) a person who was the family member of a worker or self-employed 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 returned the right of residence.
(2) Once acquired, 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) But this regulation is subject to regulation 19(3)(b)
Exclusion and removal from the United Kingdom
19. (1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21
(3) Subject to paragraph (4) and (5) [which are not relevant in these appeals], a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if
(a) he does not have or ceases to have a right to reside under these Regulations; or
(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
Decisions taken on public policy, public security and public health ground
21. (1) In these 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 which 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
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention of 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 interests 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.
Person subject to removal
24. (1) This regulation applies to a person whom it has been decided to remove from the United Kingdom in accordance with regulation 19(3).
(3) Where the decision is under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly.
Decisions to remove under the 2000 Regulations
4. (1) A decision to remove a person under regulation 21(3)(a) of the 2000 Regulations shall, after 29th April 2006, be treated as a decision to remove that person under regulation 19(3)(a) of these Regulations.
(2) A decision to remove a person under regular 21(3)(b) of the 2000 Regulations, including a decision which is treated as a decision to remove a person under that regulation by virtue of regulation 6(3)(a) of the Accession Regulations, shall, after 29th April 2006, be treated as a decision to remove that person under regulation 19(3)(b) of these Regulations.
(3) A deportation order made under section 5 of the 1971 Act by virtue of regulation 26(3) of the 2000 Regulations shall, after 29th April 2006, be treated as a deportation made under section 5 of the 1971 Act by virtue of regulation 24(3) of these Regulations.
5. (1) Where an appeal against an EEA decision under the 2000 Regulations is pending immediately before 30th April 2006 that appeal shall be treated as a pending appeal against the corresponding EEA decision under these Regulations.
(2) Where an appeal against an EEA decision under the 2000 Regulations has been determined, withdrawn or abandoned it shall, on and after 30th April 2006, be treated as an appeal against the corresponding EEA decision under these Regulations which has been determined, withdrawn or abandoned, respectively.
(3) For the purpose of this paragraph
(a) a decision to refuse to admit a person under these Regulations corresponds to a decision to refuse to admit that person under the 2000 Regulations;
(b) a decision to remove a person under regulation 19(3)(a) of these Regulations corresponds to a decision to remove that person under regulation 21(3) of the 2000 Regulations;
(c) a decision to remove a person under regulation 19(3)(b) of these Regulations corresponds to a decision to remove that person under regulation 21(3)(b) of the 2000 Regulations, including a decision which is treated as a decision to remove a person under regulation 21(3)(b) of the 2000 Regulations by virtue of regulation 6(3)(a) of the Accession Regulations;
(d) a decision to refuse to revoke a deportation order made against a person under these Regulations corresponds to a decision maker to refuse to revoke a deportation order made against that person under the 2000 Regulations, including a decision which is treated as a decision to refuse to revoke a deportation order under the 2000 Regulations by virtue of regulation 6(3)(b) of the Accession Regulations;
(e) a decision not to issue or renew or to revoke an EEA family permit, a registration certificate or a residence card under these Regulations corresponds to a decision not to issue or renew or to revoke an EEA family permit, a residence permit or a residence document under the 2000 Regulations, respectively."
"15. In carrying out he balancing exercise which applies I have looked first at the circumstances of the offence for which the Appellant was imprisoned. In his sentencing remarks Mr. Justice Goldring said
'as you now appreciate, you became involved in a serious robbery. In the middle of the afternoon you went into a shop: you were armed with a steak knife; you threatened the shopkeeper with it; you took money. I accept that you were drunk. The effect on the shopkeeper has been considerable. She says in her statement "I feel this incident has changed my life and that I now lack confidence".'
16. The pre-sentence report made reference to the Appellant's military service career including two tours of duty in Lebanon with the UN Peacekeeping Force, but reference was also made to the Appellant's problems relating to alcohol abuse which had contributed to the breakdown of his marriage and difficulties in other personal relationships. The probation officer who prepared the report assessed he risk of re- offending as low. However, the pattern of offending, starting late but progressing swiftly to the current serious offence was a cause for concern. The probation concluded that if the Appellant was indeed to benefit from the inevitable prison term he would need to serve a fairly substantial term., enabling him to get access to sustained help. It was against that background that the Appellant was sentenced to 4 ½ years.
18. I note that the Appellant has been granted early release on licence on two occasions but on each occasion he broke the terms of his licence and was returned to prison.
21. It appears that the Appellant has behaved well while in prison.
He has a good attendance record and has developed very good relationships with PE staff and other gym users.
The Appellant is described as punctual, polite and courteous and is enthusiastic and well motivated. He acts on his own initiative ensuring that facility areas and equipment is working effectively.
23. I formed the view that the Appellant has a clear insight into his drink related problems which he was perfectly willing to acknowledge. During cross-examination the Appellant acknowledged that all his problems were due to excessive drinking. He said that drinking would conflict with his fitness training and that he was determined to take advantage of whatever help was available to ensure that there was no repetition. The Appellant said that he had receive considerable assistance from a counsellor while in prison. He said upon his release he would go to Alcoholics Anonymous for help if that were necessary and that he was determined not to return to his former ways.
26. I am satisfied from all the evidence which I heard and read that the Appellant is motivated to lead an industrious and crime free life on his return from prison. A great deal will undoubtedly depend on his ability to refrain from alcohol abuse but I am satisfied that there are good reasons to suppose that the Appellant has both the motivation and the ability to obtain and professional help in order to obviate any risk that might exist.
"Although there is no clear evidence that you will re-offend, the offence for which you have been convicted is considered to constitute a threat to the requirements of public policy on the basis of conduct alone."
"there is no likelihood she will commit further offences or in some other way infringe public security or policy".
C M G OCKELTON