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Asylum and Immigration Tribunal Appeal Number: IA/13107/2006
THE IMMIGRATION ACTS
Heard at Field House Determination Promulgated
On 16 March 2007
.......17 August 2007.........
Before
Senior Immigration Judge Allen
Designated Immigration Judge J M Lewis
Mr A Smith
Between
LC
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr R Scannell, instructed by Birnberg Pierce
For the Respondent: Mr T Eicke, instructed by the Treasury Solicitor
DETERMINATION AND REASONS
1. The appellant is a national of Italy. He appealed to the Tribunal against the Secretary of State's decision of 30 October 2006 to make a deportation order.
2. In outline the appellant's history is as follows. His mother is from the Philippines and his father is an Italian. They married in Italy in 1977 and the appellant was born there on 25 August 1980. In February 1984 his mother was granted custody of him and his two brothers and a legal separation from his father as a result of violent behaviour towards her. It seems that the appellant's mother then took the appellant and his siblings to the Philippines, but subsequently she applied for and was granted a residence permit in the United Kingdom as an EEA National exercising Treaty rights and the appellant arrived in the United Kingdom on 4 January 1987.
3. On Friday 8 December 1995 the appellant, with other members of a gang of which he was a member, went to St. George’s School, Maida Vale London as a consequence of a dispute between other gang members and a pupil at that school. In the course of the ensuing altercation the school’s head master, Mr Philip Lawrence, went to tell the pupils to return to school and was confronted by the appellant, who stabbed him in the chest as consequence of which Mr Lawrence died that night. The appellant was tried at the Central Criminal Court and found guilty of murder (having pleaded not guilty) and was sentenced to be detained during Her Majesty’s pleasure. He was also convicted of conspiracy to cause grievous bodily harm and wounding with intent to cause grievous bodily harm and for these offences he received a concurrent sentence of four years detention. The tariff recommended by the Common Serjeant of London and then Lord Chief Justice was twelve years. The Home Secretary did not act on the recommendations in response to decisions in the European Court of Human Rights and the House of Lords that it was not appropriate for the tariff to be determined by a member of the executive in the case of those sentenced to be detained during Her Majesty’s pleasure. The matter came before the Lord Chief Justice on 1 November 2001 and he asked the Home Secretary to impose the tariff of twelve years.
4. In a revised reasons for deportation letter of 7 March 2007 the Secretary of State concluded that the appellant had not obtained permanent residence in the United Kingdom in accordance with the Immigration (European Economic Area) Regulations 2006 and therefore the appropriate test to apply to him was that his removal was justified on the basis of public policy or public security. It was considered however that even if he had shown that he had obtained a permanent right to reside in the United Kingdom in which case the appropriate test would have been that there were serious grounds of public policy or public security and/or that he had shown that he had been resident in the United Kingdom for ten years in which case the appropriate test would be that there were imperative grounds of public security justifying his removal, whichever of these criteria applied the test was satisfied and the decision to deport was in accordance with the law.
5. At a case management review hearing at Taylor House on 31 January 2007 an adjournment was requested on behalf of the Secretary of State since the issue of whether a person in prison could be said to be resident in the United Kingdom was due to be heard by the Court of Appeal in the case of CW (Republic of Ireland) Court of Appeal reference C5/2006/2567, which on 15 November 2006 Mr Justice Sullivan had referred to the Court of Appeal, it having come before him on application for reconsideration under s.103A of the Nationality, Immigration and Asylum Act 2002. The adjournment was refused by the Immigration Judge at the case management hearing and the application was not renewed before us.
6. The hearing before us took place on 15 March 2007. Mr R. Scannell, instructed by Birnberg Pierce appeared on behalf of the appellant. Mr T. Eicke appeared on behalf of the Secretary of State.
7. Mr Scannell made an application for the case to be heard in the absence of the public. Mr Eicke had indicated that he was content for such a ruling to be made. Mr Scannell referred to the fact that this was a case of some notoriety and there had previously been press reaction when the appellant had gone on day release from an open prison. In particular he referred to the memo from Ms Radford, the Governor of HM Prison Ford, dated 25 April 2006, to be found at pages 63 and 64 of Mr Scannell’s bundle. Among others things she referred to the fact that on day release in February 2006 the appellant had been pursued by members of the press and an article appeared in the Sun newspaper three days later. There were further follow-up articles in the Sun, the Daily Express and the Brighton Argus. Ms Radford expressed her deep concern that they were ‘managing offenders by media’ and spending more time playing down risk than explaining their offender management strategies and how those more effectively protected the public than hysterical misinformed articles in the gutter press. The OASys report at p. 27-62 of the appellant's bundle discussed potential press interest issues. The interests of justice would not be served by allowing press reporting or other media reporting of the case. The application was made both with regard to the interests of justice and also to protect the appellant's right to respect for private life.
8. Mr Eicke confirmed that he had no objection to an order being made, though he reminded the Tribunal that under Rule 54, if the order was made in terms of the interests of justice, then it was only possible to exclude members of the public to the extent that it was strictly necessary to do so whereas there were broader powers for exclusion on the basis of the protection of the private life of a party.
9. On consideration we concluded that we were satisfied that the relevant criteria under Rule 54 of the Procedure Rules were made out. Paragraphs 54(3) – (4) state as follows:
‘(3) The Tribunal may exclude any or all members of the public from any hearing or part of the hearing if it is necessary -
(a) in the interests of public order or national security; or
(b) to protect the private life of a party or the interests of a minor.
(4) The Tribunal may also, in exceptional circumstances, exclude any or all members of the public from any hearing or part of the hearing to ensure that publicity does not prejudice the interests of justice, but only if and to the extent that it is strictly necessary to do so.’
10. We were satisfied that it was necessary to protect the private life of the appellant to exclude members of the media from this hearing. In the light of the matters to be found in Ms Radford’s report and the OASys report there were legitimate concerns that the appellant's private life is in need of protection from media scrutiny, and inevitably if there were press reporting of the proceedings that would be jeopardised. We therefore ordered that members of the public other than those directly associated with this case were to be excluded from the hearing. In fact as it transpired it appeared that there were no members of the media or others present who were not directly concerned with the case, and accordingly we proceeded to hear the case in private.
11. Mr Scannell identified what he saw as the areas of disagreement between himself and Mr Eicke. Firstly, there was the question of what the appropriate EU law test was with regard to the issue of permanent residence. He contended that the appellant had rights arising under Article 16(1) of the Citizens’ Directive (Directive 2004/38 EC of 29 April 2004) and this existed based on him being a family member between 1987 and 2001. Also he had put in five years before he went to prison in 1996, so he had spent a total of nine years in the United Kingdom as an EU family member. There was a dispute as to whether, as Mr Eicke would argue, past residence did or did not count as it was a new right under the Directive and it was said that one could not go back beyond the year 2000. Mr Scannell argued that the appellant had the right of permanent residence and this had not been forfeited by his time in prison. Rights were not forfeited during that period.
12. The parties also were in disagreement with regard to the ten years requirement. The Secretary of State would argue that the Directive was to be interpreted as meaning residence whilst at liberty in the community which contrasted with what was argued in Mr Scannell’s skeleton argument. He accepted that the Tribunal was not formally bound by what had been said in MG and VC (EEA Regulations 2006; ‘conducive’ deportation) Ireland [2006] UKAIT 00053, but it was clearly to be treated as authoritative. In that case at paragraph 34 the Tribunal had said that residence included time spent in prison. The Directive simply required ten years residence in a Member State and the Directive could not be rewritten as it was argued the Home Office sought to do. On the Home Office argument the appellant was not resident anywhere. It might not necessarily be the case that one had to reside anywhere, except as a matter of commonsense clearly one did and the appellant had clearly resided in the community.
13. Mr Scannell noted that Mr Eicke in his skeleton argument referred to the appellant's previous lack of integration, as it was argued, and thereby sought to introduce a qualitative element into the residence test. However, in any event on the Secretary of State's case the appellant had been residing for nine years in the United Kingdom. It was not sensible to exclude the further year simply because it was spent in prison. It was necessary to bear in mind the facts of the case. On the Secretary of State's argument any time in prison would lead to a forfeiture of rights. He would later refer to the decision in Aydinli 3-737/03 in this regard.
14. A further area of dispute was whether the appellant met the test even if he were no more than an EEA national who had not established permanent residence let alone ten years residence. Mr Scannell would argue that on the facts it was not possible to say that the appellant fell within the exclusion grounds in Article 27 and Article 28 of the Directive. This was on the basis that it was not possible to rely on previous convictions, and there was also the aspect of Article 27 that required that the personal conduct of the individual must represent a genuine present and sufficiently serious threat affecting one of the fundamentals interests of society. On the evidence all of the risk assessments showed that the appellant would not, even in this category, cross the relevant threshold. The Secretary of State could not show a present and sufficiently serious threat to society on the evidence. As would be seen, that showed that he was low risk only.
15. In this regard it was also argued that in the circumstances in which the appellant could be released, as a lifer, the Parole Board was mandated that it could not direct his release until it was satisfied that he no longer needed to be confined for the protection of the public. These criteria were set out at page 89 of the bundle. Therefore the only circumstances in which he would be released into the community would be when this had been determined. Mr Scannell argued that EU law was mandatory in requiring that the decision not be based on a previous conviction or convictions alone, and it would be remarkable if the Secretary of State could justify the deportation of a person who could only be released under these conditions. The burden of proof of course was on the Secretary of State.
16. Article 28 of the Citizens Directive also required taking into account family circumstances and it would be argued that removal would be disproportionate under Community law.
17. As a fall-back position only, Mr Scannell argued that in any event, even if the Tribunal were otherwise against him, it would be an inappropriate time to assess the appellant’s amenability to deportation. The time for proper evaluation was the time when the appellant came to be released and he was not due to be considered for release until January 2008. The word ‘present’ in the second paragraph of Article 27.2 of the Directive was a matter of concern in this regard. It could not be said to be a present threat at the moment since the appellant was detained. In effect the Secretary of State was saying that a factual assessment must be made now that he would be a present threat in the future. There would be a problem if the Tribunal was asked to assess today what the present threat was. The Secretary of State would seek to deport on the point of release and it would not be possible on behalf of the appellant to raise any future change in circumstances notwithstanding that there would be further evidence of such matters as day releases and the programme that had been set up which was aimed to minimise risk.
18. The appellant had put in a witness statement as had his mother and his brother and two of his friends. Mr Eicke was not proposing to question any of the witnesses. We were not sure whether we might not wish to ask the appellant some questions arising out of his evidence and therefore he gave evidence in chief. He confirmed his name and signed the statement which was previously unsigned. He was currently detained at HMP Ashwell. The contents of his statement were true. He was content for the Tribunal to rely on it as evidence in support of his appeal. He was happy with the content of all the reports. It was the case that he had been said to be at no risk of reoffending and that he had done all that could be expected to address his offending. He was confident he would be able to lead a full and free life outside prison.
19. In the event neither we nor Mr Eicke had any questions for the appellant, and that concluded the evidence on his behalf.
20. Mr Eicke relied on his skeleton argument and also the matters set out in the revised decision letter. As regards Mr Scannell’s opening submissions, he wished to clarify that the dispute was about acquisition of rights rather than forfeiture of rights and with the higher level of protection. On behalf of the Secretary of State it was argue that the appellant had not acquired the rights and therefore the decision in Aydinli was irrelevant. It was concerned with forfeiture of rights already acquired.
21. As regards Mr Scannell’s fall-back position, it was argued that he could not have it both ways. If what was argued was right, the Secretary of State could never decide to make a deportation prior to a person’s release from prison and also would need to extend immigration detention to enable the process of hearing the appeal at the time to occur. The word ‘present’ did not support that.
22. Mr Eicke then referred to his skeleton argument. It was a question of interpretation of the Directive. The submissions at paragraph 8 and thereafter were concerned with the applicable law. The wording of the Directive was implemented almost verbatim by the 2006 Regulations. Mr Scannell had referred to the need to apply a narrow literal construction of the Directive but on behalf of the Secretary of State it was argued that that was not the right approach with regard to acquisition of rights. EU law required a purposive interpretation and hence there were no references in the skeleton argument to the Preamble to the Directive which was important in giving the context of the purpose of the provisions and how it was to operate.
23. MG and VC was of persuasive effect. There was no indication however of detailed argument there on the salient points with which the Tribunal was concerned today. Mr Eicke also argued that Nazli C-340/907 did not overrule Case 37/77 R v Bouchereau [1978] QB 732, and it did not appear that Sullivan J in R (On the application of Schelmz) v Immigration Appellate Authority [2003] EWHC1859 (Admin) had thought so either.
24. The relevant tests were set out in the quotation in the revised reasons for deportation letter at paragraph 11 of the skeleton argument. The question then was which test applied. It was clear from Article 28 of Directive 2004/38, (‘‘The Citizens’ Directive”) the EU law had intended a cumulative increase in protection. The Article had to be read as a whole and with a view to progressive protection being provided for. One could not simply take Article 28(3) and say that a person was entitled to ten years protection if he had not got permanent residence. Paragraph 12 of the skeleton set out the relevant provisions of Article 16(1) of the Directive, stating the test for permanent residence. On its face Article 16.1 assisted the appellant, but regard should be had to the Preamble to the Directive at paragraph 17 and in particular the element requiring compliance with the conditions laid down in the Directive. It was argued that there were two important requirements. The first of these was temporal and the second was qualitative. As regards the former, the question was whether the appellant had resided in the United Kingdom ‘in compliance with the conditions laid down by this Directive’ and this imported a temporal requirement which under the 2006 Regulations had been extended to cover residence both in accordance with those regulations and the predecessor regulations of 2000. This was clearly justified since the EU was establishing the prospective introduction of a new status which had arguably never previously been recognised under EU law nor in many Member States under domestic law. In fact United Kingdom law went beyond what was required by the Directive, in Regulation 15(1)(f)(i) in backdating the temporal provision.
25. Further, with regard to paragraph 7 of the Preamble, the reference to ‘compliance’ took one back to the point that when the appellant was in prison he could not be a worker. Paragraph 16 of the skeleton argument dealt with this point. A person needed to reside for the continuous period of five years as a qualified person or family member of a qualified person. If the summons on behalf of the Secretary of State were right about the temporal aspect of the provision then even under the 2000 Regulations, where the appellant could have got residency, he would not be have been able to do so in accordance with those regulations as he was not a qualified person or a family member of a qualified person. It was accepted that the appellant was an EEA national, but he could not comply with ‘in accordance with these regulations’ provision of Regulation 15(1)(f)(i). The qualifications for a right of residence were set out earlier in those regulations and the appellant did not come within any of those.
26. A further point concerning the qualitative requirement of the Preamble was argued at paragraph 15(b) of the skeleton. This was the point about integration. It could be seen from the decision in Lebon Case 316/85, [1987] ECR 2811 at 2838 that the status of a dependent member of a worker’s family did not presuppose the existence of a right to maintenance. Also, it had been held by the Tribunal in OA (Prisoner – not a qualified worker) Nigeria [2006] UKIAT 00066 that a prisoner was not a qualified worker.
27. Mr Scannell interposed that he would accept that after 2001 the appellant ceased to be a dependent, as a direct descendant, as he was in prison and would not be able to say that he was a dependent of his mother. He did not concede, with regard to OA, however, that a prisoner could not do work of value in prison, and it was not part of this case that one could require rights of residence while in prison.
28. Mr Eicke went on to argue that as the appellant had not worked or lived for five years in accordance with the Regulations during the required temporal period he never obtained the right to permanent residence.
29. With regard to the matter of ten year protection, the same submissions formed part of the submission in that regard. It was a matter of accumulation. If you did not have permanent residence you could not obtain the ten year protection, and reference was made in this regard to Article 28 and to paragraphs 23 and 24 of the Preamble. Mr Eicke argued that this supported his submission that it was an accumulation of protection. For the purposes of satisfying Article 28, a person needed to avail themself of the rights and freedoms under the Treaty and needed to show a greater degree of integration than those who had acquired permanent residence, which the appellant had not done. The evidence did not indicate a heightened degree of integration. Reference was made to page 39 of the appellant's bundle in the OASys report in this regard. The appellant could not have acquired the Article 28(3)(a) protection required via ten years in prison. With regard to the suggestion we put to him that this might operate very harshly, for example in the case of a person who had spent nine years and eleven months in the country and then went to prison, Mr Eicke made the point that it was a retrospective test and this scenario could not happen, as a person would need to await the time of the deportation decision. He stressed the point that this was a matter of acquisition of rights. The applicable threshold was set out at paragraph 22 of his skeleton. Clearly the basic standard of protection was higher than for non-EEA nationals. It was an issue of individual and not general prevention. The refusal letter was clearly written by reference to the facts relating to the appellant and the risk he was said to pose. Article 28 of the Directive provided what was to be taken into account in assessing the proportionality of the decision. The case law on this was listed at paragraph 26 of the skeleton. With regard to Mr Scannell’s point that Bouchereau was overruled by Nazli and that the Parole Board would decide if the appellant was still a risk, on that basis the Secretary of State could never deport a lifer who had been released from prison and was an EU citizen. That could not be right. The fact of a life sentence and that the person would only be released on licence introduced a presumption almost of continuing risk and society’s revulsion at the offence.
30. Mr Eicke then took us to the decision in Bouchereau and also to Al Sabah v IAT [1992] IAR 223, Marchon v IAT [1993] IAR 384 and Goremsandeu v Home Secretary [1996] IAR 250. This line of authority made it clear that it was open to the Secretary of State to decide that certain offences were so serious in the sense of being sufficiently repugnant that the continued presence of the individual in question in the community was unacceptable, irrespective of the issue of whether there was a propensity to commit further offences. It was not accepted that Nazli v Stadt Nurnberg [2000] ECR I-957 overruled what had been said in Bouchereau and applied in these other cases.
31. On the question of risk of reoffending, the Tribunal was referred to what had been said by the Lord Chief Justice at pages 83 and 84 of the appellant's bundle. He accepted that this was in November 2001. More recently there was a Parole Board report at page 71 at paragraph 3 which was dated 8 April 2005. It was not argued that there was a high risk of reoffending but there was clearly a risk at that stage. What was said at the OASys report at page 46 about the low risk of reconviction and the low score had to be seen in the context of the 7% referred to in Schmelz with regard to a less serious offence. The test approved in Schmelz applied in this case. The Secretary of State was entitled to conclude that the appellant was a present and sufficiently serious risk such as to entitle him to decide to deport him under the Citizens Directive.
32. Mr Eicke referred to the Home Office Operational Enforcement Manual at chapter 76, which was to be found at tab 16 of his bundle. In this case release on life licence indicated almost a statutory presumption of a continuing, albeit low, risk of reoffending. It could not be shown that there was no propensity to reoffend even given his good progress. Leaving aside the issue of proportionality for a moment, the Secretary of State was entitled to conclude on the grounds of public security or public policy that he could deport the appellant and the same would be true even if the higher threshold applied.
33. With regard to the proportionality aspect contained within the Directive, as well as being a principle of Community Law this was also of course relevant to Article 8. The decisions referred to at paragraph 31(a) in his skeleton argument were on the basis that family life was not engaged in a case like this, namely one where there was a relationship between an adult appellant and his mother and grown-up siblings. This informed the weight which had to be given in the proportionality argument and the context of EU law. Mr Eicke referred to what had been said by the European Court of Human Rights in Üner v Netherlands [CG] 18 October 2006 which was a case of a relationship between a father and very young children in contrast to the circumstances of this case. The relevant principles applied regardless of whether an alien entered the host country as an adult or at a very young age. There were a number of Contracting States which had legislated or adopted policy rules to the effect that long term immigrants born in those states or who arrived there during early childhood would not be expelled on the basis of their criminal record, but such an absolute right not to be expelled could not be derived from Article 8 of the Convention. The court also considered that even if a non-national had held a very strong residence status and had attained a high degree of integration, his or her position could not be equated with that of a national when it came to the power of the contracting states to expel aliens. The necessary social and cultural links referred to in that decision were lacking in that case.
34. In conclusion, on the evidence in this case the circumstances were not sufficiently different to render the decision disproportionate to the interest to be protected. As was said at paragraph 65 in Üner, it was necessary to weigh up the seriousness of the offence and the possibility of revocation of a deportation order in the future. A fair balance had been struck between the competing interests and deportation would be proportionate to the aim pursued
35. At the outset Mr Scannell in his submissions referred to the fact that the evidence showed that the appellant had profoundly changed. He referred for example to the statement of Mr Hughes, the Deputy Governor of HM Prison Ford, dated 8 March 2007, at page 98 of the bundle.
36. With regard to residence the appellant had completed five years in accordance with Article 16 of the Directive. The conditions set out there were exhaustive. Article 16.1 used the word ‘shall’. There was no qualification there. There was nothing behind what was in Article 16 to qualify the right and the temporal and qualitative argument made by Mr Eicke had no basis there. With regard to Mr Eicke’s argument that it was a new right, and the reference in the Preamble at paragraph 17 to compliance with conditions in the Directive that only if a person was here in accordance with the Directive, including the 2000 retrospective element, there was no interpretative support for that in the provisions. The Preamble made it clear that the Directive was concerned with codifying existing provisions on free movement. It would be very curious if there were a requirement in accordance with the Directive that a person having exercised free movement rights would have to wait five years to obtain residence rights. Also there was no magic in the Preamble. It identified the people who had been free movers, that was all. It should not be sought to interpret Article 16.1 by reference to the Preamble. Also, if the Directive sought to impose as a condition a requirement to have been exercising rights previously, it was hard to see it as different. The Directive gave a new right which was obtained if a person legally resided for five years. It was accepted on behalf of the appellant that legally residing in a EU state probably connoted being in the EU exercising treaty rights, but that was exactly the appellant's situation. He had been here in that capacity between 1987 and 2001 as his mother’s son. As to whether he came within Article 16.1, it was clear that he did, since he was a Union citizen and had resided legally for a continuous period of five years and therefore he had the right of permanent residence. It was of relevance to note that there were qualifying conditions in the Article, for example at Article 16.3 and Article 16.4. The matters set out there were very specific, and did not include time spent in prison. Mr Eicke’s submissions would require the Tribunal to add the further proposition that rights were not acquired by a person who was in prison. It was submitted that the temporal requirement that had been suggested was absurd and found no support in the Directive.
37. Mr Scannell noted that it was also argued on behalf of the Secretary of State that if a person did not satisfy the five years requirement then they could not satisfy the ten years requirement. It seemed this amounted to saying that it was a matter of EU law that in order to have the public security protection from removal a person would have to wait until the year 2010 without the 2000 concession. That could not be right. If it were the case, as Mr Eicke had argued, that there was a justification in the notion of integration, then it should be questioned why, if residence had begun in 1987 through 1996 or 2001, could not the earlier pre-prison years be taken into account.
38. Mr Scannell referred to the letter of 18 January 2007 from the European Commission (reproduced at paragraph 56 below) at the end of his bundle which in effect quoted Article 16.1 and made his point. EU law did not allow additional conditions to be imposed which did not appear in the text, especially where there were express circumstances envisaged in the Directive including how a person would lose residence rights. Mr Eicke’s additional conditions should therefore be rejected.
39. It was common ground that the appellant was a person who was a direct descendant with a right of free movement as a family member and had had that for more than five years. He had not left the Community since arriving in 1987. The point put to Mr Eicke about a person who had lived innocently for nine years and eleven months in a Community state and then went to prison showed the absurdity of the submission made in that regard. The background set out in paragraph 19 of Mr Eicke’s skeleton could not be used to put an interpretative gloss on the words of the Directive. The words of Article 28 itself were clearly important. It was argued on behalf of the Secretary of State that the requirement was one of residence in the community, referring back to the Preamble. It was striking that Article 28.1 referred to integration: if the law did intend to put an interpretative gloss on very clear words elsewhere in the Directive, if it meant anything other than simple residence, it would say so and would do so easily. Also the domestic regulations themselves did not put in an additional requirement as to the nature of the residence. There was no reference in the Regulations to any qualitative integration requirements. Mr Eicke therefore was seeking to rewrite the Directive and the Regulations also. There remained the question of where the appellant resided and whether he had to reside anywhere and it tested the sense of the Secretary of State's submissions. There was nothing to support the Home Office’s argument. It could only be concluded that a person resided in the host Member State. The letter from the Commission in effect said it was impermissible to make additions to Article 28. It was suggested that what was being put forward was a political construction relating to the reason why the appellant had been put back into closed prison and that was the context. The report of the Governor of Ford Prison on this was of relevance.
40. Mr Scannell then referred to MG and VC and in particular at paragraph 34. He referred to Mr Eicke’s argument concerning what was said about Nazli there and that there was no real argument on the point. Mr Scannell offered to produce evidence that in fact there was substantive consideration of these issues, but we declined to see it on the basis that we would decide what view we took of MG and VC without the need to see as weighty the extent to which argument was made on relevant points before the Tribunal there.
41. In any event, Mr Scannell urged the reasoning in Nazli on us in this case.
42. With regard to the question of public security risk, he submitted, it was not accepted that although Article 28.3 enabled Member States to define what was meant by imperative grounds of public security, because the Secretary of State said that a conviction for murder engaged public security that had to be accepted. The Directive acknowledged that issues of security were issues for Member States. The Secretary of State could not simply draw up a list and expect it to be accepted. That went against the genuine and serious threat point in Article 27. It was necessary to assess personal conduct. The appellant had qualified under the ten year rule, having spent ten years while a direct descendant of a free mover and this had been in the United Kingdom and the Secretary of State had failed to show imperative grounds.
43. On the question of the approach to the issues of risk and whether there was a need to show a propensity to reoffend, Mr Scannell put in a copy of Directive 64/221 which was the Directive under consideration in earlier cases such as Bouchereau. He argued that there were material differences in the relevant criteria and in particular referred to the second paragraph of Article 27.2 of the Citizens’ Directive requiring that the personal conduct of the individual represented a genuine, present and sufficiently serious threat affecting the fundamental interests of society. Reliance was placed on what had been said in Nazli in this regard and also in Aydinli and in Orfanopolous C-482/01. It was clear in Nazli that something like a present threat was needed. It was necessary to show a propensity to reoffend. Orfanopolous set out a clear statement of EU principles, and it was said, for example, at paragraph 67, that the existence of a previous criminal conviction could justify expulsion only insofar as the circumstances which gave rise to that conviction were evidence of personal conduct constituting a present threat to the requirements of public policy. The effect of Mr Eicke’s submissions was that even if a person was no longer going to reoffend, they could nevertheless be deported. Past conduct might indicate a present threat but if a person was a reformed character and a minimal risk as in this case, then the Tribunal would need to consider what is or could in these circumstances be the present threat. There was no ECtJ decision where there had not been a propensity to reoffend on the basis of past conduct, and also the wording of the current Directive should be contrasted. Since the appellant's confinement was no longer necessary, the present and serious threat could not be identified. What had been said in MG and VC was correct. Whatever the threshold of protection was, even if the appellant were not able to establish permanent residence or ability to fulfil the ten years requirement, the Secretary of State had not made out his case.
44. Mr Scannell then referred to a number of factual matters relevant to the appeal. He clarified the fact that though the new refusal letter referred to one escorted visit, in fact it was clear from the appellant's statement that he had had two escorted visits and three unescorted visits. At Ford Open Prison he had clearly been in a position of trust. The Governor’s evidence in this regard at page 63 was referred to, including how well he had coped with the hounding by the press. It was argued that paragraph 23 of the revised refusal letter was inaccurate.
45. The appellant's regret and remorse should be accepted and what was said in the various reports on him. The reports set out within the OASys report were all positive. There were no adverse inferences about integration. It had been borne in mind that he had no financial pressures before so that was an unknown problem. As regards the comparison between the risk assessment score and the 7% in Schmelz referred to by Mr Eicke, it should be borne in mind that the highest score in the appellant's assessment was eight to ten on education and so the position could be better than it appeared.
46. The OASys report at page 58 made it clear why there must be a Mappa assessment. The reason for this was the media scrutiny, as ¬was made clear in the report, not risk of harm. This should be contrasted with paragraph 24 of the refusal letter which was somewhat misleading in this regard. The matter was clarified in the summary of the functions of Mappa at page 97 of the appellant's bundle. Even two-and-a-half years ago in 2004 the report on the appellant had been very positive and the Parole Board had been very impressed. Whatever test was applied the appellant should succeed and there was no evidence of a present and sufficiently serious threat as required by Article 27.2.
47. The requirements in the Directive on proportionality broadly reflected Article 8 considerations. The appellant had been in the United Kingdom for most of his life. He knew nowhere else. The evidence of the importance of the family to him should be accepted. The principle set out in Advic was clearly relevant, but it was argued that in this case more than the normal emotional ties could be shown, given the extreme importance of the family to the appellant. He would be returned to a place where he had no one and therefore there would be an interference with his family life. The situation in Üner, referred to by Mr Eicke, was very different. The appellant did not represent a risk or any danger to the public. Mr Scannell reminded the Tribunal that it was for it to find the facts rather than simply exercising a review of the Secretary of State’s decision. He reminded us also of the point he had made about the fall-back position, although he emphasised again that it was a fall-back only.
48. By way of reply Mr Eicke clarified firstly what exactly the OASys report represented, being a living document provided by the probation and prison service staff and a professional assessment provided now for all serious offenders. He clarified the meaning of an extended sentence as referred to at page 58 of the bundle. He also made it clear that the point about an ulterior political purpose had been raised and expressly rejected by Mr Justice Underhill in the judicial review challenge to the recategorisation of the appellant to category C, in the High Court.
49. We reserved our determination.
50. We set out first the relevant applicable European law.
51. The relevant parts of the Preamble to the Citizens’ Directive 2004/38/EC of 29 April 2004 (“the Citizens’ Directive”) state as follows:
‘(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.
(2) ….
(3) Union citizenship should be the fundamental status of nationals of Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all non-Union citizens.
…
(17) Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all the Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming the subject of an expulsion measure.
(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.
(24) Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. In addition, such exceptional circumstances should also apply to an expulsion measure taken against minors, in order to protect their links with the family, in accordance with the United Nations Convention on the Rights of the Child, of 20 November 1989.
The relevant Articles of the Directive state as follows:
Article 16
General rule for Union citizens and their family members.
(1) Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
(2) Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.
(3) Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and child birth, serious illness, study or vocational training, or a posting in another Member State or a third country.
(4) Once acquired, the right of permanent residence shall be lost only through absence from the Member State for a period exceeding two consecutive years.
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 records 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.
4 The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on the grounds of public policy, public security, or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.
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 of 20 November 1989.
52. Though various provisions of the Immigration (European Economic Area) Regulations 2006 (‘the Regulations’) are of relevance, we set out in particular Regulation 15 and Regulation 21.
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 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 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.
(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).
…
Decisions taken on public policy, public security and public health grounds
21 –
(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 a Child adopted by the General Assembly of the United Nations on 20 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 the 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.
(7) ….’
Discussion
53. It is clear from Article 27.1 of the Directive that Member States may only restrict the freedom of movement and/or residence of a citizen of the Union on ‘grounds of public policy, public security or public health’. It is also clear however from Article 28.2 that Member States may not take expulsion decisions against Union citizens who have the right of permanent residence on its territory ‘except on serious grounds of public policy or public security’. If the Union citizen has resided in the host Member State for the previous ten years then an expulsion decision may only be taken against him if it is based on ‘imperative grounds of public security’ as defined by Member States’ in accordance with Article 28(3)(a). There is no dispute that the appellant is a citizen of the Union, and therefore before coming on to the facts in this case it is important for us to decide within which of these regimes he comes in order to decide what are the appropriate criteria applicable to his case.
54. We consider first the question of whether the appellant has acquired the right to reside in the United Kingdom permanently. The argument on his behalf is that he is an EEA National who has resided in the United Kingdom in accordance with the Regulations for a continuous period of five years. This essentially mirrors the wording of Article 16(1) of the Directive. Mr Eicke however argues that this has to be interpreted in the light of paragraph 17 of the Preamble to the Directive in which it is said that a right of permanent residence is established for Union citizens and their family members who have resided in the host Member State in accordance with the conditions laid down in the Directive during a continuous period of five years. He argues that the appellant has not resided in the United Kingdom in accordance with the conditions laid down by the Directive. He makes the point that a right of permanent residence is a new status never previously recognised under EU law. He acknowledges, and this is a matter to which we shall return in due course, that paragraph 6 of Schedule 4 to the 2006 Regulations states as follows:
‘6(1) Any period during which a person carried out an activity or was resident in the United Kingdom in accordance with the 2000 Regulations shall be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these Regulations for the purpose of calculating periods of activity and residence under these Regulations.’
55. He reminds us that the first paragraph of the Preamble states that the rights attaching to citizenship of the Union are subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect. He argues that the appellant has not resided in the United Kingdom for a continuous period of five years in compliance with the conditions laid down in the Directive or in accordance with the Regulations. This is on the basis that his status as a descendant of an EEA National under the age of twenty-one ceased on the 25 August 2001 and that was well before the entering into force of the Directive or the 2006 Regulations and was also clearly less than five years after the coming into force of the 2000 Regulations. Mr Scannell accepts that the appellant did not acquire any other status by which he could have become a qualified person or a family member, bearing in mind the case law on the meaning of dependency, in particular in case 316/85 Centre public d’aide sociale de Courcelles v Marie-Christine Lebon [1987] ECR 2811, nor is he a worker for the purposes of EU law, it having been held in OA (Prisoner – not a qualified worker) Nigeria [2006] UKAIT 00066 that a person is a not a worker while in prison and the appellant had not been a worker prior to his arrest and sentence, nor did he assume an employment relationship while in prison.
56. Mr Scannell argued that it was not a proper approach to the interpretation of the Directive to argue as Mr Eicke had, since it involved reading extra words into it and it was not appropriate to interpret the Directive by reference to the Preamble. Article 16(1) of the Directive was unqualified. The effect of Mr Eicke’s submission would be that a person would have to wait five years from the date of implementation of the Directive in order to acquire rights of permanent residence. Mr Scannell also pointed to the letter, dated 18 January 2007, attached to his skeleton argument, which was from an official, E. Crabit of the European Commission, addressed to Kingsley, Napley Solicitors. This involved a response to a question concerning the interpretation of the notion of permanent residence in the Directive. The official says the following:
‘The Directive only requires for the acquisition of permanent residence that Union citizens have resided legally for a continuous period of five years in the host Member State. Since the Directive does not provide for the condition that the five year residence has to be “on the basis of the Directive” this notion should cover also those persons who have recently become Union citizens and have legally resided in the UK for five years. Otherwise such persons would have to wait for five years from the acquisition of citizenship of the Union which would be an additional condition not foreseen in the text.
I hope this answer is helpful. I should nevertheless point out that this interpretation is that of this Commission service responsible for the Directive and that only the Court of Justice of the European Communities can give a binding interpretation of Community law.’
57. In addition, Mr Scannell emphasised Article 16 paragraph 3 of the Directive, listing various circumstances which are not to affect continuity of residence. He also mentioned Article 16 paragraph 4, which makes it clear that the right of permanent residence once acquired shall be lost only through absence from the host Member State for a period exceeding two consecutive years.
58. We agree with Mr Eicke that the Preamble can and should properly be taken into account as an aid to interpretation of the terms of the Directive. It clearly imports the guidance which is a clear principle of interpretation of European law that a purposive approach must be adopted, and the Preamble provides valuable guidance as to the purposes behind the Directive and is therefore a proper interpretative tool to apply in assessing the meaning of the provisions of the Directive.
59. We consider it is important to bear in mind that the right of permanent residence is a new right. The fact that paragraph 6 of Schedule 4 to the 2006 Regulations in effect backdates the temporal requirement to cover residence in accordance with the 2000 Regulations in no sense weakens that basic point. The provision in the Regulations is designed to cover transition from the 2000 Regulations to the 2006 Regulations, and does not necessarily say anything about the Directive.
60. Clearly the letter from the European Commission official is of some weight, even bearing in mind the very proper caveat to be found in the final paragraph which we have quoted above. In any event we consider it has to be seen in the light of what is said in particular at paragraph 17 of the Preamble where it is made clear that a right of permanent residence should be laid down for Union citizenship and their family members who have residence in the host Member State in compliance with the conditions laid down in this Directive. That seems to us to import a prospective element, since there is no suggestion that the very same conditions to be found in this Directive are also to be found in its predecessor.
61. Clearly Article 16 paragraph 3 lists specific circumstances in which continuity of residence is not to be affected by temporary absence of specific durations, but these are matters relating to residence which has been acquired and do not tell us anything about acquisition of residence rights.
62. In conclusion on this point we agree with Mr Eicke that the appellant has not resided in the United Kingdom for a continuous period of five years ‘in compliance with the conditions laid down in this Directive’ or ‘in accordance with these Regulations’. He therefore does not have the right of permanent residence as set down in Article 16 paragraph 1 and in Regulation 15(1)(a). Nor, we should add, does he come within any of the other subparagraphs of Regulation 15. He therefore does not qualify for the higher threshold of protection against deportation which is set out in Article 28 paragraph 2 of the Directive which provides that a Union citizen or his family members who have the right of permanent residence on its territory may not be expelled by the host Member State except on serious grounds of public policy or public security. The applicable test is that set out in Article 27 paragraph 1 of the Directive which requires that deportation be justified on grounds of public policy, public security or public health.
63. This is, however, subject to the question whether the appellant can satisfy the requirements set out in Article 28 paragraph 3 of the Directive as set out at Regulation 21(4). This precludes an EEA National who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision being expelled except on imperative grounds of public security.
64. Mr Eicke, taking as a starting point his previous submission that the appellant had never acquired permanent residence, contended that the wording of paragraphs 23 and 24 of the Preamble and also the structure of Article 28 of the Directive made it clear that the same preconditions apply in this context as they do to the question of a person who has a permanent right of residence under the Directive. Again there is a reference in paragraph 23 of the Preamble to persons who ‘having availed themselves of the rights and freedoms conferred on them by the Treaty’ have become genuinely integrated into the host Member State, and he also argued that the requirement in paragraph 23 of the Preamble that such persons have become genuinely integrated into the host Member State reflects the increased level of protection offered by the Directive and set out in the Regulations. While in prison the appellant had in no way availed himself of the rights conferred on him by the Treaty, and the background to his offence made it clear that he had in the past shown an inability to integrate into United Kingdom society, and the steps taken in the open prison were designed to reintroduce him slowly to United Kingdom society to assess whether he could or would integrate into that society. There had therefore as yet been no integration into United Kingdom society. Mr Eicke also argued, as set out in the revised refusal letter, that time spent in person could not be said to amount to residence for the purpose of the Directive and the Regulations.
65. Mr Scannell made the point that, given the express mention of the concept of integration at Article 28 paragraph 1, that could have been included as a gloss with regard to the ten year residence point if it had been so wished. It was of significance that it was not mentioned in Article 28 paragraph 3. Nor was it mentioned in the Regulations. The appellant clearly had to reside somewhere, and on Mr Eicke’s argument, he did not reside anywhere other than in prison and that of course was within a Member State. He relied again on what was said in the letter from the European Commission. On Mr Eicke’s argument, if a person had spent nine years and eleven months in a Member State and then just before completing the ten years went to prison, such a person would not be able to acquire the extra level of protection that someone who had resided in a Member State obtained.
66. Dealing firstly with the integration point, as it may be described, we do not agree with Mr Eicke that there is a discrete requirement of integration to be found in the Directive and the Regulations. We read these provisions as requiring no more than ten years residence without an added element of integration. The fact that a person would, under the Regulations, have spent ten years in the Member State would to our mind satisfy the notion of integration to be found in paragraph 23 of the Preamble. Otherwise the notion of integration is a specific aspect to be taken into account under Article 28(1), but we do not read it as an extra hurdle to be surmounted in satisfying the test set out in Article 28 paragraph 3.
67. Otherwise we find ourselves in agreement with Mr Eicke on this point. Again we consider it proper to take account of the matters set out in the Preamble, in particular paragraphs 23 and 24, and conclude that the appellant since 1996 has not availed himself of the rights and freedoms conferred on him by the Treaty. There is however a question of whether the appellant availed himself of his rights and freedoms under the Treaty between 1987, when he arrived in the United Kingdom, and 1996 when he went to prison. The same reason that we have applied above to our conclusion that the appellant has not resided legally for a continuous period of five years in the United Kingdom is in our view equally applicable to the contention that he has resided in the United Kingdom for ten years prior to the expulsion decision. He has not resided in the host Member State for ten years having availed himself of the rights and freedoms conferred on him by the Treaty.
68. There is the further issue of whether a person in prison can be said to be residing in a Member State. Mr Scannell placed reliance on what had been said by the Tribunal in MG and VC (EEA Regulations 2006; “Conducive” deportation) Ireland [2006] UKAIT 00053. There are three particular points referred to in the head note with which that decision was concerned. The first was that the 2006 Regulations contained the law relating to all EEA appeals from the date of commencement and the old Regulations were not applicable to old appeals. The decision to deport an EEA National was a decision ‘under’ the Regulations and was therefore a ‘relevant decision’ for the purposes of the Regulations however expressed. It was also made clear that the provisions of Regulation 21 and of the Directive might 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. Among other things the Tribunal said at paragraph 34 with regard to the second appellant that her residence in the United Kingdom had partly been in prison, but there was no doubt that that constituted ‘residence’ for the purposes of the Regulations. It does not appear from the determination that the point was substantially argued before the Tribunal. It is nevertheless a remark to which we must and do attach weight. Reported determinations of the Tribunal are persuasive, and although not formally binding on us, must, as we say, be given weight.
69. A key question in this regard is what is meant by the word ‘residence’. As we have seen, the Tribunal in MG and VC considered that time spent in prison constituted residence for the purposes of the Regulations. Mr Scannell suggested that a person has to reside somewhere and the appellant could only properly be said to be residing in the United Kingdom, albeit for the last eleven years in prison. However, in our view the concept of residence is essentially a legal construction. The question of where (or whether) a person resides is one of fact albeit perhaps with some degree of mental element involving a wish to stay in that place. Since prison is compulsory, being a prisoner prevents a person from exercising, or showing that he has, the necessary mental element. In 10 Halsbury’s Laws (4th edition) paragraph 107, it is said, in this context: “A mere place of temporary and compulsory detention such as a prison, or temporary residence such as lodgings occupied by a person who has a permanent residence elsewhere, is not sufficient.”
70. As we have noted above, we do not consider that there is an additional requirement of integration to be satisfied, but it is on the basis that he has not been exercising treaty rights since the time that he went to prison that the appellant cannot satisfy the requirements of regulation 21(4)(a). We do not consider ultimately helpful the reliance placed by Mr Scannell on the example we suggested in argument of a person who had been living in the community lawfully for nine years and eleven months and then went to prison who would therefore not be able to fulfil the ten years residence requirement on the above argument. Indeed, as Mr Scannell argued, it might be that that time after nine years eleven months was spent on remand by a person who was subsequently found not guilty. However, as we understood Mr Eicke to argue, by the time a decision was made in the case of such a person, they would have spent a more significant amount of time in prison than simply the month to which we have referred. In any event, it is always the case where a time limit is imposed that there may be hard cases at the margins. That does not preclude a proper finding as to the nature of the factors that must be satisfied in all cases which fall within a particular time limit. The matter is not one that was argued fully before the Tribunal in MG and VC, and though we note and bear in mind the Tribunal's remarks in that case, we are not bound to follow them and we conclude for the reasons set out above that since the appellant was not residing in accordance with the exercise of Treaty rights, he has not satisfied the requirement set out in Article 28 paragraph 3 in that he has not, in the sense in which we understand the Directive and the Regulations, resided in the United Kingdom for the previous ten years prior to the expulsion decision.
71. It follows from the above that the Secretary of State must show grounds of public policy, public security or public health if the decision to expel the appellant is to be justified. In case we are wrong in the above analysis we propose to consider the application of the relevant test to the appellant on that basis and also as if he were a permanent resident and also as if he were able to satisfy the ten year residence requirement.
72. Both counsel addressed us on the relevant European case law as well as on the text of the Directive. In R v Bouchereau [1978] 1QB 732, the defendant, who was a French national working in England, was convicted for the second time for possessing dangerous drugs. The magistrate indicated that he was minded to make a recommendation under s.6(1) of the Immigration Act 1971 for his deportation, and it was argued on behalf of the defendant that the magistrate was precluded from doing so by Article 48 of the EEC Treaty and Directive No. 64/221. The magistrate referred to the European Court of Justice for a preliminary ruling questions including whether under Article 3(2) of that Directive criminal convictions were only relevant insofar as they manifested a propensity to act contrary to public policy or public security.
73. Article 3 of Directive No. 64/221 states as follows:
‘Article 3
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.
3. Expiry of the identity card or passport used by the person concerned to enter the host country and to obtain a residence permit shall not justify expulsion from the territory.
4. The state which issued the identity card or passport shall allow the holder of such document to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.’
74. The Court of Justice said the following at page 761:
‘(2) Article 3(2) of Directive no. 64/221, according to which previous criminal convictions do not in themselves constitute grounds for the imposition of the restrictions on free moment authorised by Article 48 of the Treaty on grounds of public policy and public security, must be interpreted to mean that previous criminal convictions are relevant insofar as the circumstances which gave rise to them are evidence of personal conduct constituting a present threat to the requirements of public policy.’
75. The next case is Al-Sabah v Immigration Appeal Tribunal [1992] ImmAR 223. The appellant in this case was a citizen of Kuwait who sought judicial review of the Tribunal's dismissal of his appeal against the decision of the Secretary of State to deport him following his conviction for drug offences and an attempt, on his arrest, to bribe the police. The Court of Appeal held that the Immigration Rules specifically contemplated the application of different criteria to EEC and non-EEC nationals when deportation was under consideration. It stated at page 231 the following:
‘Secondly, even under Community law, although the mere fact of conviction cannot justify deportation, the seriousness of an offence can. Whether an offence is so serious as to do so is a matter within the discretion of the Secretary of State.’
76. In the next case, Marchon v Immigration Appeal Tribunal [1993] ImmAR 384, the appellant was a holder of dual Indian and Portuguese nationality and, while a consultant psychiatrist in a national health hospital, was arrested for smuggling heroin. He received a long custodial sentence and the Secretary of State decided to deport him on the basis that his deportation would be conducive to the public good. It was accepted that the appellant had no propensity to commit further offences similar to that of which he had been convicted. The Court of Appeal went to on to say at page 389 the following:
‘The offence itself committed by him is an affront to the requirements of public policy in the present case and it involved a disregard of the basic or fundamental or moral tenets of society. One would expect that such an offence would receive an apparently heavy sentence, as this one did. But I do not see that that has any bearing on the quite different question whether the committing of such an offence in its circumstances itself involves a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society and so sufficient to warrant deportation.’
77. Then, in Goremsandu v Secretary of State for the Home Department [1996] ImmAR 250, a case involving a citizen of Zimbabwe who had been convicted of incest, it was said at page 254 in the judgement of Stuart-Smith LJ that in his judgment it was open to the Secretary of State to decide that some offences were so serious in the sense that they were sufficiently repugnant to the generally accepted standards of morality, that the continued presence in the community is unacceptable, irrespective of the propensity to commit further offences of a similar character.
78. Then there is the decision in Nazli v Stadt Nürnberg Case C-340/97. Mr Nazli was a Turkish national who had lived in Germany since 1978 and between 1979 and 1989 was in continuous paid employment. In 1992 he was implicated in a case of drug trafficking and was detained pending trial between December 1992 and January 1994 and then sentenced to a suspended term of imprisonment of twenty-one months, on 20 April 1994. He returned to permanent paid employment in January 1995, but in the meantime his residence permit expired on 31 December 1994 and because of his criminal record he was unable to obtain an extension of that permit. It was held by the Court of Justice that such a person had not ceased to be duly registered as belonging to the labour force of the host Member State and in the circumstances might claim there an extension of his residence permit for the purposes of continuing to exercise his right of free access to any paid employment of his choice under the third indent of Article 6(1) of Decision No. 1/80 of the EEC-Turkey Association Council.
79. At paragraph 57 of the judgment in that case the court referred to the fact that, with reference to Bouchereau, it had consistently been held that the concept of public policy presupposed in addition to the disturbance of the social order which an infringement of the law involved, the existence of a genuine and sufficiently serious threat to one of the fundamental interests of society. The Court went on to say the following:
“58. While a Member State may consider that the use of drugs constitutes a danger for society such as to justify, in order to maintain public order, special measures against aliens who contravene its laws on drugs, the public policy exception, like all derogations from a fundamental principle of the Treaty, must nevertheless be interpreted restrictively, so that the existence of a criminal conviction can justify expulsion only insofar as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy (see, most recently, case C-348/96 Calfa [1999] ECR 1-11, paragraphs 22, 23 and 24).
59. The Court has thus concluded that Community law precludes the expulsion of a national of a Member State on general preventive grounds, that is to say an expulsion ordered for the purpose of deterring other aliens (see, in particular, Case 67/75 Bonsignore v Stadt Kőln [1975] ECR 297, paragraph 7) especially where that measure has automatically followed a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that conduct represents for the core requirements of public policy (Calfa, cited above. Paragraph 27).”
80. Mr Scannell quoted from the Tribunal in MG and VC as stating (at paragraph 12) that Nazli “suggests clearly that the views [i.e. that particularly disgraceful criminal conduct may of itself merit the reaction of deportation of an EEA National without reference to propensity to reoffend] were unsound as a matter of Community law”.’
81. It is clear to our mind that what was said in Bouchereau at page 761 of the report which we have cited, concerning the requirement that previous criminal convictions are relevant only insofar as the circumstances which gave rise to them are evidence of personal conduct constituting a present threat to the requirements of public policy, is significantly reflected in Article 27 paragraph 2(2) which, as we remind ourselves, states the following:
‘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.’
82. It is clear from Nazli that a national of a Member State cannot be expelled on general preventive grounds i.e. following the basis of deterring other aliens, without any account being taken of the personal conduct of the offender or the danger which that conduct represents for the requirements of public policy.
83. The court equated the rights available to a Turkish national under Article 14(1) of Decision no. 1/80 to the rights under Article 48(3) of the Treaty and went on to conclude that a Turkish national could be denied by means of expulsion the rights deriving directly from Decision no. 1/80 only if that measure was justified because his personal conduct indicated a specific risk of a new and serious prejudice to the requirements of public policy. It was therefore said that a measure expelling an alien as a matter of principle ordered on general preventive grounds following a criminal conviction for a specific offence must be considered to be compatible with Article 14(1). The expulsion of a Turkish national enjoying a right granted directly by Article 14(1) of decision no. 1/80, when it was ordered following a criminal conviction as a deterrent to other aliens without the personal conduct of the person concerned giving reason to consider that he would commit other serious offences prejudicial to the requirements of public policy in the host Member State was precluded.
84. Mr Eicke’s argument is that this decision can be distinguished on the basis that as was said at paragraph 62 in Nazli, the case was concerned only with the question of whether an expulsion decision could be justified ‘on the basis of general preventive grounds’. This should be contrasted with the present case where the decision was clearly based on the appellant's own conduct. Nazli was considered by Sullivan J in R on the application of Schmelz v Immigration Appellate Authority [2003] EWHC 1859 (Admin). This concerned a German national who had come to Britain in 1979 and remained thereafter and who was convicted in July 1995 of conspiracy to rob and sentenced to twelve years imprisonment. Sullivan J quoted the relevant paragraphs from Nazli that we have set out above, and also noted (at paragraph 42) that the Adjudicator had made it very clear that the appellant was not being deported to deter others from similar crimes which would have been contrary to the decision in Nazli and that deportation was justified because the seriousness of the crime was such that the public should be protected from even the small risk of repetition.
85. Orfanopoulos, Case C/482/01, concerned a Greek national who had lived in Germany since the age of thirteen other than for a two year period when he performed his military service in Greece, and who had pursued various activities as an employed person since 1981, and had been convicted on nine occasions of offences against narcotics legislation and for committing acts of violence. At paragraph 67 it was said that :
‘The existence of a previous criminal conviction can justify an expulsion only insofar as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.’ (quoting Calfa [1999] ECR 1-11)
86. And then at paragraph 68 we find the following:
‘The court has therefore concluded that Community law precludes the deportation of a national of a Member State based on reasons of a general preventive nature, that is one which has been ordered for the purpose of deterring other aliens (see, in particular, Bonsignore, cited above, paragraph 7), in particular where such measure automatically follows a criminal conviction without any account being taken of the personal conduct of the offender or the danger which that person represents to the requirements of public policy.’ (Again referring to Calfa and to Nazli).
87. Clearly therefore what was said in Bouchereau still applies. Can it properly be said that the circumstances which gave rise to the appellant's convictions evidence personal conduct constituting a present threat to the requirements of public policy?
88. In the revised reasons for deportation letter it is noted that it is unlikely that the appellant will reoffend, and that he accepts his responsibility for his offences and has undertaken courses for anger management. It notes however that his current behaviour and actions and day-to-day life are very closely monitored. There is reference there to one escorted visit, though we accept that the evidence is in fact that he has been on two escorted visits and three unescorted visits. The point is also made in the refusal letter that the court has deemed that the appellant's crime is of such severity that he will always continue to be a threat to the community such that his release on licence would be on the basis that he might be recalled to prison at any moment for any breach of his conditions. The point is made that he has been assessed and that he is subject to the highest level of multi-agency public protection arrangements (Mappa) (Level 3). In this regard though we must bear in mind the point to which we were referred by Mr Scannell that that assessment was not made on account of the appellant being a threat to the public but because of the likelihood of media scrutiny and/or public interest. The letter does note that risk factors might increase because of media and public scrutiny that the appellant might receive. It also comments that the OAsys report notes that there are occasions where the appellant has overacted to situations and there are severe concerns with finding him appropriate accommodation on release if allowed to remain in the United Kingdom. He would need to be excluded from certain parts of the country, community integration would be a problem on release and he might suffer a backlash. The letter states that the appellant's notoriety might make him feel excluded from society as he had been before and there was a significant risk that his previous disregard for authority and the law might resurface and result in him coming to adverse attention. As a consequence it was considered that he posed a continuing risk to the public and that his offences were so serious that he represents a genuine and present and sufficiently serious threat to the public in principle such as to justify his deportation.
89. Mr Scannell argued that there was no evidence of the appellant constituting a present and serious threat. Of particular significance was what was said by Mr Hughes, the Deputy Governor of Ford Prison, in his letter to the appellant's solicitors of 8 March 2007. He had been in the prison service for thirty years and had dealt with numerous offences. There were only a small minority who had demonstrated a change for the better and gone on to lead lawful and purposeful lives and he strongly believed that the appellant was a changed person who had realised the gravity of his index offence and if given a chance would prove himself worthy of trust. All the reports on him had been very positive and the Parole Board had been very impressed.
90. We are clear that there is no material difference between Directive 64/221 and what was said in Bouchereau from the wording of the current Directive. We do not accept that Nazli has in some way overruled case law such as Bouchereau. We accept that the emphasis placed by the Court of Appeal in Marchon, particularly where it was said that disgraceful criminal conduct may of itself merit deportation without any reference to propensity to reoffend, does not represent the current state of European law.
91. In Article 28 paragraph 1 the host Member State is required to 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 integrity to the host Member State and the extent of his/her links with the country of origin.
92. It is clear that the appellant has lived in the United Kingdom for most of his life. As we have set out above, he arrived in the United Kingdom on 4 January 1987 aged six years and four months and has been here since. He was aged fifteen when he stabbed and killed Mr Lawrence. He is now aged twenty-six. In his statement at paragraph 11 the appellant says he is desperate to get back with his family. When he comes out of prison he will go to live with them. He refers to the fact that his mother is diabetic and suffering from high blood pressure and he wants to help her. In her statement his mother refers to the family history. She remarried in 1993 and lives in a three bedroom flat with her husband and her son, Wolfgang. Her other son, Rocco, lives with his girlfriend and visits regularly. Wolfgang visits the appellant regularly every month or two months, usually going with their mother, though her health is not always good enough for her to be able to go. Wolfgang also talks to the appellant two or three times a week where possible. Neither he nor his younger brother Rocco has any criminal convictions. He and their mother talk about the changes in the appellant and their confidence that he will settle down and obtain work and lead a good life on release. His mother and two brothers attended the hearing.
93. The statement of the first friend, whom we shall refer to as A, refers to him having gone with the appellant's elder brother to see him in prison on half a dozen occasions and also to regular telephone conversations when the appellant rings him. He has seen nothing about the appellant that would make him think that he would be likely to reoffend. He emphasises that he himself was not involved in any gang and never carried a weapon but he was a friend of the appellant's. The other friend, whom we shall call B, was part of what he described as a group rather than a gang, of which the appellant was a part. He has visited the appellant three or four times in prison, each time with a member of his family, and speaks to him whenever the appellant rings him which is quite often. He believes that the appellant will want to look after his mother and be around his family when he comes out of prison and is sure that he will not get involved with anything illegal again.
94. As regards the appellant's economic situation, of course he has never worked. He has obtained GCSEs in maths, English and art and GBTSs in hospitality and catering and health and social care. Before he went to prison he could not read properly or spell his address or his mother’s second name. When he was in the open prison at Ford it had been planned for him to try to go to college to get training as a plumber and to get work experience, but this was all put on hold when he was transferred back to a category C prison and he has been unable to do any courses there as he has done all the appropriate courses for category C prisoners. His economic prospects are unclear. He would be living with his family, but would enter the job market as someone with no work experience and with relatively limited qualifications. On his own admission the appellant experienced difficulties in integrating into British society, which led him to become involved in a gang around the age of thirteen. Integration into society on release would clearly pose difficulties for the appellant given his previous problems and the young age at which he went to prison and the notoriety surrounding the offences for which he was convicted. As regards his links with Italy, they can really be said to be no more than the fact that he lived there for a few years when he was very young. He does not speak Italian, and does not have contact with his father, an Italian national, who it seems is either in prison in Italy or Spain or on the run from Interpol. It does not appear that the appellant has any other family in Italy.
95. All these matters are required to be taken into account before taking an expulsion decision on public policy grounds.
96. We have concluded that there do not exist grounds of public policy in this case which justify exclusion. The provisions of European law, in particular at Article 27 paragraph 2 and the relevant decisions of the European Court, are compelling, taken with the Article 28 paragraph 1 considerations and the various reports on the appellant, especially that of Mr Hughes. We conclude that the Secretary of State has not shown that the decision to remove is proportionate, nor that the decision complies with the other requirements of Regulation 21(5).
97. As regards Article 8, it is common ground that only exceptionally will that Article be engaged by the relationship between an adult appellant and, as in this case, his mother and grown-up siblings. The principles are clearly set out in Advic v the United Kingdom [1995] 20EHRR CD 125. Where counsel part company, however, is on the question of whether this is an exceptional case. Mr Scannell, as we have set out above, argued that more than normal emotional ties could be shown, given the considerable importance of the appellant's family to him in contrast to the situation he would face on return to Italy. Mr Eicke relied upon what was said by the European Court of Human Rights in Üner v Netherlands [CG] [18 October 2006] which involved an appellant who was born in Turkey in 1969 and moved to the Netherlands in 1981. He was convicted of breach of the peace in 1989 and a violent offence against the peace in 1992. In 1993 he was convicted of manslaughter and in 1994 he was sentenced to seven years imprisonment. In 1991 he had entered into a relationship with a Netherlands national and a son was born to them on 4 February 1992. The relationship had broken down in November 1992 but he remained in close contact with his former partner and his son. He lost an appeal against the decision withdrawing his permanent residence permit and imposing a ten year exclusion order on him fairly soon afterwards and remained in Turkey having been convicted of the offence of residing illegally in the Netherlands and having had declared inadmissible an appeal against a refusal to revoke the exclusion order. In March 2006 he was discovered working in an illegal cannabis plantation in the Netherlands and he was arrested and placed in Netherlands detention.
98. The Grand Chamber of the European Court of Human Rights found that there had been no violation of Article 8. Among other matters it noted, at paragraph 55, that there were a number of contracting states which had enacted legislation or adopted policy rules to the effect that long term immigrants who were born in those states or who arrived there during early childhood could not be expelled on the basis of their criminal record; such an absolute right not to be expelled could not be derived from Article 8 of the Convention bearing in mind paragraph 2 of that provision; at paragraph 56 that even if a non-national held a very strong residence status and had attained a high degree of integration, his or her position could not be equated with that of a national when it came to the power of contracting states to expel aliens; at paragraph 62 that the Court did not doubt that the applicant had strong ties with the Netherlands but was not prepared to accept that he had spent so little time in Turkey at the time when he was returned there that he no longer had any social or cultural (including linguistic) ties with Turkish society. At paragraph 63 the Court expressed the view that the offences of which he had been convicted were of a very serious nature and though, at paragraph 64, the Court would not wish to underestimate practical difficulties entailed for his Dutch partner in following him to Turkey, in the particular circumstances of the case the family’s interests were outweighed by the other considerations set out.
99. Mr Eicke relied on this decision. Mr Scannell argued that it was a very different situation since the appellant did not represent any risk of danger to the public.
100. We must also be guided by the opinion of the House of Lords in Huang v Secretary of State for the Home Department [2007] UKHL 11, which was decided after the hearing before us. In that decision the House emphasised the importance of taking account of Strasbourg jurisprudence on the meaning and effect of Article 8. The House emphasised the fact that the main importance of the case law is in illuminating the core value which Article 8 exists to protect. It is said that there comes a point at which some prolonged and unavoidable separation from the family or extended family group seriously inhibits their ability to live full and fulfilling lives. Matters such as the age, health and vulnerability of the applicant, the closeness and previous history of the family, this applicant’s dependence on the financial and emotional support of the family, the prevailing cultural conditions in the country of origin and many other factors may all be relevant. The Strasbourg Court has repeatedly recognised the general right of states to control the entry and residence of non-nationals and repeatedly acknowledged that the Convention confers no right on individuals or families to choose where they prefer to live. In most cases the crucial question is likely to be whether the interference or lack of respect complained of is proportionate to the legitimate ends sought to be achieved. In essence this comes down to the balancing exercise that we have considered above.
101. We invited written submissions from Mr Eicke and Mr Scannell on Huang, and we are grateful to them both for their responses. Mr Eicke argued that it was difficult to conceive of a situation where the proportionality assessment under Regulation 21(5)(a) would differ in any material respect from that under Article 8(2) ECHR. He emphasised the point made at paragraph 12 in Huang that the judgement of the primary decision maker, on the same or substantially the same factual basis, is always relevant and may be decisive. It could be seen from paragraph 16 that the AIT will wish to consider and weigh all that tells in favour of the refusal of leave which is challenged, with particular reference to justification under Article 8(2). Mr Eicke emphasised the seriousness of the offence committed by the appellant and the present, genuine and sufficiently serious threat to public policy posed by him. It remains an expectation that the number of claimants not covered by the Rules and supplementary directions but entitled to succeed under Article 8 will be a very small minority. Mr Eicke concluded that the ruling of the House of Lords in Huang has not significantly changed the role of the AIT in considering and determining this appeal.
102. Mr Scannell referred to the fact that a test of exceptionality no longer applied. He quoted paragraph 20 of Huang, and argued that expulsion would be disproportionate as a matter of both Community and domestic law, with regard to the latter in particular because, on the basis of paragraph 20, expulsion would prejudice the family life of the appellant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8.
103. We conclude, bearing in mind the guidance in Huang and also as expressed previously by the House of Lords in Razgar v Secretary of State for the Home Department [2004] 2AC 368 that the ultimate question for us is whether the refusal of leave to enter or remain as was in that case in circumstances where the life of the family cannot reasonably be expected to be enjoyed elsewhere, taking full account of all considerations weighing in favour of the refusal, prejudices the family life of the applicant in a manner sufficiently serious to amount to a breach of the fundamental right protected by Article 8. As with the public policy issue discussed above, the matter is finely balanced. We accept that family life exists. The relationship between the appellant and his mother and brothers transcends normal emotional ties, as required to be shown in Advic. The impact on the appellant of long-term imprisonment has meant that his family ties have remained fundamentally important to his private and social existence beyond his eighteenth birthday, and of course being in prison has denied him the normal opportunities to lead an independent life once he turned eighteen. Üner seems to us to be rather an assessment of proportionality under Article 8 than a decision on whether Article 8 is engaged. Also factually it is very different, the appellant there being an unrehabilitated criminal. In the instant case, the appellant has a very supportive family, who will have an important role on his release, to protect him as far as possible from notoriety. When it comes to the assessment of whether his removal would be disproportionate, we consider that there have been shown to be insurmountable obstacles to the family living together in Italy. The family have been living lawfully in the United Kingdom for twenty-one years and are established here. In Italy the appellant has no home, family, language, connection or support. In the United Kingdom where he has spent all but three or fours years of his life, the appellant has a home, a supportive family, supportive agencies and language skills. We conclude that the Secretary of State has not shown that the breach of the Article 8 right to family life that would be occasioned by the appellant's removal to Italy would be proportionate.
104. There remain two other matters for consideration. The first of these is Mr Scannell’s point that it is the case even now that a decision to remove is premature since circumstances can change. This was the basis on which the appellant's appeal against an earlier deportation order of 1 March 1999 was allowed: Chindamo (00/TH/2345), 21 December 2000. We agree with Mr Eicke, however, that on that basis there would in theory never be a point at which a decision could properly be made. It would hardly be in the appellant's interests if the Secretary of State waited until the day of his release before making a decision since it would presumably follow from that that he would then go into immigration detention where he might remain for some time while the decision was being made and an appeal heard. We are sufficiently close to the time of release now and have sufficient evidence before us as to enable us to come to a proper decision.
105. Linked to this fall-back position is the point made by Mr Scannell concerning the Parole Board. The conclusions to be reached by the Parole Board on any risk to society from the appellant on release is a separate matter from the jurisdiction which we must exercise. Quite irrespective of what might be said by the Parole Board in this case, we have to come to the conclusions on the evidence and the law as it is before us as of today. We have concluded that the appellant's appeal succeeds both with regard to the challenge to the decision to make a deportation order and also with regard to the claimed breach of his Article 8 rights.
Signed
Date
Senior Immigration Judge Allen
A mixture of law, politics, autobiography and humour. Once described as "The Devilish Advocate" (Guardian), I do have the ability to provoke a response. Sometimes it comes from someone who uses a thought process, and sometimes from jerks usually associated with the knee.
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