AA (Nigeria) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lady Justice Gloster,Mr Justice Baker |
| Judgment Date | 08 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1249 |
| Court | Court of Appeal (Civil Division) |
| Date | 08 December 2015 |
| Docket Number | Case No: C5/2014/3373 |
[2015] EWCA Civ 1249
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Jordan
Appeal no. DA/01583/2013
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lady Justice Gloster
and
Mr Justice Baker
Case No: C5/2014/3373
Brian Kennelly (instructed by The Government Legal Department) for the Appellant
Sibghatullah Kadri QC and Rashid Ahmed (instructed by Obaseki Solicitors) for the Respondent
Hearing date: 11 November 2015
The respondent is originally from Nigeria. He migrated to Norway in 1982 and was granted Norwegian citizenship in 1996 or 1997. He came to the United Kingdom in 2002 in the exercise of his rights of free movement as an EEA national. Thereafter he acquired the right to reside in the United Kingdom permanently, pursuant to regulation 15(1) of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"), by virtue of a five year period of continuous residence here between 2004 and 2009. He has a wife and three children who have also acquired a right of permanent residence here, as family members, but the present appeal is concerned only with the respondent's position.
In August 2010 the respondent was convicted of the importation of one kilogram of a class A drug, cocaine, and was sentenced to six years' imprisonment. On 8 August 2013 he was served with notice of a decision to make a deportation order against him under regulation 19(3)(b) of the EEA Regulations. By regulation 21(3), a decision to deport a person with a right of permanent residence in the United Kingdom may not be taken except on "serious grounds of public policy or public security". The Secretary of State considered that the deportation was justified on serious grounds of public policy.
The First-tier Tribunal allowed the respondent's appeal against the Secretary of State's decision. The Secretary of State appealed in turn to the Upper Tribunal, which held that the First-tier Tribunal had made no error of law and that its determination should stand. The Secretary of State was then granted permission to appeal to this court against the Upper Tribunal's determination, on grounds that had not been raised either before the First-tier Tribunal or on the appeal to the Upper Tribunal. Those grounds are based on case-law of the Court of Justice of the European Union ("the CJEU") relating to the acquisition of the right of permanent residence under the EU directive which the EEA Regulations implement, namely Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States ("the Directive").
The grounds of appeal are in summary that (1) the tribunals erred in failing to consider whether the respondent lost his right of permanent residence by reason of his offence and imprisonment; alternatively, (2) even if the respondent retained his right of permanent residence, the tribunals erred in their approach to the question whether there were serious grounds of public policy justifying the respondent's deportation, in particular in failing to consider whether his offence and imprisonment diminished his degree of integration within the United Kingdom. There is a third ground of appeal but Mr Kennelly, counsel for the Secretary of State, accepted that it is indistinguishable in substance from the second.
The EEA Regulations
Regulation 15 of the EEA Regulations is concerned with the right of permanent residence. It provides, so far as material:
"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;
…
(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)."
Regulation 19 concerns exclusion and removal from the United Kingdom. It includes the following:
"19. … (3) Subject to paragraphs (4) and (5) [which are not material to this case], a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if —
(a) he does not have or ceases to have a right to reside under these Regulations; or
(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21."
Regulation 21 governs decisions taken on grounds of public policy, public security or public health. It provides in material part:
"21(1) In this regulation a 'relevant decision' means an EEA decision taken on the grounds of public policy, public security or public health.
…
(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 …
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles —
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin."
The Directive
The Directive relates in terms to EU citizens but the rights under it are extended to EEA nationals. It is common ground that the EEA Regulations are, so far as material, a correct implementation of the Directive and that they have to be interpreted in accordance with the Directive. Since, however, the relevant CJEU case-law relates to provisions of the Directive, it is necessary to give a brief description of those provisions here.
The right of permanent residence is governed by Chapter IV of the Directive. Article 16 contains the eligibility provisions to which effect is given in regulation 15 of the EEA Regulations. Article 16(1) corresponds to regulation 15(1), providing that EU 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. It specifies that the right shall not be subject to the conditions provided for in Chapter III of the Directive: i.e. once the right of permanent residence is acquired, and unless and until it is lost, it is not subject to the conditions to which lawful residence of an EU citizen in the territory of another Member State is otherwise subject under the Directive. Article 16(2) provides that Article 16(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. Article 16(4) corresponds to regulation 15(2), providing that once acquired, "the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years".
Chapter VI of the Directive concerns restrictions on rights of entry and residence. Article 27(1) provides that, subject to the conditions of the Chapter, Member States may restrict the free movement and residence of EU citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. Article 27(2) provides that measures taken on grounds of public policy or public security shall comply with certain conditions, corresponding to those set out in regulation 21(5) of the EEA Regulations. Article 28(1) provides that before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations corresponding to those set out in regulation 21(6) of the EEA Regulations. Article 28(2) lays down the stricter test, corresponding to regulation 21(3) of the EEA Regulations, for those with a right of permanent residence, namely that the host Member State may not take an expulsion decision against EU citizens or their family members who have the right of permanent residence on its territory, "except on serious grounds of public policy or public...
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