Ali Hafeez v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Simler,Lord Justice Bean,Lord Justice Simon |
| Judgment Date | 17 March 2020 |
| Neutral Citation | [2020] EWCA Civ 406 |
| Date | 17 March 2020 |
| Docket Number | Case No: C9/2019/0842/AITRF |
| Court | Court of Appeal (Civil Division) |
[2020] EWCA Civ 406
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
MRS JUSTICE COCKERILL AND JUDGE CANAVAN
DA/00006/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Bean
Lord Justice Simon
and
Lady Justice Simler
Case No: C9/2019/0842/AITRF
Leonie Hirst (instructed by Wilson Solicitors LLP) for the Appellant
Claire van Overdijk (instructed by the Government Legal Department) for the Respondent
Hearing date: 5 March 2010
Approved Judgment
Introduction
Ali Hafeez is a German national, born in 1995, who has lived in the UK since 2006 or 2007. On 12 March 2015 he was convicted of rape and other offences in the Crown Court at St Albans and sentenced to 7 years detention. On 8 December 2017 the Home Office made a decision under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) that he should be deported to Germany. His appeals to the First Tier Tribunal (“FTT”) and Upper Tribunal (“UT”) were unsuccessful. He now appeals to this court by permission of Hickinbottom LJ.
The 2016 Regulations were made pursuant to the UK's obligations under EU Directive 2004/38: relevant passages from both the Directive and the 2016 Regulations are appended to this judgment. (It was not suggested by either side that the UK's withdrawal from the EU makes any difference to the present case.) There are three levels of protection from deportation for EEA nationals. Putting to one side decisions made on public health grounds, which are not relevant in this case, any EEA national who has the right to reside in the UK (either personally or as a family member of another EEA national who has that right) may only be removed on grounds of public policy or public security (Regulation 23(6)(b)); the decision may not be taken to serve economic ends (Reg 27(2)); and it must comply with the principle of proportionality and a number of other requirements set out in Regulation 27 (5) – (6). I will call this “basic protection”.
If the EEA national has resided in the UK in accordance with the 2016 Regulations “for a continuous period of five years”, he acquires the right of permanent residence (Regulation 15(1)), and in addition to basic protection he has the benefit of Regulation 27(3), which states that a decision to remove him may not be taken “except on serious grounds of public policy and public security”. I will call this “serious grounds protection”.
Finally, if the EEA national has resided in the UK “for a continuous period of at least ten years prior to the relevant decision”, Regulation 27(4) states that a decision to remove him may not be taken “except on imperative grounds of public security”. I will call this “imperative grounds protection”; it is also sometimes referred to as “enhanced protection”.
The two principal issues before us are (a) to which level of protection was the Appellant entitled when the decision to deport him was made; and (b) given that he had that level of protection, was the decision lawful?
The facts
Mr Hafeez claims to have resided in the United Kingdom since some time in 2006, though the Respondent maintains that he only arrived in 2007 and first attended school here in July 2007. On 1 October 2008, Mr Hafeez's father applied to register himself as an EEA national and his family, including the Appellant, as his dependants. They were granted registration certificates on 14 December 2009.
His conviction at St Albans Crown Court was on two counts of rape committed while he was aged seventeen in June 2013, for which he received a sentence of six years, one count of robbery committed against the same victim on the same date (three years concurrent); and one count of dangerous driving for which he received a sentence of 12 months consecutive to the six years received for the index offence. He had an earlier conviction for theft from a motor vehicle for which he had received a conditional discharge.
The facts are vividly described in the remarks of the sentencing judge, which were quoted in the Home Office's decision letter:
“Your victim was a 27 year old sex worker. There was some evidence at the trial you had met her previously. But on the night in question you got in to your car and went with her to a secluded car park, as she thought for consensual paid for sexual intercourse. When you were there you grabbed her by the throat. She could feel something cold, sharp and hard pushing at the back of her beck. I am satisfied, having heard both trials, that you had with you a knife or other sharp implement, and you had it with you when you went out that evening. You said that you'd been robbed by a prostitute and they all deserved what they were going to get. You described people like her as being “all scum”.
You got hold her hair, pulled her head on to you and forced her to give you oral sex. You told her to pull her tights down, and you then got on top of her and vaginally raped her, and said several times according to her evidence, “Move like you want it, bitch,” while holding her throat and putting pressure on her windpipe. When she tried to use her phone you grabbed it from her. You grabbed her by the neck again and you asked whether she had any money. When she said that she didn't you said, “Don't lie to me, you've been out since seven,” and you told her to take off her shoe, and lifted up the insole and took the money from where she'd been keeping it. She ran away, crying.
This was a terrifying ordeal so far as she was concerned. And I'm quite satisfied, as I've already said, that a weapon of some sort was used by you to carry it out. Which indicates some degree of planning by you. You did all this when you had her at your mercy, and it is aggravated by the fact that you robbed her at the same time.”
The judge went on to state that:-
“This offence was motivated, so it would appear, not only by you seeking your own sexual gratification, but also some form of revenge. And it showed a complete disdain for her as a person by reason of what she did to earn money. An insight in to your character is to be gained from the fact that you constructed an elaborate defence at both these trials, tailored to the facts of the case, and rejected by the jury that convicted you. That included your father, who was called as a witness by you to say that it was he who was using the car on the night in question, and not you. You also alleged that you had consensual sex with her for a few days before at the very same location, done in order to explain — as you realised you had to – why your DNA was found on a discarded condom at the scene.
In addition, you made a hoax call to the police very shortly afterwards on her phone, and there was expert evidence called at retrial to show it was you who making that call. Whether it was to distract the police or to help establish an alibi on your part is perhaps immaterial. You also provided an elaborate explanation for the presence in your car of a police document which she was able to recognise, and which you realised that you needed to explain. And you then invented an approach by her to demand money from you to drop the case, and you called the police to say that she's done that in a blatant attempt to discredit her at any forthcoming trial.
I do not, I make plain, increase your sentence because you contested the trial, nor for the way in which you contested it. But you have shown no remorse or acceptance of guilt. I cannot give you any credit for a plea of guilty, and I will say more in a moment about why these matters have relevance in your case. What is clear is that by contesting the case you obliged her to give evidence, and to relive the ordeal which she had undergone.
On 27 th February of last year, whilst you were on bail for this, you then drove a vehicle dangerously. It was in the early hours of the morning. It involved a high speed chase by police as you tried to get away. You failed to stop for them. You drove through a number of red traffic lights and speeds of up to 100 miles an hour were recorded. The distance is not entirely clear. The duration was about four or five minutes. But is plain is that by driving in that manner you caused the risk of serious injury or worse to other road users, although thankfully in the particular circumstances of this case no injury or accident actually occurred.
When the police stopped you they found a second set of index plates for the vehicle. You contested that trial as well. And the conduct of that trial for dangerous driving initially involved accepted in police interview and your defence statement that you'd been the driver, although you hadn't driven dangerously. But that defence was then abandoned subsequently in favour of the defence that it wasn't you driving at all. And you produced a number of phone messages in order to try and confirm that. Again, I make it plain I don't increase your sentence because you conducted the trial in that way.
But I had the advantage of seeing you give evidence at both those rape trials. You are a highly intelligent and articulate young man, with an excellent academic record, who became for a period of time a law student with hopes of entering the legal profession. You have thrown away any prospect of such a career. But what is unusual about this case, certainly unusual in my experience, is the fact that you were prepared to use your intelligence and all those attributes with a degree of misplaced ingenuity in order to go to very considerable lengths to try to avoid justice. You cynically manipulated the criminal process to cover your tracks, using a degree of sophistication and cunning beyond that of many adults, and certainly beyond your chronological age. And that shows the sort of...
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