Batista v Secretary of State of the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE CARNWATH,LADY JUSTICE BLACK,LORD JUSTICE MAURICE KAY
Judgment Date29 July 2010
Neutral Citation[2010] EWCA Civ 896
Docket NumberCase No: C5/2009/1202
Date29 July 2010

[2010] EWCA Civ 896

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM ASYLUM & IMMIGRATION TRIBUNAL

Immigration Judge Munonyedi & Mr P Bompas

Before: Lord Justice Maurice Kay

Lord Justice Carnwath

and

Lady Justice Black

Case No: C5/2009/1202

IA/17955/2008

Between
Valentin Batista
Appellant
and
Secretary of State for the Home Dept
Respondent

Becket Bedford (instructed by Messrs. Sutovic & Hartigan) for the Appellant

Alan Payne (instructed by Treasury Solicitor) for the Respondent

Hearing date : Tuesday 20th July, 2010

LORD JUSTICE CARNWATH

Introduction

1

This is an appeal against a decision of the AIT upholding a deportation order made by the Secretary of State.

2

The appellant is a Portuguese national, born in Guinea Bissau in 1981. He moved to Portugal at the age of 8, when his parents separated, and then in 1994, when his mother became ill, he came to this country to live with an aunt and uncle. From 1998 he received a number of criminal convictions, culminating in a sentence of 4 years 3 months in 1999 for robbery and burglary, and 8 years for burglary and GBH in 2005. In 2002 he began living with his girlfriend, Tamara Deane, and had a child by her in June 2005.

3

The AIT recorded the appellant's evidence as to circumstances of the last offences. Under the influence of alcohol and cannabis, he broke into a flat, in which he found two people were sleeping, one wearing a bracelet. As he was trying to remove the bracelet, the owner woke up, and a fight followed. In the course of it the appellant smashed two bottles of wine over the head of the victim, causing serious injury. The sentencing judge described it as “truly a terrifying incident” and commented:

“in addition to what you did you have a very bad record for one so young. You have served 2 sentences for robbery… in my judgment there are high level aggravating features here… the force you used against the victim. The fact that the victim was injured and the traumatic offence on the victim and in my judgment in excess of that generally associated with standard burglaries…

This is the second offence of burglary and in my judgment when one considers the totality of your record you are clearly a serious danger to the public…”

4

On 21 st October 2008, the Secretary of State notified the appellant that he was to be deported. On 21 st January 2009, the AIT (IJ Munonyedi and Mr Bompas) rejected his appeal.

5

They recorded the therapy sessions he had taken in prison over 18 months and accepted that he was “remorseful about his past offending and particularly in respect of his last offence”; and they acknowledged that since imprisonment for the last offence, the appellant had made “real progress” (para 20). However, they found “very compelling and persuasive” the conclusions of the Parole Board, who had refused his application for parole in August 2008, following an actuarial risk assessment indicating a “medium risk” of reoffending posing a “medium risk of serious harm to the public” (para 20–1). In particular the Board had expressed their concern at the serious nature of the last offence, the escalating use of violence by the appellant, and the lack of plans for employment or training, and had concluded that the risk of reoffending was “too high”. On that basis the tribunal themselves considered that there was “a very high risk” that he would re-offend and that he posed “a real and serious risk to the general public” (para 24). In their later conclusions, they attributed the view that he posed a “very high risk” to the “the probation service” (although a finding in those terms by that body was not mentioned earlier), and said that they had seen no evidence to contradict it (para 35).

6

As part of their consideration of the risk of reoffending, they noted his intention to live with his girlfriend and son after release, but they accepted the probation service's view that he had not fully appreciated the difficulties he would face in renewing the relationship after several years, with the added tensions arising from the presence of a young son and without any definite plans for employment. They said:

“In our view there are many serious challenges and pressures that will be placed upon the relationship which if they are not dealt with appropriately may cause it to collapse. A breakdown in the relationship in our view will greatly increase the appellant's vulnerability and will be another reason to force him to turn to alcohol and drugs and ultimately crime.” (para 24)

The appeal

7

The grounds of appeal to this court are four:

i) The tribunal failed to determine whether the appellant had a right of permanent residence pursuant to Article 16 of the Citizen's Directive 2004/58/EC;

ii) Having disregarded the fact that the appellant had a right of permanent residence in the UK, they failed to determine whether expulsion was justified on “serious grounds of public policy or public security”;

iii) The tribunal erred in holding that periods of imprisonment did not count as residence for the purposes of acquiring 10 years of continuous residence (once a right of permanent residence had been established)

iv) The tribunal applied the wrong legal test to the question of whether there was disproportionate interference with family life pursuant to Article 8

The Citizens' Directive

8

The first three grounds raise issues under the Citizens' Directive, given effect in this country by the Immigration (EEA) Regulations 2006. The provisions have been examined by this court in LG(Italy) [2008] EWCA Civ 190 and HR(Portugal) v Secretary of State [2009] EWCA Civ 371, and by the AIT in LG and CC (Italy) v Secretary of State [2009] UKAIT 0024 (in which I presided). I did not understand either party to question the law as there stated, at least so far as the domestic courts are concerned. It is unnecessary therefore to repeat the detail.

9

It is sufficient to recall that the Regulations (particularly regulation 21) provide for a hierarchy of levels of protection in relation to decisions to remove EEA citizens on grounds of public policy or public security. As I explained in LG(Italy) in the Court of Appeal (at para 14–15):

“… the 2006 Regulations have introduced a new hierarchy of levels of protection, based on criteria of increasing stringency:

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

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

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

….

The Court of Appeal has long accepted that removal on ‘public policy’ grounds may be a justified response to sufficiently serious criminal conduct, if combined with evidence of a propensity to reoffend, and in particularly serious cases even without it…”

10

It is also important to note that, under all three levels of protection, certain general criteria must be met (reg 21(5)):

“(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.”

11

The third ground of appeal is related to the highest level of protection based on ten years' residence, and depends on the appellant's time in prison being included in that period. In LG and CC in the AIT we held, in light of HR(Portugal), that “time in prison does not count towards the acquisition of the high level of protection, even for someone who has a right of permanent residence” (para 76). Mr Bedford realistically did not challenge that conclusion before us, although he invited us (if he failed on the other grounds) to refer the issue to the European Court. On this basis the third ground of appeal must be dismissed.

12

The first two grounds of appeal are concerned with the appellant's claim to the second level of protection, for those with permanent rights of citizenship. Such a permanent right is acquired after “residence in the United Kingdom in accordance with these regulations for a continuous period of five years” (reg 15(1)(a)) and is lost only through absence for “a period exceeding two consecutive years” (reg 15(2)). It is now settled law (following HR(Portugal)) that time in prison does not count towards residence for these purposes.

13

Mr Bedford submits that the AIT failed to make a finding that the appellant had acquired a right to permanent residence, and in consequence failed to apply the correct test.

14

I agree that the AIT's treatment of this issue (para 27) leaves something to be desired. They referred to the relevant regulation, but omitted the word “continuous”. They commented that he had been present in the United...

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