Bulale v Secretary of State for the Home Department; B (Netherlands) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Waller |
| Judgment Date | 11 July 2008 |
| Neutral Citation | [2008] EWCA Civ 806 |
| Date | 11 July 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2007/2426 |
[2008] EWCA Civ 806
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE LANE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Buxton
And Lady Justice Smith
Case No: C5/2007/2426
IA/12006/2006
Miss Adeyinka Adedeji (instructed pro bono by the Citizens' Advice Bureau, Royal Courts of Justice branch) for the Appellant
Miss Samantha Broadfoot (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Hearing dates : 14 May 2008
This case has, in accordance with the precautionary administrative practice in immigration cases, been so far titled in anonymous form. Examination of the case however shows that there is no reason for concern that Mr Bulale will be at risk in relation to anything revealed in these proceedings, which will accordingly proceed in nominated form.
The history of this appeal
Mr Bulale, a citizen of the Netherlands, contests a decision of the Secretary of State on grounds of public policy, namely Mr Bulale's propensity to commit serious criminal offences, to deport him from this country under the provisions of the Immigration (European Economic Area) Regulations 2006 [the Regulations]. His appeal failed before a panel of the AIT [the first tribunal] and also on reconsideration before Senior Immigration Judge Lane. Although in form the appeal is from SIJ Lane, we have in substance been concerned with the decision of the first tribunal.
Before the first tribunal and before SIJ Lane Mr Bulale was represented by a member of his then firm of solicitors. When his appeal to SIJ Lane failed the solicitors instructed counsel, under a CLSF certificate, who settled lengthy grounds of appeal and a very lengthy skeleton, on the basis of which a single Lord Justice was persuaded to give permission to appeal to this court. When that appeal was called on before a different constitution of this court on 14 April 2008 the court was told by counsel then appearing for the Secretary of State that Mr Bulale's solicitors had come off the record and his counsel was no longer instructed. It was clearly wholly unsatisfactory that Mr Bulale should have to represent himself in a case that raises a point of some general interest, and in which he was facing significant difficulties. The court accordingly adjourned the appeal in the hope of some representation being arranged. That has now been provided, through the offices of the Citizens' Advice Bureau at the Royal Courts of Justice, by Miss Adedeji acting pro bono. She presented a helpful argument that, by a well-judged decision, depended very little on the work of her predecessor.
It is greatly to the credit of the professions that that arrangement was made. I am less clear that it was to the credit of the professions that Mr Bulale was left at the door of the court without representation, and with the court not knowing why that was. The court did not think it appropriate to pursue enquiries while the appeal was in progress, but it will now investigate the circumstances of Mr Bulale's previous representation.
Further difficulties then arose. The point on which (with, as indicated below, a modest amount of encouragement from the bench) Miss Adedeji concentrated her argument did not appear at all in her predecessor's grounds or skeleton, and had not been taken before either of the tribunals below. Miss Broadfoot very reasonably asked for time to meet it, and that wish was accommodated by an adjournment for further written argument. She then produced, in a very short period of time, a submission the comprehensiveness of which underlined our initial impression that there is very little authority to guide us. The production of further observations by Miss Adedji was then delayed by her unavailability. We felt obliged to extend indulgence so far as time was concerned by reason of the circumstances in which she had entered the case.
The Regulations
The Regulations transpose into United Kingdom domestic law the requirements of the “ Citizens' Directive” 2004/38/EC. In her judgment in LG(Italy) v SSHD [2008] EWCA Civ 190 Arden LJ drew attention to the French text of the Directive, which appears to substitute for each other two expressions that are used in the English version. Carnwath LJ at §30 of his judgment in that case suggested that the French text had been drawn up in error. He pointed out that the Italian and Spanish texts follow the same form as the English. Miss Broadfoot helpfully put those texts before us, together with the Dutch and German texts that are also in the same form as the English version. Despite this difficulty about the French text it was not suggested either in LG(Italy) or in our case that the Regulations, by following the English text of the Directive, has failed adequately to transpose the Directive. It will therefore be possible to confine ourselves to the text of the Regulations.
The Regulations apply to any EEA national who has been admitted to or has acquired a right to reside in the United Kingdom. Such a person may be removed from the United Kingdom if, by regulation 19(3), the Secretary of State decides that his removal is justified on grounds of public policy, public security or public health. The power of the Secretary of State to make such a decision is however significantly circumscribed by Regulation 21.
The effect of Regulation 21 was, with respect, helpfully set out by Carnwath LJ in §14 of his judgment in LG(Italy):
the 2006 Regulations have introduced a new hierarchy of levels of protection, based on criteria of increasing stringency:
A general criterion that removal may be justified “on the grounds of public policy, public security or public health”;
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”;
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”.
It will be convenient to note here that while LG(Italy) was a “ten year” case, Mr Bulale asserts that he has a permanent right of residence, on the basis, by regulation 15, of residence in the United Kingdom for a continuous period of five years. He cannot therefore be removed except on “serious” grounds of public policy. At an earlier stage of the process the Secretary of State conceded that Mr Bulale has a relevant continuous period of residence of five years, and despite second thoughts on her part very fairly does not seek to withdraw that concession. However, the concession was only doubtfully correctly made. For much of the period of five years relied on Mr Bulale was in detention. The periods of residence contained in the Regulations, and in the Directive, are there to concretise the principle set out in recital 23 to the Directive, which requires the scope of measures to expel persons to be limited according to the extent to which the person has integrated into the host state. It is difficult to think that that process of integration can take place while a person is living outside normal society in the host state, not because of illness or accident, but because he has chosen to breach the societal norms of that state. I hope that an early opportunity will arise for that point to be tested further.
Reverting to the Regulations, in addition to the hierarchy of regulation 21 any decision on grounds of public policy or public security must be taken in accordance with the principles set out in regulation 21(5), which are:
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 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.
Third, by regulation 21(6) the decision maker, before taking any decision on grounds of public policy or public security, 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”.
It may be noted, relevantly to our case, that regulation 21(5)(e), which prevents reliance on a person's criminal convictions “in themselves”, reproduces the effect of the ruling of the European Court of Justice in Case 30/77 [1977] ECR 1999 ( Bouchereau) §28:
The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.
Accordingly, and as happened in the present case, the person's criminal convictions form the context for an assessment of his present threat to what is described in regulation 21(5)(c) as one of the fundamental interests of society.
Mr Bulale
Mr Bulale was born in Somalia on 23 July 1985, so is...
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