MC (Essa Principles Recast) Portugal v Upper Tribunal (Immigration and Asylum Chamber)
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Storey |
| Judgment Date | 11 September 2015 |
| Neutral Citation | [2015] UKUT 520 (IAC) |
| Date | 11 September 2015 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2015] UKUT 520 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
UPPER TRIBUNAL JUDGE Canavan
For the Appellant: Mr T Melvin, Home Office Presenting Officer
For the Respondent: Mr H Solebo, Legal Representative, Charles Hill & Co Solicitors
MC (Essa principles recast) Portugal
-
1. Essarehabilitation principles are specific to decisions taken on public policy, public security and public health grounds under regulation 21 of the 2006 EEA Regulations.
-
2. It is only if the personal conduct of the person concerned is found to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society (regulation 21(5)(c)) that it becomes relevant to consider whether the decision is proportionate taking into account all the considerations identified in regulation 21(5)-(6).
-
3. There is no specific reference in the expulsion provisions of either Directive 2004/38/EC or the 2006 EEA Regulations to rehabilitation, but it has been seen by the Court of Justice as an aspect of integration, which is one of the factors referred to in Article 28(1) and regulation 21(6) ( Essa (2013) at [23]).
-
4. Rehabilitation is not an issue to be addressed in every EEA deportation or removal decision taken under regulation 21; it will not be relevant, for example, if rehabilitation has already been completed ( Essa (2013) at [32]–[33]).
-
5. Reference to prospects of rehabilitation concerns reasonable prospects of a person ceasing to commit crime ( Essa (2013) at [35]), not the mere possibility of rehabilitation. Mere capability of rehabilitation is not to be equated with reasonable prospect of rehabilitation.
-
6. Where relevant (see (4) above) such prospects are a factor to be taken into account in the proportionality assessment required by regulation 21(5) and (6) (( Dumliauskas [41]).
-
7. Such prospects are to be taken into account even if not raised by the offender ( Dumliauskas [52]).
-
8. Gauging such prospects requires assessing the relative prospects of rehabilitation in the host Member State as compared with those in the Member State of origin, but, in the absence of evidence, it is not to be assumed that prospects are materially different in that other Member State ( Dumliauskas [46], [52]–[53] and [59]).
-
9. Matters that are relevant when examining the prospects of the rehabilitation of offenders include family ties and responsibilities, accommodation, education, training, employment, active membership of a community and the like ( Essa (2013) at [34]). However, lack of access to a Probation Officer or equivalent in the other Member State should not, in general, preclude deportation ( Dumliauskas [55])
-
10. In the absence of integration and a right of permanent residence, the future prospects of integration cannot be a weighty factor ( Dumliauskas [44] and [54]). Even when such prospects have significant weight they are not a trump card, as what the Directive and the 2006 EEA Regulations require is a wide-ranging holistic assessment. Both recognise that the more serious the risk of reoffending, and the offences that a person may commit, the greater the right to interfere with the right of residence ( Dumliauskas at [46] and [54]).
To what extent is the prospect of rehabilitation to be taken into account in an EEA deportation appeal? To what extent do the so-called Essa principles still hold good? These are the principal questions raised by this appeal.
The appeal is brought by the appellant (hereafter the Secretary of State or SSHD) against the determination of First-tier Tribunal (FtT) Judge Burnett allowing the respondent's (hereafter the claimant's) appeal against the decision of 14 May 2014 to make a deportation order in accordance with regulations 19, 21 and 24 of the Immigration (European Economic Area) Regulations 2006 (as amended) (hereafter the 2006 EEA Regulations). Regulation 21, which is the main provision of concern in this appeal, provides:
“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 the Child adopted by the General Assembly of the United Nations on 20th 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 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.
(7) In the case of a relevant decision taken on grounds of public health—
(a) a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease to which section 38 of the Public Health (Control of Disease) Act 1984 applies (detention in hospital of a person with a notifiable disease) shall not constitute grounds for the decision; and
(b) if the person concerned is in the United Kingdom, diseases occurring after the three month period beginning on the date on which he arrived in the United Kingdom shall not constitute grounds for the decision.”
The claimant is a citizen of Portugal aged 30 who claims to have arrived in the UK in May 2005. His history of offending began in July 2008 when he was arrested for wounding. On 9 January 2009 he was sentenced to fifteen months' imprisonment for an offence of wounding. In the same month the Home Office sent him a letter saying that should he come to the adverse interest of the authorities again they would consider deporting him. On 2 July 2013 he was convicted of sexual assault on a female and/or 24 July he was sentenced to two years' imprisonment and placed on the Sex Offenders register for ten years. The sentencing judge considered it was a disgraceful offence which happened late in the evening and involved the claimant grabbing a woman who was struggling at her front door to find her keys. He sexually assaulted her, then went away and came back, repeating the attack. On 16 September 2013 he was notified of his liability to deportation. On 14 May 2014 he was notified of the decision to make a deportation order.
At the date of hearing before the FtT judge the claimant had a child, E, with a Ms M and a stepson K, aged 2 years 9 months. His partner, Ms M, had two younger brothers aged 17 and 14, and another child. The claimant produced a number of items of evidence to the FtT including a NOMS report and an OASys Report dated 29 October 2014 which indicated the claimant's licence conditions ended in May 2015. The report also disclosed that he had a conviction for an offence he had committed in Portugal aged 17. At 2.6 this report stated that the claimant did not accept responsibility for the wounding offence despite his guilty plea, he stating it was self-defence despite the fact that the victim was stabbed in the back. The report noted the claimant's problems with alcohol and his drug misuse, including cocaine.
The FtT judge held that as the claimant had not been in the UK exercising Treaty rights for a continuous period of five years, he was entitled only to the lowest level of protection set out in regulation 21 ([100]).
The FtT Judge concluded that despite the claimant's expressions of remorse and contrition there was a real likelihood that he may offend again. He concluded that the claimant represented a genuine, present and sufficiently serious threat to one of the fundamental interests of society ([101]).
The judge then turned to the considerations listed in regulation 21(6). He noted that the claimant had a mother in Portugal; had been educated in Portugal; his partner and her family were Portuguese; these considerations were seen by the judge to show he still had social and cultural links to Portugal.
The judge considered the various children with whom the claimant was involved as stepfather, uncle and father. The judge considered he had no real contact with his stepson and that he had exaggerated the extent of his ties with his sister's...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2019-03-05, DA/00768/2017
...impulses to commit sexual or violent offences and the like may well fall into this category.” In MC (Essa principles recast) Portugal [2015] UKUT 520 (IAC) the Upper Tribunal summarised the relevant principles as follows at [29]: Essa rehabilitation principles are specific to decisions take......
-
Upper Tribunal (Immigration and asylum chamber), 2017-04-06, DA/00146/2013
...by this Tribunal to the expulsion of EU citizens in previous cases. We refer particularly to MC (Essa Principles Recast) Portugal [2015] UKUT 520 (IAC), a case concerning the Citizen’s Directive and the EEA Regulations, which decided that it is only if the personal conduct of the person con......
-
Upper Tribunal (Immigration and asylum chamber), 2021-05-20, DA/00723/2018
...... EWCA Civ 806 and Essa v. Secretary of State for the Home Department [2012]. EWCA Civ 1718 and ...following principles— . . (a) the. decision must comply with the principle of ...origin. … ” . . MC (Essa principles recast) . [2015] UKUT 520 (IAC) (11 September 2015) . . . . In MC. ( Essa ...1 WLR 2420 ; Secretary. of State for the Home Department v MG (Portugal) (Case C400/12) . [2014] 1 WLR 2441; FV. (Italy) v Secretary of State for ......
-
Upper Tribunal (Immigration and asylum chamber), 2017-01-24, DA/02456/2013
...dated 27 June 2016. Rehabilitation was a matter to be taken into account and the decision in MC (Essa principles recast) Portugal [2015] UKUT 00520 (IAC) was referred to, as was Article 3(1) of the Council Framework Decision 2008/909/JHA, which refers to the facilitation of social rehabilit......