Mendes Machado v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lady Justice Arden,Lord Justice Gage |
| Judgment Date | 19 May 2005 |
| Neutral Citation | [2005] EWCA Civ 597 |
| Date | 19 May 2005 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C4/2004/2024 |
[2005] EWCA Civ 597
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Appeal No. TH/43669/031
Royal Courts of Justice
Strand, London, WC2A 2LL
lord Justice Sedley
Lady Justice Arden and
Lord Justice Gage
Case No: C4/2004/2024
Mr Paul Draycott (instructed by Messrs Howells) for the A ppellant
Mr Jonathan Swift (instructed by The Treasury Solicitor) for the Respondent
The issues
The central question of law in this appeal concerns the correct approach of appellate bodies to a decision of the Home Secretary to deport on grounds of public policy a foreign national married to an EU national with a right of establishment in the United Kingdom. The substantive issue in the appeal is whether the decision of the IAT to uphold the adjudicator's rejection of an appeal against a decision to deport the appellant is sustainable.
History
The appellant is an Angolan national who entered the United Kingdom in June 1996 and at once claimed asylum. It was refused, and an appeal against the refusal was dismissed, but in August 1998 he failed to attend for removal. Somehow he was left at large notwithstanding several arrests. He was disqualified from driving (presumably following a conviction) and then convicted in October 2000 of driving while disqualified, receiving a community sentence. He repeated the offence and in July 2001 was sentenced to two months' imprisonment for this and for obstructing the police.
Then in January 2002 he was arrested for a series of offences of obtaining property and money by deception. In short, he had been claiming social security to which he was not entitled, in an amount totalling over £8,000, in his own name and in two false names over a period of more than a year. In May 2002 he was sentenced to two years' imprisonment with a recommendation for deportation. In September 2002, while he was serving the custodial element of the sentence, he was served with notice intention to remove him.
Two months later, in November 2002, he married a British national, Dawn Marris, who had two children (now in their mid-teens) by an earlier marriage. In January 2003 the appellant made a human rights claim on the basis of his new family situation, but it was rejected and an appeal against the rejection failed. Then, on 20 February 2003, the appellant's wife became a citizen of the Republic of Ireland. She had a legal entitlement to do so because her parents were Irish nationals, although she herself had never lived there and continued throughout the material period to live and work in Sheffield. But it is on the basis of her Irish citizenship that the appellant, as her spouse, now asserts the rights which are in issue.
At an early stage the Home Secretary took the view that this was a marriage of convenience and therefore outside the ordinary rules, but he has abandoned this contention. Mr Jonathan Swift on his behalf therefore accepts that both the appellant's marriage and his wife's acquisition of Irish citizenship are legal realities.
On 24 March 2003 the Home Secretary served a document headed: "NOTICE OF DECISION TO REMOVE taken under the Immigration (European Economic Area) Regulations 2000". Having mentioned the offences of deception and the sentence, the notice recorded that in view of the appellant's marriage his deportation was being reconsidered "on the basis that you are the family member of a European Economic Area national". I will return to the decision contained in the notice and to the reasons for it.
The law
A fundamental part of the EU Treaty is the right of nationals of member states to work and establish themselves throughout the EU. Regulation EEC 1612/68, by art. 10, includes spouses and children under 21 in this right. The right, however, is not unconditional.
The regulations in question ("the 2000 Regulations) by reg. 21(3)(b) permit the removal from the United Kingdom of a foreign national who is a member of the family of a qualified person—which the appellant's wife is—if "the Secretary of State has decided that his removal is justified on grounds of public policy, public security or health". By reg. 23 it is provided, in relation to these grounds, that:
(b) a decision taken on one or more of the relevant grounds must be based exclusively on the personal conduct of the individual in respect of whom the decision is taken;
(c) a person's previous criminal convictions do not, in themselves, justify a decision on grounds of public policy or public security;
…………..
(f) a person is to be informed of the grounds of public policy, public security or public health upon which the decision taken in his case is based ….
The 2000 Regulations are made in the exercise of ministerial powers under s.2(2) of the European Communities Act 1972 "in relation to measures relating to rights of entry into, and residence in, the United Kingdom", and under s.80 of the Immigration and Asylum Act 1999, which relates to the appeal rights of EEA nationals and their families. The explanatory note to the Regulations indicates that among their purposes is to give effect to Council Directive 64/221/EEC on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. By art. 1 these govern among other things the expulsion of spouses of nationals of EU states residing in other states. The provisions of reg. 23(b) and (c)—ante—are required by art.3 of the Directive; those of (f) by art. 6. Art. 8 requires access to "the same legal remedies … as are available to nationals of the State concerned in respect of acts of the administration".
It is submitted by Mr Paul Draycott for the appellant that the ECJ's jurisprudence on these measures binds UK tribunals and courts in applying the 2000 Regulations since, at least in the parts that matter to this appeal, their purpose is to carry the UK's EU obligations into effect. Mr Swift contests this: he relies on the decision of the ECJ itself in Secretary of State for the Home Department v Akrich [2004] 2 WLR 871 that art. 10 of Regulation EEC 1612/68 (ante) does not apply to a spouse who was not lawfully resident in a member state at the time of the move to the member state from which it is now proposed to expel him. The appellant, he submits, could not have been lawfully resident in Ireland at the time of his wife's putative move to Great Britain, and so acquired no EU rights. His only rights are under the 2000 Regulations, construed without reference to ECJ jurisprudence.
This problematical distinction, which was not argued below, will matter only if it appears that there may be a different outcome depending on which approach is taken. I prefer not to decide this underlying question of law unless it becomes necessary to do so.
The appellate jurisdiction and ECHR art. 8
What does have to be decided is the nature and ambit of each level of appeal in a case such as this, falling as it does into the period between the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002.
Reg.29(1) of the 2000 Regulations gives a right of appeal "against an EEA decision", which it is accepted the material decision was. By reg. 29(2):
Such an appeal may in particular be made on the ground that, in taking the decision, the decision-maker acted in breach of that person's human rights.
The regulation goes on to provide that appeal shall be to an adjudicator and that Sch 4 to the 1999 Act, to the extent scheduled to the Regulations, shall govern such appeals. Sch.2 to the Regulations incorporates para. 21 of Sch 4 to the Act, which provides:
(1)… an adjudicator must allow an appeal if he considers
(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or
(b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently,
but otherwise must dismiss the appeal.
It is common ground, in the light of this, that the adjudicator's function in a case like the present is effectively to retake the Home Secretary's decision. In doing so the adjudicator will have regard to the Home Secretary's policy in relation to the deportation of offenders as a material fact but not as a substitute for or a fetter on the adjudicator's own judgment: cf. Huang v Home Secretary [2005] EWCA Civ 105, esp §62. It is also common ground that under the regime in force at the material time the IAT was not confined to issues of law. By para. 22(2) of Sch 4 to the 1999 Act it was empowered to "affirm the determination or make any other determination which the adjudicator could have made". While this is not a blank cheque, it authorises the IAT to re-evaluate the consequences of the adjudicator's primary fact-findings, and that is what the IAT did here in relation to the deportation decision.
What was, however, treated separately by all parties at both levels was the appellant's art. 8 claim based on the state's duty to respect his family life. Particularly in the light of reg. 29(2) of the 2000 Regulations (ante), this seemed to the court to be in principle a mistaken approach, and both counsel agreed, when it was put to them, that the right approach is to include any art. 8 issue in the evaluation of the proportionality of deporting a foreign national married to an EU national who is here by...
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