MG and VC (EEA Regulations 2006; “conducive” deportation)
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 23 May 2005 |
| Neutral Citation | [2006] UKAIT 53 |
| Court | Asylum and Immigration Tribunal |
| Date | 23 May 2005 |
[2006] UKAIT 53
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Freeman
Senior Immigration Judge Jordan
For the first Appellant: Ms N Rogers, instructed by Luqmani Thompson & Partners
For the second Appellant: Mr Luqmani of Luqmani Thompson & Partners
For the Respondent: Mr Montilla, Home Office Presenting Officer
MG and VC (EEA Regulations 2006; “conducive” deportation) Ireland
(1) The Immigration (European Economic Area) Regulations 2006 contain the law relating to all EEA appeals dealt with from the date of the date of their commencement: the old Regulations are not applicable to the old appeals; (2) A decision to deport an EEA national is a decision “under” the Regulations and is therefore a “relevant decision” for the purposes of them, however it is expressed; (3) Regulation 21 (and the provisions of Directive 2004/38/EC) may make it more difficult for the Secretary of State to remove or deport an EEA national on the ground of criminal conduct than appeared to be the case previously.
These two reconsiderations were heard together. The Appellants are citizens of European Union countries who have successfully appealed against decisions that they should be deported from the United Kingdom on the ground that their deportation is conducive to the public good. The reconsideration is, therefore, in each case, at the instance of the Respondent. These cases are the first opportunity that a senior panel of the Tribunal has had to examine Directive 2004/38/EC of the European Parliament and of the Council and the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) in the context of the present intense public interest in the deportation of non-UK nationals convicted of criminal offences.
In order to set that context a little more widely, it may be appropriate briefly to indicate the principles applying to such action. A person who is not a British citizen is, under s3(5)(a) of the Immigration Act 1971 as amended, liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good. In addition, by s3(6) of the same Act, a person who is not a British citizen is liable to deportation in certain circumstances if, on his conviction for an offence punishable with imprisonment, he is recommended for deportation by the court. The power under s3(5)(a) is not limited to those convicted of criminal offences, although the vast majority of decisions made under that section relate to those who have been convicted of criminal offences.
The decision to make a deportation order is never automatic. Every case has to be considered on its merits, as provided for in the Immigration Rules, currently in paragraph 364 of HC 395. Before making a decision to deport a person, the Secretary of State or his officer is required to take into account all relevant factors known to him, including age; length of residence in the United Kingdom; strength of connections with the United Kingdom; personal history, including character, conduct and employment record; domestic circumstances; previous criminal record and the nature of any offence of which the person has been convicted; compassionate circumstances; and any representations received on the person's behalf. The duty to take all relevant circumstances into account applies whether the liability to deportation arises under s3(5) or s3(6) of the 1971 Act. Even a recommendation by a criminal court, therefore, does not and cannot lead automatically to deportation. How many such recommendations do result in deportation is not known: from research undertaken by the Sentencing Guidelines Panel (Consultation Paper on Recommendations for Deportation (2005), p3, notes 3–4) it appears that 1996 was the last year for which such figures were routinely collected.
The Refugee Convention, as is well known, prohibits the removal of refugees to their own countries if they have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The prohibition on removal of Convention refugees is, however, removed in cases where the refugee has committed a “ particularly serious crime” and so constitutes a danger to the community of the country in which he is living. For the purposes of United Kingdom law, the phrase in inverted commas is defined by s72(2) of the Nationality, Immigration and Asylum Act 2002 as meaning a crime resulting, on conviction in the United Kingdom, to a sentence of at least two years' imprisonment. (There are similar provisions applying to those convicted outside the United Kingdom.) It is not known whether this provision of United Kingdom law amounts to a correct interpretation of the terms of the Convention.
Although in the circumstances we have just mentioned a person cannot escape deportation by claiming the benefits of the Refugee Convention, he cannot be deported if his deportation would breach his human rights. The legislation to that effect derives from the Human Rights Act 1998, which, with associated provisions relating to immigration, and changes to the Immigration Rules, came into effect on 2 October 2000. It follows that a person may not in practice be deported if the only country to which he could be deported is one where he would be at risk of torture or inhuman or degrading treatment or punishment, because his removal there would be a breach of his rights under Article 3. Other Articles of the European Convention on Human Rights may also have a practical effect on deportation cases, in particular Article 2 (right to life) and Article 8 (right to respect for private and family life). It is sometimes said that a criminal's invocation of his own human rights is inappropriate, or undeserved, or cynical. The position is, however, that the law of this country is that those rights are to be respected.
There is no doubt in general that the decision to make a deportation order on conducive grounds is, in part at least, a response to the individual's conduct. So much is clear from the fact that the recommendation for deportation can be made by a criminal court as part of the way in which it deals with an offender on conviction, and can itself be the subject of an appeal on sentence to the Court of Appeal (Criminal Division). In cases where no such recommendation is made, the assessment of the “ public good” clearly also includes the need to respond firmly to the commission of a serious crime (see N (Kenya) v SSHD [2004] EWCA Civ 1094, especially paragraphs [64]–[65] per May LJ, and [94] per Judge LJ). Although any recommendation for deportation has to be made at the time of sentence, however, and despite the fact that a deportation decision will be, in part, a response to the individual's past conduct, the appropriate time to make the decision will be shortly before it is to be carried out: that is to say, towards the end of a prison sentence ( Chindamo v SSHD 00/TH/02345).
When there has been a decision to make a deportation order, the person affected has a right of appeal. The availability and possible length of the appellate process has expanded considerably owing to legislative changes in recent years. Before 2000, decisions to make deportation orders on conducive grounds could be appealed only to the Immigration Appeal Tribunal, the upper tier of the old Immigration Appellate Authority. Thus, all these cases were considered by a relatively small number of individuals, who acquired some expertise in them. Under the provisions of the 1999 Act, conducive deportation appeals went at first instance to an Adjudicator, like all other immigration appeals, and so, like all other immigration appeals, carried the possibility of a further appeal to the Immigration Appeal Tribunal. That further appeal was restricted by the Nationality, Immigration and Asylum Act 2002 to an appeal on a point of law, and now takes the form of a reconsideration on a point of law.
Decisions to make a deportation order following the recommendation of a court could not be the subject of an appeal to the Immigration Appellate Authority until s82 of the 2002 Act came into force on 1 April 2003. All decisions to make deportation orders are now appealable and, once the appellate decision has been made, there may be a reconsideration within the terms of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.
The deportation of nationals of countries in the European Union and the European Economic Area has been subject to special restrictions from the beginning. Directive 64/221/EEC prevented the expulsion of a person exercising Treaty rights, or a member of his family, save on grounds of public policy, public security or public health. Article 3 of that Directive contains the following provisions:
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“1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned.
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2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures.
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In Monsignore v Oberstadtdirektor der Stadt Köln (Case 67/74) [1975] ECR 297, the German authorities sought to deport an Italian worker who had accidentally killed his brother whilst handling a gun which he had obtained apparently illegally. There was no suggestion that he would commit a similar offence again and the intention was that he be deported as a general deterrent to others. The European Court of Justice held that Article 3(2) prohibited deportation of an EEC national for that reason. In R v Bouchereau [1978] QB 732, where a French national had pleaded...
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