Miranda v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Briggs |
| Judgment Date | 11 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1394 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 November 2016 |
| Docket Number | Case No: C1/2015/1985 |
[2016] EWCA Civ 1394
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Briggs
Case No: C1/2015/1985
Mr David Mitchell (instructed by the Government Legal Department) appeared in person on behalf of the Appellant
The Respondent did not appear and was not represented
This is an appeal from a decision of Immigration Judge Pinkerton sitting in the Upper Tribunal (Immigration and Asylum Chamber) dated 25 March 2015. By the decision under appeal the judge allowed Mr Miranda's appeal against the Secretary of State's decision to make a deportation order against him after an earlier decision of the First-tier Tribunal had been set aside for error of law. The Secretary of State was refused permission to appeal by Lloyd Jones LJ and this is the oral renewal of the permission to appeal application, at which I have been much assisted by the concise written and oral submission of Mr Mitchell.
The background can be briefly stated. Mr Miranda is a Portuguese national born on Madeira on 10 December 1974. He has been resident in the United Kingdom since at least 1977, that is, for most of the nearly 42 years of his life thus far. He has one daughter with a former partner who was born in 2001. At the time of the hearing before Judge Pinkerton he was looking forward to the birth of another child with his current partner with whom he had been in a relationship since 2007, and Mr Miranda's daughter, current partner and former partner as well as his parents and brother are all resident in the UK. Mr Miranda speaks Portuguese but otherwise has limited links with his country of origin.
Unfortunately, Mr Miranda has a history of class A drug abuse and a persistent record of criminal offending. He has had 28 convictions for 53 offences between 1990 and 2013, for several of which he received custodial sentences including for theft, robbery and burglary. A previous deportation order was made against him in 2006 but subsequently withdrawn. Following his conviction for burglary with intent to steal in October 2013 the Secretary of State decided for the second time to make a deportation order against him on the basis that his presence in the United Kingdom posed a genuine, present and sufficiently serious threat to the interests of public policy under regulations 19 and 21 of the Immigration (European Economic Area) Regulations 2006 ("the Regulations"). These implement the Directive 2004/38/EC on the rights of citizens of the European Union and their family members to move and reside freely within the territory of the Member States ("the Directive"). Mr Miranda appealed the decision to make a deportation order to the First-tier Tribunal. That decision, as I have said, to allow his appeal was set aside by the Upper Tribunal for error of law and his appeal therefore came to be considered afresh by Judge Pinkerton.
The issue before the tribunal judge was whether the Secretary of State's decision to make a deportation order was lawful under regulations 19 and 21, and the judge had to consider firstly whether Mr Miranda could qualify for enhanced protection available either under regulation 21(3) or under regulation 21(4)(a). I do not need to set out the separate levels of enhanced protection save to note that if he had qualified for the second one he could not be deported except on imperative grounds of public security. But if he did not qualify for either of those enhanced levels of protection, the judge had to decide whether Mr Miranda's deportation would nevertheless be lawful under the ordinary test set out in regulation 21(5)(a)-(e) and 21 (6), which in broad terms requires that the decision comply with the principle of proportionality taking into account a number of non-exclusive factors listed in the regulations and any other relevant factors. By his decision the judge allowed Mr Miranda's appeal and found that while Mr Miranda could not show the requisite periods of continuous residence needed to qualify for either level of enhanced protection, nonetheless the decision to deport him was disproportionate.
The Secretary of State seeks to set that decision aside. This is of course a second appeal so that I have to apply the second appeal test which requires either compelling reasons to be shown why the appeal should be heard as a full appeal or the...
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