R Keith Connell v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Richards,Lord Justice Flaux,Lady Justice Sharp |
| Judgment Date | 15 June 2018 |
| Neutral Citation | [2018] EWCA Civ 1329 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C1/2017/0478 |
| Date | 15 June 2018 |
[2018] EWCA Civ 1329
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Robin Purchas QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Sharp
Lord Justice Flaux
and
Sir Stephen Richards
Case No: C1/2017/0478
Philip Rule (instructed by Swain & Co) for the Appellant
David Blundell and Julia Smyth (instructed by the Government Legal Department) for the Respondent
Hearing date: 6 June 2018
This appeal concerns the relationship between the deportation provisions of the UK Borders Act 2007 (“the 2007 Act”), the provisions relating to deportation of EEA nationals contained in the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”), and the Secretary of State's policy relating to deportation of Irish nationals.
The appellant is an Irish national. In September 2011 he was sentenced in the United Kingdom to 11 years' imprisonment for serious sexual offences against a child. In July 2012 he was notified that the Secretary of State was considering his liability to deportation on grounds of public policy. In the course of subsequent correspondence, the appellant indicated his wish to be deported to Ireland and sought a decision to that effect. By letter dated 9 December 2015, however, he was informed that the Secretary of State had decided not to deport him. It was explained in a later letter that his case was considered not to meet the requirement of exceptional circumstances for deportation under the policy relating to deportation of Irish nationals. He was released from prison on licence in August 2016. The effect of his licence conditions is to require him to remain in the United Kingdom until February 2022, when the licence expires.
The appellant was granted permission to apply for judicial review of the decision of 9 December 2015 on two grounds: (i) that the policy or practice regarding the deportation of Irish nationals was ultra vires the provisions of the 2007 Act and/or the Immigration Rules, and (ii) that the Secretary of State had failed to give adequate reasons for the decision. In a detailed judgment Mr Robin Purchas QC, sitting as a Deputy High Court Judge, dismissed the judicial review claim on both grounds: see [2017] EWHC 100 (Admin), [2017] 4 WLR 38. The appeal to this court is brought, with permission granted by the deputy judge, on the first ground alone and limited to the effect of the 2007 Act.
The facts concerning the appellant's individual case are set out more fully in the judgment below but a fuller exposition is not needed for resolution of the issue of statutory construction that arises on the appeal.
It is helpful to summarise the statutory and policy framework governing deportation as it stood prior to the coming into force of the 2007 Act, before setting out the relevant provisions of the 2007 Act itself. I will then explain the deputy judge's construction of the 2007 Act and will proceed to discuss the issue of construction and to give my conclusions on the appeal.
The basic statutory provisions relating to deportation were contained, as they still are, in the Immigration Act 1971 (“the 1971 Act”), as amended from time to time. Section 3 provided:
“3(5) A person who is not a British citizen is liable to deportation from the United Kingdom if –
(a) the Secretary of State deems his deportation to be conducive to the public good; or
(b) another person to whose family he belongs is or has been ordered to be deported.
(6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.”
Where a person was liable to deportation under one or other of those provisions, then by section 5 the Secretary of State had a discretionary power to make a deportation order against him:
“5(1) Where a person is under section 3( 5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom ….”
By section 5(5), the supplementary provisions of Schedule 3 to the 1971 Act had effect with respect to the removal from the United Kingdom of persons against whom deportation orders were in force and with respect to the detention or control of persons in connection with deportation.
Section 7 contained an exemption from the deportation provisions for certain existing residents of the United Kingdom. In particular, section 7(1) provided that a citizen of the Irish Republic who was such a citizen on the coming into force of the 1971 Act and was then ordinarily resident in the United Kingdom “shall not be liable to deportation under section 3(5) if at the time of the Secretary of State's decision he had for the last five years been ordinarily resident in the United Kingdom and Islands”.
The 2006 Regulations
The deportation of EEA nationals was subject to a separate regime contained in the 2006 Regulations, made under section 2 of the European Communities Act 1972 by way of implementation of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”). The Directive dealt inter alia with the conditions that had to be satisfied before a Member State might restrict the rights of free movement and residence provided for by Article 21 of the Treaty on the Functioning of the European Union. I can focus on the implementing Regulations because it is common ground that they represented, so far as material, a full transposition of the relevant provisions of the Directive. (The 2006 Regulations replaced earlier regulations and were in force not only at the time when the 2007 Act came into force but also, subject to amendments in 2009, at the date of the decision challenged in these proceedings. They have since been replaced by the Immigration (European Economic Area) Regulations 2016.)
An “EEA decision” was defined in regulation 2(1) of the 2006 Regulations as “a decision under these Regulations that concerns … (c) a person's removal from the United Kingdom”; and “EEA national” was defined as “a national of an EEA State who is not also a British Citizen”.
In its original form, regulation 19(3) provided for a power of removal as follows:
“19(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if –
…
(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21 ….”
The regulation was amended in 2009 to provide more simply that “an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if … (b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21”. The differences are not material but I mention the later version both because it was in force at the date of the decision challenged and because use of the expression “EEA national” makes the scope of the regulation more readily understood.
Regulation 21 provided:
“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 ….
(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...
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