Secretary of State for the Home Department v Jacek Straszewski and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moore-Bick,Lord Justice Davis,Lady Justice Sharp |
| Judgment Date | 03 December 2015 |
| Neutral Citation | [2015] EWCA Civ 1245 |
| Docket Number | Case No: C5/2014/1644 |
| Court | Court of Appeal (Civil Division) |
[2015] EWCA Civ 1245
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Mr. Justice Foskett and Upper Tribunal Judge Eshun
[2014] UKAITUR DA011392012
Royal Courts of Justice
Strand, London, WC2A 2LL
Upper Tribunal Judge Conway
[2015] Ukaitur DA002252014
Lord Justice Moore-Bick
Vice-President of the Court of Appeal, Civil Division
Lord Justice Davis
and
Lady Justice Sharp
Case No: C5/2014/1644
C5/2015/1355
Ms Susan Chan (instructed by the Government Legal Department) for the appellant
Mr. Richard Drabble Q.C. and Ms Gilda Kiai (instructed by Wilson Solicitors) for Mr. Straszewski
Mr. Kersys appeared in person
Hearing date : 21 st October 2015
Background
These two appeals by the Secretary of State for the Home Department against decisions of the Upper Tribunal have been heard together because they raise similar questions concerning the application of Regulation 21 of the Immigration (European Economic Area) Regulations 2006 ("the Regulations").
Nationals of states making up the European Economic Area ("EEA nationals") who have acquired a right of permanent residence in this country enjoy enhanced protection against deportation. The degree of protection varies in accordance with the period of residence. The present appeals concern nationals of Poland and Lithuania, each of whom has acquired a right of permanent residence, having lived in this country for over five years. Each has been convicted of a number of criminal offences, as a result of which the Secretary of State has decided that it would be appropriate to deport him. The question that arises for decision is whether that course is open to her.
Regulation 21
The Regulations were made in order to implement Directive 2004/38/EC, sometimes known as the 'Citizenship Directive', but since they do not depart from the terms of the Directive in any significant respect, it is common ground that there is no need to refer to the Directive itself. In the Regulations an "EEA decision" includes a decision under the Regulations that concerns a person's removal from the United Kingdom. Regulation 19(3)(b) gives the Secretary of State power to remove an EEA national if she has decided that his removal is justified on grounds of public policy, public security or public health, in accordance with regulation 21.
The material parts of Regulation 21 itself provide as follows:
" 21.—Decisions taken on public policy, public security and public health grounds
(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.
(2) …
(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) …
(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."
Jacek Straszewski
Mr. Straszewski was born in Poland on 24 th February 1987 and is therefore now a few months short of his 29 th birthday. He came to this country with his mother in October 1998 when he was 11 and by the end of 2003 had acquired a right of permanent residence. On 9 th June 2010, while drunk, he attacked another man with a broken glass, causing serious injuries to his face and neck. He later pleaded guilty to a charge of unlawful wounding. Subsequently, while on bail for that offence, together with another man he broke into a flat occupied by two young women with a view to stealing anything of value. When the occupants returned home they saw the door to the flat open and accosted the burglars. The two men repeatedly punched and kicked the women before making their escape. On 19 th November 2010 Mr. Straszewski pleaded guilty to two counts of robbery and was sentenced to 42 months' imprisonment. Subsequently, on 24 th March 2011, he was sentenced to 15 months' imprisonment consecutive in respect of the earlier offence of unlawful wounding. He was released from prison on 26 th December 2012 and was immediately taken into immigration detention.
In the light of the Mr. Straszewski's convictions the Secretary of State decided that his removal was in the public interest and was justified on the grounds of public policy and public security. She therefore made a decision to deport him. His appeal to the First-tier Tribunal was allowed on the grounds that he had resided in the United Kingdom for more than ten years and that a decision to remove him could not be taken except on imperative grounds of public policy or public security, as provided for in regulation 21(4). Despite the gravity of the respondent's offending, the tribunal did not consider that requirement to be satisfied.
The Secretary of State appealed to the Upper Tribunal. Much of the tribunal's decision is directed to the question of Mr. Straszewski's period of lawful residence in this country, because that had an important bearing on the level of protection to which he was entitled. It held that he had not resided lawfully in this country for as long as ten years and was therefore entitled to only the lower level of protection provided for by regulation 21(3). That is not now in dispute. The tribunal therefore set aside the decision of the First-tier Tribunal and remade the decision. The question it had to decide was whether the Secretary of State's decision to remove Mr. Straszewski was justified on serious grounds of public policy or public security. Having considered the nature of his offending and various reports directed to the risk of his further offending, including two from an independent psychiatrist, Dr. Joanna Dow, the tribunal concluded that he did not pose a serious threat of harm to the public and that his removal was not permitted by regulation 21(3). It also found that removal would involve a disproportionate interference with his right to respect for family and private life under article 8 of the European Convention on Human Rights. It therefore dismissed the appeal.
This is the Secretary of State's appeal against the decision of the Upper Tribunal. Miss Chan submitted on behalf of the Secretary of State that the tribunal's decision was flawed because it had failed to explain why in the light of Dr. Dow's report the respondent did not pose a serious threat of harm to the public and because when reaching its decision it had failed to take into account the public interest in deterring other foreign nationals from offending or the need to reflect the public's revulsion at the commission of serious crimes of the kind of which Mr. Straszewski had been convicted. She relied on the decision in RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651 in support of her submission that factors of that kind ought to be taken into account when considering whether the removal of an offender pursuant to the Regulations is justified. In substance, she sought in that respect to assimilate the position of an EEA national to that of any other foreign criminal whose removal is required under section 32 of the UK Borders Act 2007.
Mr. Richard Drabble Q.C. for the respondent submitted that there was a fundamental difference between the principles underpinning section 32 of the UK Borders Act, which apply to foreign criminals generally, and those which underpin the Regulations applicable to EEA nationals. He submitted that the Directive and the Regulations are to be understood against the background of the right of free movement enshrined in the Treaties establishing the European Union and that factors such as deterrence and public revulsion, which are relevant when considering deportation under the UK Borders Act, have no part to play in a decision under the Regulations. He submitted that it was open to the Upper Tribunal in this case to reach the conclusion that Mr. Straszewski's conduct did not provide serious grounds of public policy or public security sufficient to justify a decision to remove him.
Darius Kersys
Darius Kersys is a national of Lithuania who came to this country in April 2004 and subsequently acquired a permanent right of residence. In January 2013 he was convicted of three offences of identity fraud, by which he and his wife used bank cards belonging to a vulnerable elderly neighbour whom they had befriended in order to...
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