The Queen (oao) Daha Essa v Upper Tribunal and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Toulson,Lord Justice Aikens |
| Judgment Date | 21 December 2012 |
| Neutral Citation | [2012] EWCA Civ 1718 |
| Docket Number | Case No: C4/2012/1547 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 December 2012 |
[2012] EWCA Civ 1718
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMIN COURT (LANG J)
REF: CO/9416/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Toulson
and
Lord Justice Aikens
Case No: C4/2012/1547
Mr Richard Drabble QC and Mr Ranjiv Khubber (instructed by Irving & Co Solicitors) for the Appellant
Mr Jonathan Hall (instructed by Treasury Solicitors) for the Respondents
Hearing date : 29 November 2012
Until 2000, the deportation of a foreign national who was convicted of a serious criminal offence was only susceptible to challenge in the courts of this country on traditional domestic public law grounds. Following the coming into force of the Human Rights Act 1998, deportation decisions also fall to be considered by reference to the European Convention on Human Rights and Fundamental Freedoms (ECHR). Sometimes Article 2 or Article 3 is engaged but in most cases the focus is on Article 8 and the right to respect for private and family life. As Article 8 rights are qualified, the issue is often proportionality. However, the story does not end there. If the Secretary of State wishes to deport a foreign criminal who is a national of a Member State of the European Union, she is now subject to additional constraints under EU law. Directive 2004/38/EC of the European Parliament and of the Council is generally known as the " Citizens' Directive". Its requirements were transposed into domestic law by the Immigration (European Economic Area) Regulations 2006 (the Regulations). The Directive is concerned with "Union citizens". A Union citizen is defined as "any person having the nationality of a Member State": Article 2(1). Recital (3) of the Directive states that Union citizenship "shall be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence". Union citizens have enhanced protection against deportation or "expulsion". Article 28 of the Directive provides:
"1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided in its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security."
If the Union citizen has resided in the host Member State for the previous ten years, expulsion must be on "imperative grounds of public security": Article 28.3. In any event, there is a requirement of proportionality; decisions must be based "exclusively on the personal conduct of the individual concerned" and previous criminal convictions "shall not in themselves constitute grounds for taking such measures": Article 27.2. All this is reflected in regulation 21 of the Regulations. That, then, is the current legal landscape.
The facts
The appellant was born in Somalia. He is now 2Before his first birthday he moved with his family to the Netherlands. They became Dutch nationals. In July 2001 he moved to the United Kingdom with his mother and some of his siblings. He underwent secondary and college education here. In June 2006 he was convicted of handling stolen goods and received a referral order. In March 2007 he was fined for a Bail Act offence. More significantly, on 23 April 2008, at Snaresbrook Crown Court, he was convicted of an offence of robbery and was sentenced to five years' detention in a young offender institution. In due course, the Secretary of State decided to make a deportation order pursuant to section 3(5)(a) of the Immigration Act 1971 – the "conducive to the public good" ground. The decision referred to the relevant provisions of the 2006 Regulations.
The procedural history
The appellant appealed to the First-tier Tribunal (FTT) which dismissed his appeal on 18 April 2011. He sought permission to appeal to the Upper Tribunal (UT) but permission was refused by the FTT and by the UT. He then sought permission to apply for judicial review of the UT's refusal of permission to appeal on the basis set out in R (Cart) v Upper Tribunal [2011] 3 WLR 107. Permission to apply was granted on a limited basis by Mitting J but the substantive application for judicial review was dismissed by Lang J on 1 June 2012: [2012] EWHC 1533 (QB). Sir Richard Buxton granted permission to appeal to this Court.
The issue
The issue raised on this appeal is narrow but important. The case for the appellant is that the determination of the FTT was legally flawed because its analysis was essentially one of proportionality as required by Article 8 of the ECHR without consideration of the EU dimension. There is no doubt that the FTT was mindful of both regimes. The criticism is that it failed to appreciate the full content of the requirements of EU law. The criticism is founded on recent jurisprudence of the Court of Justice of the European Union (CJEU) and cognate domestic developments.
The authorities
The most recent authority produced to the FTT was Bulale v Secretary of State for the Home Department [2009] 2 WLR 992, which bore factual similarities to the present case. It concentrated on the language of the Directive and the 2006 Regulations, the question whether the appellant remained a serious threat and proportionality. It informed the decision of the FTT in the present case.
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