The Secretary of State for the Home Department v FV (Italy)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Aikens,Lady Justice Rafferty |
| Judgment Date | 14 September 2012 |
| Neutral Citation | [2012] EWCA Civ 1199 |
| Court | Court of Appeal (Civil Division) |
| Date | 14 September 2012 |
| Docket Number | Case No: C5/2008/1815 |
[2012] EWCA Civ 1199
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE STOREY
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Aikens
and
Lady Justice Rafferty
Case No: C5/2008/1815
Mr Kieron Beal QC (instructed by the Treasury Solicitor) for the Appellant
Mr Nick Armstrong (instructed by Messrs Luqmani Thompson & Partners) for the Respondent
Hearing dates : 30 & 31 May 2012
This is an appeal by the Secretary of State for the Home Department ("the Secretary of State") against a decision of the Asylum and Immigration Tribunal, Senior Immigration Judge Storey presiding, notified on 1 May 2008. The Tribunal allowed an appeal by FV ("the respondent") against the dismissal by the Tribunal on 1 October 2007 of FV's appeal against the decision of the Secretary of State on 17 May 2007 to confirm a deportation decision made on 23 March 2007.
FV is a citizen of Italy and was born on 18 December 1957. He arrived in the United Kingdom on 3 March 1985, aged 27, and married a UK citizen in August 1985. He and his wife have five children. They bought a property in joint names. While his wife worked as a teacher, he cared for the children. He left the marital home in 1998 and in May 1999 moved into accommodation with Mr Edward Mitchell, with whom he had a turbulent relationship.
On 1 March 2001, FV killed Edward Mitchell. Both men had been drinking. A fight occurred and the respondent struck Mitchell at least 20 blows to the head with weapons, including a hammer. He then strangled Mitchell with the flex from an iron.
The respondent was convicted of manslaughter at the Central Criminal Court, the jury holding that murder was reduced to manslaughter by reason of provocation. He was sentenced to 8 years imprisonment on 2 May 2002. The respondent had previous convictions for assault on police, driving a motor vehicle while unfit through drink or drugs and driving while disqualified.
On 3 July 2006, the respondent was released to hostel accommodation but, because no place was available to him, he was rearrested. He subsequently received damages of £25,000 for the unlawful imprisonment which followed.
A series of points arise as to the status of the respondent in the United Kingdom and as to the extent to which the power of the Secretary of State to deport him is limited by the requirements of Directive 2004/38/EC of 29 April 2004 ("the Directive") and Regulations made under it, the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"). The purposes of the Directive are set out in recitals which include:
"17. Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.
…
22. The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security or public health. In order to ensure a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their family members may be denied leave to enter or may be expelled, this Directive should replace Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals, which are justified on grounds of public policy, public security or public health.
23. Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.
24. Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life…"
The subsequent jurisprudence of the CJEU appears to me to adhere closely to the principles stated in those paragraphs.
The ground of appeal to the Immigration Tribunal was that "the decision to deport is unlawful and not consistent with the high threshold set under paragraph 21(4)(a) Immigration (European Economic Area) Regulations 2006." Regulation 21, transposing article 28 of the Directive, provides, in so far as is material:
"(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, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(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.
(7) …"
In LG in the Court of Appeal ( [2008] EWCA Civ 190) Carnwath LJ referred, at paragraph 14, to the levels of protection provided:
"As appears from the emphasised words above in Regulation 21(1)-(4), the 2006 Regulations have introduced a new hierarchy of levels of protection, based on criteria of increasing stringency:
(1) A general criterion that removal may be justified 'on the grounds of public policy, public security or public health';
(2) A more specific criterion, applicable to those with permanent rights of residence, that they may not be removed 'except on serious grounds of public policy or public security';
(3) The most stringent criterion, applicable to a person 'who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision', who may not be removed except on 'imperative grounds of public security'."
Regulation 15, to which regulation 21(3) refers, provides:
"15. Permanent right of residence
(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
(c) a worker or self-employed person who has ceased activity;
(d) the family member of a worker or self-employed person who has ceased activity;
(e) a person who was the family member of a worker or self-employed person where—
(i) the worker or self-employed person has died;
(ii) the family member resided with him immediately before his death; and
(iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;
(f) a person who—
(i) has...
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