The Secretary of State for the Home Department v Arturas Dumliauskas and Others
| Jurisdiction | England & Wales |
| Judge | Sir Stanley Burnton,Lord Justice Floyd,Lord Justice Jackson |
| Judgment Date | 26 February 2015 |
| Neutral Citation | [2015] EWCA Civ 145 |
| Docket Number | Case Nos: C5/2014/0277 C5/2014/0522 |
| Court | Court of Appeal (Civil Division) |
| Date | 26 February 2015 |
[2015] EWCA Civ 145
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 Jackson
Lord Justice Floyd
and
Sir Stanley Burnton
Case Nos: C5/2014/0277
C5/2013/2956
C5/2014/0522
Karen Steyn QC and Paul Greatorex (instructed by the Treasury Solicitor) for the Secretary of State
Hugh Southey QC and Glen Hodgetts (instructed by Wilson Solicitors LLP) for AD
Hugh Southey QC and Glen Hodgetts (instructed by South West Law Solicitors) for ME
LW did not appear and was not represented
Hearing dates: 20, 21 January 2015
Introduction
The Citizenship Directive ( Directive 2004/38/EC of the European Parliament and of the Council 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"), brought into force in the UK by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) ("the Regulations"), confirms the right of free movement and of residence of EU citizens within the Union, and subjects that right to certain conditions. However, it also confers power on Member States to expel nationals of other Member States. These appeals concern the attempts by the Secretary of State to exercise the powers conferred by Articles 27 and 28 of the Directive, implemented by Regulation 21 of the Regulations. It has not been suggested that the Regulations do not faithfully transpose the provisions of the Directive, and for convenience I shall in general refer to the provisions of the Directive rather than those of the Regulations.
Of the present Respondents, AD and ME have and had no right of residence conferred by the Directive. Before the Upper Tribunal, the Secretary of State conceded that LW did have a permanent right of residence, but reserved the right to withdraw her concession if her appeal to this Court is successful. Each of the Respondents was convicted of crimes for which prison sentences were imposed. In each case, the Secretary of State was of the opinion that his conduct did "represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society" (Article 27.2) sufficient to justify his expulsion. The Upper Tribunal in each case came to the same conclusion, and in the case of LW was further satisfied that the requirement of serious grounds of public policy or public security (Article 28.2) was satisfied, but rejected the Secretary of State's case on the ground that, having regard to the better prospects of the rehabilitation of the Respondent in question if he remained in this country, it would be disproportionate to expel him.
In each case, the Secretary of State has appealed to this Court on the ground that the relative prospects of rehabilitation are irrelevant in the case of someone who has no permanent right of residence in this country. She also contends that the Tribunal gave manifestly excessive weight to rehabilitation, and that the evidence before the Tribunal did not justify its finding that rehabilitation was more likely in this country rather than the country of nationality.
This is my judgment on the issues raised in these appeals.
The facts and the decisions below
AD
AD is a citizen of Lithuania. He was born on 4 October 1965. He came to this country in 1998. He had served in the army of the USSR. The First-tier Tribunal summarised his criminal record as follows:
Whilst in the United Kingdom the appellant amassed a criminal record comprising one offence against [the] person, twelve theft and kindred offences, one offence relating to police, courts, prisons, one drugs offence, 6 firearms and offensive weapons offences. On 8 June 2010 the appellant was convicted of robbery and sentenced to three and a half years' imprisonment concurrent with 2 counts of theft in respect of going equipped to steal.
At the date of the First-tier Tribunal decision, AD remained in custody.
As a result of his service in Afghanistan, AD had become addicted to heroin. His offending was connected with his addiction: essentially, he said that he committed his offences to obtain money for drugs.
There was a consultant psychiatrist's report before the Tribunal. She assessed AD as suffering from some residual symptoms of post-traumatic stress disorder. In her opinion, he suffered from mental and behavioural disorders due to the use of opioids. He met the criteria for dependence syndrome. He was currently on a clinically-supervised maintenance or replacement regime, i.e. controlled dependence. She noted that AD had been abstinent from heroin since his detention in 2010 "although this [was] in a highly controlled environment". Similarly, he was abstinent from alcohol in his protected environment. She graded his risk of reoffending in the next year if returned to the community in the UK as medium, and his risk of serious offending as low. She thought that if he remained free of illicit substances and drank alcohol in moderation, obtained gainful employment, appropriate accommodation and continued to engage with healthcare professionals, his risk of reoffending would be significantly decreased.
There was also a probation officer's letter, which referred to the restrictions that would apply if AD were released, which would include requirements to attend appointments with the Community Mental Health Team, co-operation with care or treatment, and the requirement to attend appointments with the local Drug Treatment Agency and to co-operate with their recommended care or treatment. Similarly, he would be required to attend appointments with an alcohol treatment provider and to co-operate with their recommended care or treatment. AD told the Tribunal that he would comply with such conditions if he were released.
The Tribunal found that AD was "genuinely contrite and genuinely determined to rehabilitate himself – despite his previous relapses."
The Tribunal also found that AD, who had scarcely worked while in the UK, had not established that he was integrated into society in the United Kingdom. It stated:
The appellant because of his drug addiction has throughout his period in the United Kingdom effectively lived on the fringes of society committing regular offences to fuel his drug addiction – and cannot be regarded as having integrated into United Kingdom society in any meaningful way.
AD's family connections in the UK were weak. He has a son and grandson here, but he had very limited contact with them. AD said that his son had not visited him in prison for 1 1/2 years. He was single. His mother and sister are in Lithuania.
Because of the risk of his relapse, the Tribunal found that his conduct represented a present threat. Accordingly, the precondition for his removal under Art 27.2 and Regulation 19(3) was satisfied.
In these circumstances, the Secretary of State was entitled to remove AD provided she satisfied the test of proportionality. On this, the First-tier Tribunal was satisfied that he was "genuine in his determination to rehabilitate – and has aspects of his physical medical condition and the desire to spend time with his grandson, as factors encouraging rehabilitation". There were "reasonable prospects of believing that the prospects of rehabilitation of the appellant in the United Kingdom are substantial". No evidence had been put before the Tribunal of the prospects of rehabilitation in Lithuania. Paragraph 132 of the Tribunal's determination contains the substance of its decision:
"We also emphasise that the existence of a present threat affecting the fundamental interest of society would very substantially diminish if the appellant did not relapse and availed himself of the supportive rehabilitative programmes which will be available. We reiterate that there is no indication that any such rehabilitative program would be available in Lithuania. We accept that Lithuania is an EEA country and that appropriate medical treatment would be available for the appellant in Lithuania. There is, however, no evidence that the Lithuanian authorities would have either the capacity or the interest to put in place the rehabilitative programme referred to in the letter from the appellant's Probation Officer."
On this basis, the Tribunal found that the Secretary of State's decision to remove AD did not comply with the requirement of proportionality, and it allowed his appeal.
The Secretary of State appealed to the Upper Tribunal. In her application for permission to appeal, she contended that the relative prospects of rehabilitation are irrelevant to the assessment of proportionality in the case of someone who does not have the permanent right of residence under the Regulations and the Directive. She also contended that the First-tier Tribunal had erred in law in placing manifestly undue weight on the relative prospects of rehabilitation, and that the Tribunal had wrongly placed an onus of proof on the Secretary of State as to the availability of support for AD in Lithuania.
The Upper Tribunal held that the relative prospects of rehabilitation in the UK and in Lithuania were a factor relevant to the assessment of proportionality; accordingly the First-tier Tribunal had not erred in taking it into account. The Upper Tribunal summarised its conclusion in paragraph 31 of its determination:
31. The negative impact of removal on rehabilitation will of...
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...on the further guidance on the issue of rehabilitation in EEA deportation cases given by the Court of Appeal in Secretary of State for the Home Department v Dumliauskas & Ors [2015] EWCA Civ 145. Mr Melvin submitted that if the judge had had the benefit of this guidance he would have conclu......
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...account in the proportionality assessment required by reg 21(5) and (6) ((Secretary of State for the Home Department v Dumliauskas [2015] EWCA Civ 145, [41]). Such prospects are to be taken into account even if not raised by the offender (Dumliauskas at [52]). Gauging such prospects require......
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Upper Tribunal (Immigration and asylum chamber), 2017-04-06, DA/00146/2013
...facing in the country of origin of the person concerned.” The decision in Secretary of State for the Home Department v Dumliauskas [2015] EWCA Civ 145 also featured in the arguments of counsel. We note the prominence which this decision gives to the risk of future offending. However, we der......
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Upper Tribunal (Immigration and asylum chamber), 2016-02-01, DA/00724/2014
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