The Secretary of State for the Home Department v AA (Poland)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lady Justice Elisabeth Laing,Lord Justice Baker |
| Judgment Date | 19 January 2024 |
| Neutral Citation | [2024] EWCA Civ 18 |
| Year | 2024 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: CA-2023-000687 |
[2024] EWCA Civ 18
Lord Justice Baker
Lady Justice Elisabeth Laing
and
Lord Justice Warby
Case No: CA-2023-000687
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IAC)
Mrs Justice Collins Rice and Upper Tribunal Judge Canavan
UI-2021-001171
Royal Courts of Justice
Strand, London, WC2A 2LL
Marcus Pilgerstorfer KC (instructed by Government Legal Department) for the Appellant
Leonie Hirst (instructed by Turpin Miller) for the Respondent
Hearing date: 13 December 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 19 January 2024 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
This appeal is about a decision made by the Secretary of State (SSHD) to deport AA, an EU citizen who had committed serious sexual offences in this country.
The First-tier Tribunal (FtT) allowed AA's appeal against the SSHD's decision, holding that AA's removal would infringe his rights under the EU Treaties as implemented by the Immigration (European Economic Area) Regulations 2016 (the 2016 Regulations) and his right to respect for private and family life under Article 8 of the European Convention on Human Rights (the Convention). The Upper Tribunal (UT) dismissed an appeal by the SSHD, holding that the FtT had made no error of law and that its conclusions were sufficiently reasoned. The SSHD brings this second appeal with the permission of Asplin LJ.
The grounds of appeal raise two main issues: did the FtT err in law by (1) misapplying the 2016 Regulations and (2) treating the application of the 2016 Regulations as effectively decisive of AA's claim to remain in the UK on the basis of his human rights?
AA is anonymised as he has been throughout the proceedings. That is not for his own sake but only because it is a necessary measure for the protection of his daughter (V). V was, as an infant, a victim of the relevant offending and benefits from the right to lifetime anonymity provided for by the Sexual Offences (Amendment) Act 1992.
The facts
AA is a Polish national, born on 29 May 1981. In 2006 he moved to the UK. In April 2007 he met his wife K who had moved to the UK from Poland earlier that year. They were married in 2012. In January 2014, AA gained a Master's degree in Aeronautical Engineering. In July of the same year V was born. At this point AA began openly questioning his gender identity. (I use male pronouns because AA has indicated he prefers this).
On 23 February 2016, police attended AA's home with a search warrant, acting on intelligence that someone at the address had used the internet to access indecent images of children. On AA's devices the police found some 1,450 such images, including some 300 in Category A, the most serious. Some of the Category B and C images were of V. AA was arrested and charged. He pleaded guilty to three counts of making indecent images but contested charges of sexually assaulting his daughter, taking two indecent Category B images of her, and taking 17 indecent Category C images of her including a video. On 4 May 2018, in the Crown Court at Isleworth, he was convicted of all those charges.
On 18 June 2018, AA was sentenced to a total of five years' imprisonment comprising four years in respect of the sexual assault on V, concurrent terms for the other offending against V, and 12 months consecutive for the offences to which he had pleaded guilty. The sentencing judge made a wide-ranging Sexual Harm Prevention Order (SHPO) for 10 years. As a further consequence of his conviction AA was subject to the sex offender registration and notification requirements for 10 years and was liable to be placed on the barring list by the Disclosure and Barring Service.
On 2 July 2018, AA was warned by the SSHD that he could be liable to deportation pursuant to the 2016 Regulations and invited to submit representations. On 16 December 2020, the custodial portion of AA's sentence came to an end and he was released on licence. On 20 December 2020, having considered AA's representations that his deportation would be contrary to the 2016 Regulations and his Article 8 rights, the SSHD decided that he should be deported (the Decision). A supplementary decision letter of 6 April 2021 affirmed the Decision on slightly different grounds.
The legal framework
Section 32 of the UK Borders Act 2007 requires the SSHD to make a deportation order in respect of a person who is not a British Citizen and is convicted in the UK of an offence and sentenced to at least 12 months' imprisonment (a “foreign criminal”) unless the case falls within an exception under s 33 of the 2007 Act. At the material times this case would have fallen within one of the exceptions if AA's removal would breach his right to respect for private and family life under Article 8 (Exception 1, s 33(2)(a)) or his rights under the EU Treaties (Exception 3, s 33(4)).
The main focus of attention in this case has been on AA's rights under the EU Treaties.
The expulsion of EU citizens by Member States is governed by Directive 2004/38/EC, known as the Citizens' Rights Directive. Article 27 of the Directive authorises restrictions on freedom of movement on grounds of public policy, public security or public health, subject to certain preconditions. Among these are that the measure must comply with the principle of proportionality and be based exclusively on the personal conduct of the individual concerned which “must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.”
Article 28 sets out three levels or tiers of protection against expulsion. In every case the Member State must take account of “considerations such as how long the individual concerned has resided on 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” (Article 28(1)). If the individual concerned has the right of permanent residence in the host State an expulsion decision must not be taken against them “except on serious grounds of public policy or public security” (Article 28(2)). If the individual has “resided in the host Member State for the previous ten years” an expulsion decision must not be taken against them “except if the decision is based on imperative grounds of public security, as defined by Member States” (Article 28(3)).
Decisions of the CJEU have made clear that the ten-year residence provision in Article 28(3) is not to be interpreted or applied literally or mechanically. It is not just a question of arithmetic. The factors specified in Article 28(1) are relevant. Where the individual in question has been subjected to a period of imprisonment that may break integrative links previously forged with the host Member State; to decide whether that is so it is necessary to conduct an overall assessment of the situation at the time of the relevant decision: see Land Baden-Wurtemburg v Tsakouridis (Case C-145/09) [2011] 2 CMLR 11 [33], B and Vomero [2019] QB 126 [72]–[75]. In Secretary of State for the Home Department v Viscu [2019] EWCA Civ 1052 [44] Flaux LJ identified the following points as established by the European jurisprudence:
“…(i) that the degree of protection against expulsion to which a Union national resident in another member state is entitled under the Directive is dependent upon the degree of integration of that individual in the member state; (ii) that, in general, a custodial sentence is indicative of a rejection of societal values and thus of a severing of integrative links with the member state but (iii) that the extent to which there is such a severing of integrative links will depend upon an overall assessment of the individual's situation at the time of the expulsion decision.”
The 2016 Regulations transposed the provisions of the Citizens' Rights Directive into domestic law with added details. Although the 2016 Regulations have now been revoked, they continue to apply to this case because AA was protected at the time of the Decision: see regulation 2(3) and Schedule 1 of the Citizens' Rights (Restrictions of Rights of Entry and Residence) (EU Exit) Regulations 2020.
Regulation 23(6) of the 2016 Regulations authorises the removal of an EEA national who has entered the UK if the SSHD “has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 27”. Such a decision is termed a “relevant decision”.
Regulation 27 contains the following provisions about such decisions:
“(3) A relevant decision may not be taken in respect of a person with a right of permanent residence under regulation 15 except on serious grounds of public policy and 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 a right of permanent residence under regulation 15 and who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; …
…
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also 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 must...
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Upper Tribunal (Immigration and asylum chamber), 2024-02-28, [2024] UKUT 00066 (IAC) (Abdullah & Ors (EEA, deportation appeals, procedure))
...to the hearing, and before an embargoed draft was circulated to the parties, the Court of Appeal handed down SSHD v AA(Poland) [2024] EWCA Civ 18. The SSHD drew attention to that decision in the response to the draft, and the panel then gave directions for written submissions on that case t......
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Upper Tribunal (Immigration and asylum chamber), 2024-02-02, UI-2022-005759
...risk was managed whilst he was in prison: [24]. (That holding was very recently endorsed by the Court of Appeal in SSHD v AA (Poland) [2024] EWCA Civ 18, at [54]-[55], per Warby LJ, with whom Baker and Laing LJJ The FtT had erred in misunderstanding the necessary sequence of events as regar......