Upper Tribunal (Immigration and asylum chamber), 2024-07-02, UI-2023-003676

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-003676

First-tier Tribunal No: DA/00010/2022
THE IMMIGRATION ACTS
Decision & Reasons Issued:
On 2nd of July 2024
Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE WOODCRAFT

Between
DZHUNEYT TAMER SHEFKET
(NO ANONYMITY ORDER MADE)
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the appellant: In person
For the respondent: Ms A Ahmed, Senior Presenting Officer
Heard at Field House on 26 June 2024

DECISION AND REASONS
Introduction
1. Mr Shefket (“the appellant”) is a Bulgarian national, born in October 1993. This is the re-making of the decision in his appeal against the respondent’s decision to make a deportation order under the Immigration (European Economic Area) Regulations 2016 ("the 2016 Regulations"), dated 5 January 2022. That decision was based on the undisputed fact that the appellant had been convicted in January 2012 of murdering his mother and younger brother in Bulgaria in 2011, offences for which he had been sentenced to 7 years and 4 months’ imprisonment.
2. The appellant’s appeal to the First-tier Tribunal had been allowed by First-tier Tribunal Judge Moffat by a decision issued on 21 July 2023. The respondent challenged that decision. On appeal to the Upper Tribunal, Deputy Upper Tribunal Judge Saini found that Judge Moffat had materially erred in law and that her decision should be set aside, with certain findings preserved. The case was then set down for a resumed hearing on 8 April 2024. However, due to national train strikes, the appellant was unable to attend and that hearing was adjourned, with directions (the adjournment decision and accompanying directions notice is annexed to this re-making decision).
3. The case was re-listed before us on 26 June 2024.
The decision of the First-tier Tribunal
4. Judge Moffatt found that the appellant was only entitled to the lowest level of protection under the 2016 Regulations. Having considered a number of factors, she concluded that the respondent had failed to demonstrate that the appellant presented a genuine, present, and sufficiently serious threat to one or more of the fundamental interests of society, with reference to regulation 27(5) of the 2016 Regulations.
The error of law decision
5. Judge Saini, whose error of law decision was issued on 7 February 2024, concluded that although Judge Moffatt had been entitled to make the findings she did, there had been a failure on her part to consider whether the appellant’s offences were so serious as to demonstrate, on that basis alone, the existence of a genuine, present, and sufficiently serious threat, with reference to the so-called Bouchereau exception.
6. Judge Saini decided that the findings made by Judge Moffatt, insofar as they went, should be preserved. Although he did not expressly list those findings, it is clear enough that they were to be found in [64]-[96] of her decision.
7. Judge Saini’s error of law decision is annexed to this re-making decision. It is important that the two are read together.
The legislative framework
8. We have concluded that it is unnecessary to set out large parts of the 2016 Regulations. The core provisions are contained within regulation 27, which can be summarised here:
27(1) the decision to deport must, in this case, have been taken on the grounds of public policy and/or public security.
27(5)(a) if grounds of public policy and public security are demonstrated, the decision must nonetheless comply with the principle of proportionality;
27(5)(b) the decision must be based exclusively on the personal conduct of the appellant;
27(5)(c) the personal conduct of the appellant must represent a “genuine, present and sufficiently serious threat” affecting one of the fundamental interests of society;
27(5)(d) matters isolated from the particular facts of the case and/or generalised considerations do not justify a decision to deport;
27(5)(e) a person’s criminal convictions do not in themselves justify the decision;
27(6) a wide variety of factors must be taken into account, including age, health, length of residence, and social and cultural integration;
27(8) public policy and public security requirements involve consideration of the fundamental interests of society, including in particular the considerations set out in Schedule 1 to the Regulations.
The Bouchereau exception
9. This particular part of the law relating to the deportation of EEA nationals has already been explained in Judge Saini’s error of law decision and the adjournment and directions notice of Upper Tribunal Judge Norton-Taylor referred to earlier.
10. For ease of reference, we reiterate the following essential points.
11. First, the Bouchereau exception originates from a judgment of the Court of Justice of the European Union: (R v Pierre Bouchereau [1977] EUECJ R-30/77). It can be described in the following way:
Normally, in cases under the Regulations the risk of harm to society that a person might represent cannot be based only on the fact that they were convicted in the past (see regulation 27(5)(e)). However, where the conviction was for a very serious offence, that conviction may be enough by itself to show that the person is a risk now.
12. Second, the exception to the general rule will only exist in rare cases. The past offending must be very serious. There is no definitive list of what type of offence might engage the exception, although the domestic cases have referred to “the most heinous of crimes”, those with “very extreme” facts or are “repugnant to the public”, and “grave offences of sexual abuse or violence against young children”: an overview of the case-law was provided by the Court of Appeal in SSHD v Robinson [2018] EWCA Civ 85.
13. Third, the courts in the United Kingdom have found that the exception does apply in this country and that it does apply to cases involving the 2016 Regulations.
14. Fourth, it is important to appreciate that the exception involves looking back to the offending; it is not concerned with the fact that an individual might not have committed any further offences since, or with fact that they might have subsequently established a law-abiding life in their home country or another.
15. Fifth, it is for the respondent to demonstrate that the exception applies in any case.
Procedural issue: the respondent’s attempt to revisit the error of law decision
16. In her skeleton argument, which was provided very late in the day, Ms Ahmed contended that Judge Saini was wrong to have concluded that Judge Moffatt had been entitled to make the findings she did, as far as they went and that some of the findings should not have been preserved: [12]-[18] of the skeleton argument.
17. Having considered those written submissions and heard what Ms Ahmed had to say at the outset of the resumed hearing, we rejected her application. First, except in very unusual circumstances, the error of law decision will not be revisited after it has been issued. A party unhappy with that decision can attempt to appeal to the Court of Appeal. Second, in any event the points made are simply disagreements with the reason decision of Judge Saini who had clearly directed himself correctly to the necessary judicial restraint before interfering with findings of the First-tier Tribunal and was entitled to conclude as he did. Third, the application was made far too late in the day. Issues relating to preserved findings could and should have been addressed at the error of law hearing, or at the latest, in the respondent’s response of 22 May 2024 to the directions issued on 12 April 2024. Fourth, the preserved findings do not create any artificiality or incompatibility with the core issues with which we are concerned. They do not preclude the respondent from making his case on the Bouchereau exception and a proportionality exercise under the 2016 Regulations or in respect of Article 8 ECHR (“Article 8”)
Procedural matters: the appellant as a litigant in person
18. The appellant has been unrepresented throughout the appellate process. We have taken every opportunity to ensure that he understands the proceedings and was able to participate to the best of his ability, notwithstanding the absence of legal representation.
19. We are satisfied that the appellant has not been materially prejudiced by the lack of legal representation and we are satisfied that he has fully understood the nature of the case made against him by the respondent and the issues with which we are concerned when making a decision on his appeal.
20. We have taken account of the following considerations. There has been no suggestion in the past that the appellant was prejudiced by the lack of legal representation, or that there had been any unfairness in this regard. The appellant is clearly an intelligent and articulate individual. His English is very good: this much was clear from our interactions with him, together with the fact that he is employed in a role which requires good communication skills. He has received all relevant materials pertaining to his appeal in the Upper Tribunal and we are satisfied that he has been able to read and understand their content.
21. We are satisfied that the appellant understood the particular nature of the Bouchereau exception.
The issues
22. In light of the above, we set out the issues with which we are concerned in this re-making decision. They essentially reflect what was set out in the adjournment decision and directions notice issued on 12 April 2024.
Issue 1: can the respondent demonstrate that the Bouchereau exception applies in this case?
Issue 2: if the respondent cannot show that the Bouchereau exception applies, then the appellant will succeed in his appeal because of the preserved findings;
Issue 3: if the respondent can show that the Bouchereau exception applies, we will then have to go on and assess whether the decision to deport the appellant to Bulgaria is proportionate under the...