Upper Tribunal (Immigration and asylum chamber), 2012-08-24, [2012] UKUT 268 (IAC) (MG (EU deportation – Article 28(3) – imprisonment))
| Jurisdiction | UK Non-devolved |
| Judge | Mr D K Allen, Dr HH Storey |
| Status | Reported |
| Date | 24 August 2012 |
| Published date | 31 August 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 21 May 2012 |
| Subject Matter | EU deportation – Article 28(3) – imprisonment |
| Appeal Number | [2012] UKUT 268 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
MG (EU deportation – Article 28(3) – imprisonment) Portugal [2012] UKUT 00268(IAC)
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
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on 8 August, 7 October 2011, 21 May 2012 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE STOREY
UPPER TRIBUNAL JUDGE ALLEN
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MG
Respondent
Representation:
For the Appellant/SSHD: Mr Parkinson (8 August 2011) and Mr P Deller, (7 October 2011, 21 May 2012), Home Office Presenting Officers
For the Respondent/Claimant: Miss L Hirst, Counsel, instructed by The Aire Centre
This decision refers to the Court of Justice of the European Union the questions set out at the end of it.
ORDER FOR REFERENCE TO THE COURT OF JUSTICE OF THE EUROPEAN UNION
1. This order arises in the context of an appeal by a Union citizen/EEA national against a decision by the Secretary of State to deport her in the light of a criminal conviction for which she received a custodial sentence. Directive 2004/38/EC has introduced a new hierarchy of levels of protection against expulsion based on criteria of increasing stringency, depending, inter alia, on the extent of residence (see recital 23): (i) a Union citizen/ EEA national or their family member who has not acquired permanent residence in the UK may be deported on grounds of public policy or public security or public health (the “basic” level of protection under Article 27(1) and Article 28(1)/ regulation 21(1)) of the Immigration (European Economic Area) Regulations 2006 (hereafter “the 2006 Regulations”)); (ii) a Union citizen/EEA national or their family member with a permanent right of residence may only be deported on “serious grounds of public policy or public security” (the second-highest level of protection; Article 28(2)/regulation 21(3)); (iii) a Union citizen/ EEA national who has resided in the UK for (at least) a 10 year period previous to the deportation decision may only be deported on “imperative grounds of public security” (the highest level of protection; Article 28(3)(a)/ regulation 21(4)(a)). The questions addressed to the Court are to be found at the end of this document: see para 44.
2. Article 28 and regulation 21 respectively provide as follows:
Article 28
Protection against expulsion
1. Before taking an expulsion decision on the 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 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.
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.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:
(a) have resided in the host Member State for the previous ten years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.
Regulation 21
Decisions taken on public policy, public security and public health grounds
(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
(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.
3. The respondent’s (hereafter the claimant’s) status as a Union citizen/EEA national derives from the fact that she is a citizen of Portugal. On 28 March 1998 she married JG, another Portuguese citizen. On 12 April 1998 they travelled together to the UK. Between May 1998 and March 1999 the claimant was employed in the hotel industry. In March 1999 she gave up work to have her first child, M (born 19 June 1999). The couple had two further children, J (born 28 October 2001) and L (born 1 March 2004). Mr JG supported the claimant from March 1999 until their relationship broke down in 2006. Despite separating in December 2006, they remain married.
4. Their children have faced serious difficulties. In April 2008 the claimant’s three sons were placed in foster care following a report by hospital staff that injuries to L were non-accidental. The local authority initiated care proceedings. On 21 November 2008 a family court judge, HHJ Morgan, determined that the claimant had been responsible for causing the injuries to L. On 17 July 2009 the claimant was convicted on one count of cruelty and three counts of assault by beating to a person under 16 years (L) and was sentenced to 21 months’ imprisonment on 27 August 2009. In October 2009 the family court made a 12 month supervision order and a residence order in favour of Mr JG.
5. When the local authority first became involved the claimant had been allowed supervised contact with her children whilst in the community. In October 2009, by which time she was in prison, the family court made a contact order which provided for supervised contact between the claimant and the children during school holidays and for such further contact as the parents could agree. However, in April 2010 the local authority stopped contact visits and in August 2010 made an application for contact to be suspended. With the move of the father to a different local authority (Manchester) there were no longer any ongoing family court proceedings: the proceedings were ended by consent on or around 26 September 2011. Despite having completed her custodial sentence the claimant remained in custody under Immigration Act powers.
6. What gives rise to this appeal is that on 11 May 2010 the claimant had applied for a certificate of permanent residence in the UK. On 8 July the appellant (hereafter the Secretary of State for the Home Department or SSHD) refused that application and decided to make a deportation order under s.5 of the Immigration Act 1971 on the grounds of public policy and public security pursuant to regulation 21 of the Immigration (European Economic Area) Regulations 2006. The SSHD acknowledged that by the date of the decision to deport in 2010 the claimant had been in the UK over 10 years, but considered that the continuity of that residence had been broken by her imprisonment. Noting that the rationale for the highest level of protection was the degree of integration of Union citizens/EEA citizens and their family members into a host Member State (recital 23), the SSHD stated that: “A person does not become integrated into a host Member State whilst held in one of its prisons.” Nor in the view of the SSHD could the claimant benefit from the second-highest level of protection because she had not shown she had acquired permanent residence; and, even if she had shown that, there were serious grounds of public policy and security for deporting her. A fortiori the claimant could not benefit from the basic level of protection.
7. The claimant appealed. Her appeal was heard by the First-tier Tribunal (FtT) (Judge Monro and Mrs Greenwood). In a...
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