Upper Tribunal (Immigration and asylum chamber), 2016-01-13, [2016] UKUT 106 (IAC) (Abdul (section 55 – Article 24(3) Charter))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice McCloskey, President |
| Status | Reported |
| Date | 13 January 2016 |
| Published date | 25 February 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 09 December 2015 |
| Subject Matter | section 55 – Article 24(3) Charter |
| Appeal Number | [2016] UKUT 106 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Abdul (section 55 – Article 24(3) Charter) [2016] UKUT 00106 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House, London On 9 December 2015 |
Decision promulgated |
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Before
The Hon. Mr Justice McCloskey, President
Between
ADEBAYO ABDUL
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
Appellant: Mr S Knafler QC and Mr A Grigg (of Counsel), instructed by Wilson Solicitors LLP
Respondent: Mr D Blundell, of Counsel, instructed by the Government Legal Department
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There is no hierarchy of weight or importance in the various considerations recited in regulation 21(6) of the EEA Regulations. The weight to be attributed to each factor will vary according to the fact sensitive context of the individual case.
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Where it is contended that the decision maker and/or the First-tier Tribunal (FtT) has acted in contravention of section 55 of the Borders, Citizenship and Immigration Act 2009, the Upper Tribunal will scrutinise the degree of engagement with all material evidence and, in particular, will search for clear findings in the decision of the FtT of what the best interests of any affected child are.
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Article 24(3) of the EU Charter of Fundamental Rights creates a free standing right (although not absolute).
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Where this right is engaged, a failure by the decision maker and/or the FtT to acknowledge it and to decide accordingly may constitute a material error of law.
DECISION AND REASONS
Introduction
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This appeal has its origins in a decision made on behalf of the Secretary of State for the Home Department (the “Secretary of State”), dated 12 December 2013, to make an order deporting the Appellant from the United Kingdom. By its decision promulgated on 03 March 2015, the First-tier Tribunal (the “FtT”) dismissed the ensuing appeal. Permission to appeal to this Tribunal was granted by Upper Tribunal Judge Rintoul in the following terms:
“It is arguable that the [FtT] erred in failing, in the context of an appeal under the EEA Regulations, to have regard to the provisions of the European Charter of Fundamental Rights …..
Permission is granted on all grounds.”
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The effect of the grant of permission to appeal is that there are two issues to be determined:
(i) Did the FtT err in law by failing to conduct (adopting the Appellant’s formulation) a composite proportionality exercise and/or, in particular, by failing to properly recognise and give substantial weight to the Appellant’s long residence in the United Kingdom and integration in United Kingdom society?
(ii) Did the FtT err in law by failing to consider Article 24(3) of the Charter of Fundamental Rights of the European Union (hereinafter “the Charter”)?
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I have been assisted by a detailed chronology of material dates and events prepared by the Appellant’s representatives. This is attached as Appendix 1. In very brief compass, the Appellant, a national of Nigeria, is now aged 41 years and has been continuously resident here since aged 16. He has two daughters, both British citizens, who are aged 13 and 11 years respectively. He has been convicted of a series of fraud offences, beginning in 2002 and subsequently in 2003, 2006 and 2012. In 2006, the convicting court made a deportation recommendation. Following a series of subsequent challenges, the Appellant avoided deportation and, in February 2011, he acquired a residence card qua family member of an EEA national. His offending has attracted custodial sentences, most recently (in January 2012) a sentence of 4 ½ years imprisonment. This was the impetus for the Secretary of State’s impugned decision.
Statutory Framework
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The Secretary of State’s decision was made under the framework of the Immigration (European Economic Area) Regulations 2006 (the “EEA Regulations”). Within Part 4 of this measure there are provisions relating to the exclusion and removal of persons from the United Kingdom. Regulation 19(3) provides:
“Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if–
(a) that person does not have or ceases to have a right to reside under these Regulations;
(b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21; or
(c) the Secretary of State has decided that the person's removal is justified on grounds of abuse of rights in accordance with regulation 21B(2).”
The discrete topic of decisions taken on public policy, public security and public health grounds is addressed in regulation 21, which provides, in material part:
“(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.”
It is common case that regulation 21(3) applies to this Appellant. Thus it was incumbent on the Secretary of State to address the standard of “serious grounds of public policy or public security” and decide accordingly.
First Ground of Appeal
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The argument developed by Mr Knafler QC on behalf of the Appellant had several inter-related strands. It was submitted that the FtT failed to properly analyse all material factors and, thus, failed to adopt a composite approach in the proportionality exercise; did not properly recognise the strength of the Appellant’s long residence and integration in the United Kingdom and, therefore, failed to accord these factors the requisite weight; conducted an inadequate best interests of children assessment; and, in breach of the principle of equal treatment (or consistency of outcomes), reached an outcome which does not bear comparison with other cases.
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In the now well developed jurisprudence relating to deportation decisions under the EEA Regulations, certain general principles can be readily identified. In Land Baden – Wurttenberg v Tsakouridis [2011] 2 CMLR 11, the issue of integration featured with some prominence in the decision of the Court of Justice of the European Union (CJEU), which stated:
“[24] According to recital 23 in the preamble to Directive 2004/38, the expulsion of Union citizens and their family members on grounds of public policy or public security can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely...
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