Upper Tribunal (Immigration and asylum chamber), 2017-01-24, DA/02456/2013
| Jurisdiction | UK Non-devolved |
| Date | 24 January 2017 |
| Published date | 26 July 2021 |
| Hearing Date | 10 November 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | DA/02456/2013 |
Appeal Number: DA/02456/2013
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: DA/02456/2013
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 10 November 2016 |
On 24 January 2017 |
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Before
UPPER TRIBUNAL JUDGE KOPIECZEK
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
danilo restivo
Respondent
Representation:
For the Appellant: Mr B Hawkin Counsel instructed by David Wyld & Co Solicitors
For the Respondent: Mr J Strachan, QC Counsel instructed by the GLD
DECISION AND REASONS
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Although the appellant in these proceedings is the Secretary of State, I refer to the parties as they were before the First-tier Tribunal (“FtT”).
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This appeal comes back before me following a hearing on 8 September 2016 before Upper Tribunal Judge Southern and me which resulted in our setting aside the decision of the FtT for error of law. The hearing before me was for the re-making of the decision.
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In order to put my decision into context, I reproduce the error of law decision in full as follows:
“ERROR OF LAW DECISION
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On 29 June 2011, before the Crown Court at Winchester, the respondent was convicted of murder, an offence committed on 12 November 2002, for which he was sentenced to life imprisonment, the term to be served being subsequently amended by the Court of Appeal from the whole life term imposed by the trial judge to a minimum term of 40 years.
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The Secretary of State for the Home Department (“SSHD”) has been granted permission to appeal against the decision of a panel of the First-tier Tribunal, by a determination promulgated following a hearing on 23 April 2014, to allow the respondent’s appeal against a decision to make a deportation order as a consequence of that conviction. Permission was granted by Haddon-Cave J following a successful “Cart challenge” to the decision of an Upper Tribunal judge who had refused to grant permission to appeal. In granting permission to bring the application for judicial review Cobb J said:
“The application raises important points of principle in relation to the correct interpretation of the relevant statutory instruments for the deportation and transfer of a prisoner within the EEA; given the particular context of this offence/offender, there is a compelling reason to achieve clarity.”
Which view was echoed by Hadden-Cave J who said in granting permission to appeal:
“In my view Cobb J was right to find that the application in the present case raised important points of principle as to the correct interpretation of the [Immigration (EEA) Regulations 2006] and the Framework Agreement leading to the deportation and transfer of prisoners within the EEA.”
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Before examining the reasons given by the First-tier Tribunal for allowing the appeal and the grounds upon which permission to appeal was sought and granted it is necessary to set out some detail of the nature of the respondent’s offending, both in the United Kingdom and in Italy, because this becomes relevant to the discussion that is to be conducted below.
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As can be seen from how the trial judge, Burnett J, expressed himself when passing sentence, this was a particularly brutal murder, disclosing behaviour by the respondent that seriously aggravated the offence of murder itself. The judge said that the evidence of the respondent’s guilt was overwhelming. The jury had heard also that he had murdered another young woman in Italy in September 1993 in a manner that bore striking resemblance to the way in which the murder of Ms Barnett had been carried out. The judge said that the respondent had gone to Ms Barnett’s flat intending to murder her and to mutilate her body:
“… You made careful preparations. You had with you a hammer, or something similar, with which you killed her by beating her repeatedly about the head. You had with you the knife with which you mutilated her after her death. You cut off her breasts and cut her throat. You also left carefully incised marks on her abdomen.
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You carefully arranged her body in a way strikingly similar to the way in which you had arranged Elisa Claps’ body in 1993. Her body was not found until last year. You cut both bras at the front. You lowered the trousers and underwear to expose the pubic hair. Most strikingly, perhaps, you cut Heather Barnett’s hair and placed some of it under her left hand, just as you had done with Elisa Claps. You also left a lock of hair of an unknown person in Heather Barnett’s right hand.
… There is no doubt that at least in part your motivation was sexual. You had a long-standing hair fetish which you indulged by cutting the hair of women on public transport and in cinemas in England and in Italy.”
Burnett J then explained how the careful planning of the respondent had included that he had sought to set up for himself an alibi and continued:
“… you knew that she had children at school, and you knew that the children would return after school on the day you had killed their mother. You knew that an 11-year old girl and a 14-year old boy would find their mother butchered on the bathroom floor. That feature of this case will haunt those who have sat through it.
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… Why you picked out Heather Barnett as a victim I do not know, but it is clear that you did so to satisfy a sadistic sexual appetite. The evidence in this case is that you are a cold, depraved, calculating killer …”
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The SSHD had concluded, in the light of this conviction, that the respondent was a person whose removal was justified on grounds of public policy or public security so that the requirements of Regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regs”) were met. It was accepted by all concerned that, in view of the time the respondent had lived in the United Kingdom, he had secured a permanent right of residence under Regulation 15 and so the relevant test was that in Regulation 21(3) that the decision may not be taken except on serious grounds of public policy or public security. As the SSHD was satisfied that this test was met, a decision to make a Deportation Order pursuant to section 5 Immigration Act 1971 was made. It is important to recognise, given the issues that arise in this appeal, that the decision under challenge is one to make a deportation order and not the actual making of such an order.
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Although the appeal before the First-tier Tribunal was against the decision to make a deportation order, it was clear from the documents before the tribunal that the SSHD’s purpose in so doing was in order to explore the possibility of securing agreement of the Italian Government to the transfer of this respondent to Italy so that he could serve in Italy the sentence imposed by the British court for the murder of Ms Barnett. The respondent had been sentenced also by an Italian court to 30 years imprisonment for the murder of Elisa Claps. Although the respondent had been convicted of that murder in his absence, he had been subject to temporary extradition arrangements in March 2013 so that he could participate in what proved to be for him an unsuccessful appeal against that conviction.
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The position as at the date of the hearing before the First-tier Tribunal was that the rejection of that challenge had not exhausted the respondent’s rights of appeal in Italy and that he intended to pursue a final further onward right of appeal against conviction. Mr Hawkin informed us that final appeal available to the respondent in Italy was finally dismissed on 7 March 2016 which was, of course, after the date of the decision of the First-tier Tribunal.
The legal framework.
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As we shall see, it becomes plain from the determination of the First-tier Tribunal that the panel misunderstood the legal framework relating to the process for the transfer of EEA nationals sentenced to imprisonment in the United Kingdom to serve their sentence in their own Member State. That framework was originally established by the Council of Europe Convention on the Transfer of Sentenced Persons of 21 March 1983. That provided for such transfers only with the consent of the person concerned. A Protocol of 18 December 1997 allowing transfers without the serving prisoner’s consent, subject to certain conditions, although ratified by the United Kingdom, was not ratified by all Member States and those States who had chosen not to ratify that Protocol were under no duty to accept such transfers. The Council of Europe resolved that the time had come to impose such a duty and this resulted in the Council Framework Decision 2008/909/JHA, the fifth recital of which included that:
“Notwithstanding the need to provide the sentenced person with adequate safeguards, his or her involvement in the proceedings should no longer be dominant by requiring in all cases his or her consent…”
This Framework Decision did not require to be ratified in order to take effect. The only Member State excused from the duty to accept, where appropriate, such transfers was Poland, because:
“Poland needs more time than the other Member States to face the practical and material consequences of transfer of Polish citizens convicted in other Member States,...
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