VP (Italy) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Lady Justice Smith,Lord Justice Laws |
| Judgment Date | 17 June 2010 |
| Neutral Citation | [2010] EWCA Civ 806 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2008/1551 |
| Date | 17 June 2010 |
[2010] EWCA Civ 806
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
Before: Lord Justice Laws
Lord Justice Carnwath
and
Lady Justice Smith
Case No: C5/2008/1551
[AIT No: IA/09429/2007]
Mr Jonathan Hall (instructed by the Treasury Solicitors) appeared on behalf of the Appellant.
Mr Cyril Hume (instructed by Messrs Doves) appeared on behalf of the Respondent.
(As Approved)
Lord Justice Carnwath:
This is an appeal from a decision of the Asylum and Immigration Tribunal. The effective decision is that of Immigration Judge Dawson given in September 2007; that was confirmed on reconsideration by SIJ Taylor in May 2008. The Tribunal allowed the appeal against the Secretary of State's decision made in June 2007 that the respondent was to be deported on public security grounds. That decision was based on his conviction of a very serious offence to which I will come, in September 2003.
The law on this subject has been considered in detail by this court in LG (Italy) [2008] EWCA Civ 190 and on remittal to the AIT in the same case at [2009] UKAIT 00024, in which I sat as President. As I understand Mr Hall, who appears for the Secretary of State today, he does not question the guidance given in those authorities as far as the present case is concerned.
The relevant regulations were set out at the end of the Tribunal's decision in LG and discussed there, so I do not need to take much time on them. We are concerned with the European Economic Area Regulations 2006. They deals with such things as rights to residence under Regulation 15: a right to residence in this country is acquired by an EEA national after a continuous period of five years residence. Regulation 21 deals with decisions taken on “public policy, public security and public health grounds”. In summary, the regulation embodies three levels of protection against deportation on such grounds.
For present purposes, it is sufficient to say that the first stage, where there has been no significant residence beforehand, is governed by reg. 21(6) which says that a decision taken on grounds of public policy or public security must also have regard to the following principles. It must comply with proportionality, it must be based on the personal conduct of the person concerned and “(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”. Further under (e) a person's previous criminal convictions do not in themselves justify the decision. So that is the first level.
In relation to someone who has acquired a right of residence as a result of five years’ continuous residence, the position is governed by 21(3). The decision may not be taken “except on serious grounds of public policy or public security”. And then the third level, with which we are concerned, is under 21(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”
The Secretary of State applied that third level in this case. There is an argument at least that that was too high a level of protection, given that the respondent was in prison before the decision was taken, but in any event by concession Mr Hall accepts that we should apply that test, and that was the test applied by the Tribunal.
It is important to note at this stage that what we are talking about here is expulsion of citizens of EU states from one state to another state. One can see, therefore, why even at the lowest category the threshold is set reasonably high and there needs to be a sufficiently serious threat affecting one of the fundamental interests of society. That no doubt reflects the view that in a case like the present, where the respondent has lived in this country very many years and there is no remaining link with his country of birth (in this case, Italy), there is no obvious reason for exporting the problem from one European country to another unless there is some very serious issue.
The background facts are that the respondent was born in Naples in 1965. He came here in 1986, married a British citizen in 1987 with whom he had a son. They divorced in 1997 but it seems that his relations with his son continued to be good, and indeed he continued to have reasonable relations with his former wife. He also had various types of work. There were no criminal or other problems at all until the offence which gave rise to the deportation order. It is clear that that was a shocking offence. It arose out of a relationship he had formed with a friend, Tina Wilson, at the end of 2002. He had moved in with her, and then in December 2002 he attacked her. These events followed him losing his job as a pizza chef in September 2002.
The judge at the trial described it thus:
“You … attacked [the victim] with a knife [while she was asleep] in a most determined and ferocious manner. You inflicted no less than 32 knife wounds, the deepest of which penetrated to 10cms … In addition you pulled her head back and twice tried to cut her throat, inflicting serious wounds to that part of her body.”
That led to his conviction for attempted murder and he was sentenced to nine years in prison with an extension period of four years’ supervision. Again, referring to the judge's remarks, he said:
“…why you reacted with such extreme violence and chose Miss Wilson as your victim, who was in no way responsible for your situation, is still not clear.”
The judge also observed that the appellant kicked the telephone out of Miss Wilson's hands as she lay injured and bleeding trying to summon help. He did not accept that the respondent could not remember what he did that night. He commented:
“That said, as your counsel has pointed out, and I accept, the probation officer assesses you as unlikely to be a risk to others, and the psychiatrist comes to broadly the same conclusion. However, if you can react with potentially lethal violence to these ordinary stresses of and strains of life against someone who had done you no harm, I cannot be sure that you would not do so again, and with that in mind I propose to pass an extension period of licence supervision.”
When the Secretary of State came to make his decision in 2007, he had before him also a more up-to-date parole assessment report dated January 2007 which noted that there had been:
“… no appreciable change in either [the respondent's] recollection of the offence or his understanding of its causes, as contained in the pre-sentence and psychiatric reports.”
It continued:
“The pre-sentence and psychiatric reports and the prison actuarial risk predictor indicate a low risk of reconviction, and so long as [Mr P] deals appropriately with his problems and avoids the psychological distress, as well as substance misuse, that he experienced prior to the offence I think he is unlikely to re-offend. However, my concern would be raised upon hearing that he had entered into another domestic relationship.”
He went on to say that Mr P had displayed maturity during the sentence and focused well on preparing for a return to life in the community.
The Secretary of State's decision letter sets out the history and describes the offence in some detail, but does little to assist on the question which is before us. At the top of the second page of the letter, the writer says that it is considered that the deportation is justified on imperative grounds of public security in line with Regulation 21(4). The letter then sets out the history over a couple of pages, noting as a result the conclusion that “you have the propensity to re-offend”; but the letter then does not avert to the test of imperative grounds but turns to the question of proportionality under Regulation 21(6). It notes that although Mr P has no links with Italy, it is considered that, as he spent his youth and formative years there and speaks Italian, he should be able to readjust.
When the matter came before Immigration Judge Dawson, the most recent guidance available in the Tribunal was a case called MG and VC [2006] UKAIT 53. The judge set out the relevant part of that. He noted that the part where reference was made to a submission by a former representative of the Secretary of State had indicated on instructions that the phrase imperative grounds of public security “was a reference to the commission or suspicion of commission of terrorist offences”. But the Tribunal in MG and VC looked at it rather...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2016-05-12, DA/00051/2015
...of the opinion that the severity of the offence committed was not necessarily one to make removal “imperative”. In VP (Italy) v SSHD [2010] EWCA Civ 806 the Court of Appeal endorsed LG (Italy) v SSHD and said that imperative grounds of public security required not simply a serious matter of......
-
Upper Tribunal (Immigration and asylum chamber), 2021-05-20, DA/00723/2018
...The First-tier Judge considered the decision of the Court of Appeal in VP (Italy) v Secretary of State for the Home Department [2010] EWCA Civ 806 and Essa v Secretary of State for the Home Department [2012] EWCA Civ 1718 and found that, if the imperative grounds test were applied, the publ......
-
Upper Tribunal (Immigration and asylum chamber), 2023-02-02, EA/14412/2021 & IA/1485/32021
...for consideration of imperative grounds but there needed to be something more, VP (Italy) v Secretary of State for the Home Department [2010] EWCA Civ 806. There was nothing more identified. Further the focus should be on the risk of The imperative grounds threshold was explicitly addressed......
-
The Queen (oao) Daha Essa v Upper Tribunal (Immigration & Asylum Chamber) and Another
...submission. Mr Drabble cited in support the observations of Carnwath LJ in VP (Italy) v Secretary of State for the Home Department [2010] EWCA Civ 806, at [7]: “It is important to note at this stage that what we are talking about here is expulsion of citizens of EU states from one state to ......