Wragg and Others v Surrey County Council
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Mummery |
| Judgment Date | 18 March 2008 |
| Neutral Citation | [2008] EWCA Civ 19 |
| Date | 18 March 2008 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2007/1408 |
[2008] EWCA Civ 19
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
IMMIGRATION JUDGE PAGE AND MR P RODGERS JP
Lord Justice Mummery
Lady Justice Arden and
Lord Justice Carnwath
Case No: C5/2007/1408
Cecilia Hulse (instructed by Messrs. Duncan Moghal) for the Appellant
Tim Eicke (instructed by Treasury Solicitors) for the Respondent
Hearing date: 7th February 2008
Carnwath LJ:
Introduction
This is an appeal against the decision of the Asylum and Immigration Tribunal (the “AIT”) dated 19 January 2007. The AIT, on a reconsideration, dismissed the Appellant's appeal against the decision of the Secretary of State that he should be deported on grounds of public policy, public security or public health.
The Secretary of State's decision was made under the Immigration (European Economic Area) Regulations 2000 (made pursuant to EU Directive 64/221) From 30 th April 2006 they were superseded by the Immigration (European Economic Area) Regulations 2006 (the “2006 Regulations”), under Directive 2004/38. It is common ground that, by virtue of transitional provisions (sched 4 para 5), the appeal was rightly considered by the AIT under the 2006 Regulations.
There are two principal issues:
) (On the appeal) whether, on the basis that, as found by the AIT, LG satisfied the 10-year residence criterion under the 2006 Regulations, the AIT had been entitled in law to hold that there were “imperative grounds of public security” for removing him;
) (Under the respondent's notice) whether the AIT erred in law in holding that LG satisfied the 10-year residence criterion, in view of the fact that for the preceding 7 years he had been in prison.
Facts
LG was born on 18 October 1969 and is an Italian national. He has lived in the United Kingdom since 1985. On 10 November 2005, the Secretary of State made a Deportation Order against LG under section 3(5)(a) of the Immigration Act 1971 and regulation 23 of the 2000 Regulations on the grounds that his presence in the United Kingdom posed a threat to the requirements of public policy, and his deportation would be conducive to the public good.
The decision followed LG's five criminal convictions between 1996 and 2001. The most recent in 9 October 2001 was for robbery and causing grievous bodily harm with intent. The offence was described by the judge as “a brutal, senseless, cowardly attack upon an elderly gentleman”; he added:
“I think you are a thoroughly dangerous man… I don't think for offences of robbery of this type it gets much worse”
The court imposed two separate but concurrent sentences of 12 years imprisonment. (They were later reduced on appeal to 9 years, for technical reasons). He had been arrested in January 2000, and has been in prison ever since.
An appeal against the Secretary of State's decision was dismissed by the AIT on 20 th December 2005 (still under the 2000 Regulations), but reconsideration was ordered, initially on procedural grounds only. However, by the time of the reconsideration hearing in November 2006, the 2006 Regulations had come into force, and there had been a reported decision of the AIT under them: MG & VC (EEA Regulations 2006 “Conducive” Deportation) Ireland [2006] UKAIT 00053. It was argued for LG that, under the 2006 Regulations, as an EEA national he had obtained a permanent right of residence, based on 5 years residence in the UK. In adjourning the matter for a second stage hearing, SIJ Chalkley indicated that this issue should be looked at by the Secretary of State as a matter of urgency “in order that public funds should not be wasted” (see decision para 11.9–11).
The second-stage hearing took place before IJ Page and Mr P Rodgers in January 200Before them the argument had shifted. It was now argued for LG that he had had ten years' continuous residence in the United Kingdom, and that accordingly under the 2006 Regulations there needed to be “imperative grounds of public security” to justify the deportation order (para 28). It does not appear to have been argued on behalf of the Secretary of State at this stage that his period in prison did not qualify as “residence” for this purpose. The debate turned principally on whether he had been absent for more than six months in 1996 (para 51–2). On this issue of fact, the tribunal found in his favour, accepting that “the balance of the evidence” demonstrated that LG had had “ten years' continuous residence for the purposes of the appeal” (para 56–8).
However, they agreed with the Secretary of State, that, even applying that “imperative grounds” criterion, the order was justified. They rejected the appellant's argument, based on the decision of the AIT in MG & VC, that the expression “imperative grounds of public security” implied a reference to “the commission or suspicion of terrorist offences” (para 63). Unless compelled by clear authority, they were —
“… unable to accept… that this ground cannot include the history of serious criminal offending that this appellant has committed and any risk of repetition…” (para 65)
On that basis, they considered, in agreement with the sentencing judge, that LG was “a very dangerous man”, and that he “continues to pose a very serious public risk indeed”. They took account not only of the seriousness of his offences, but also of his apparent unwillingness to accept any real responsibility for the injuries to his victim. They held also that the removal was proportionate for the purposes of Article 8 (para 62–68). Accordingly the appeal was again dismissed.
On 26 April 2007 SIJ Spencer granted permission to appeal to the Court of Appeal stating:
“The argument that the tribunal made a material error of law in its interpretation of the requirement of “imperative grounds of public security” in relation to deportation of an EEA national who had resided in the United Kingdom for a continuous period of ten years contained in regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006 has a real prospect/chance of success and a ruling by the Court of Appeal on the point would provide helpful guidance for the tribunal in future cases.”
In response to the appeal the Secretary of State offered to consent to an order remitting the case to the AIT. According to Mr Eicke's skeleton argument, the Secretary of State considered that the tribunal may have made “a fundamental error” by directing itself “by reference to purely domestic law rather than by reference to the legislation and guidance relevant to EC free movement law”. However, that offer was not acceptable to the appellant, who (perhaps understandably) wished the court first to determine the substantive point on which guidance had been sought by the SIJ when granting leave. Before us, the Secretary of State sought and obtained permission out of time to file a respondent's notice, raising the second principal issue identified above.
As to LG's current position, we were told that he was detained under immigration powers when he would otherwise have been released under licence. He was subsequently granted bail under his licence conditions, which included living in a bail hostel. It seems, however, that no bail hostel accommodation was made available for him and that in consequence his bail was rescinded on the application of the Home Office. He therefore remains in custody. The circumstances of that detention are not however before us.
The legislation
The Secretary of State's statutory power to deport is derived from section 3(5)(a) of the Immigration Act 1971, which provides:
“A person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.”
Nothing turns on the 1971 Act as such, since the criteria for deportation of EU citizens have since become subject to a detailed code under European legislation. The 2006 Regulations which now apply to this case were designed to transpose the relevant provisions of Directive 2005/38 into English law. As I understand it, there is no dispute as to their conformity with the Directive. The Directive, including its Preamble, remain relevant as aids to interpretation.
The parts material to this case are those dealing with the acquisition of a right to permanent residence (reg 15), with removal (reg 19), and with “relevant decisions” taken on “public policy” or “public security” grounds (reg 21):
15. (1) The following persons shall acquire the right to reside in the United Kingdom permanently:
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years.
…
19…
(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if
(a) he does not have or ceases to have a right to reside under these Regulations; or
(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
…
(1) In this regulation a “relevant decision” means an EEA decision1 taken on the grounds of public policy, public security or public health.
…
(3) A relevant decision may not be taken in respect of a...
To continue reading
Request your trial
-
Hertfordshire County Council v Bryn Colin Davies
...be applied narrowly (p 699). He noted the provisions of paragraph 2 (4) of Schedule 1 to the 1985 Act in that context. 46 In Wragg v Surrey County Council [2008] EWCA Civ 19; [2008] HLR 30 it was 'a condition' of the claimants' contracts of employment that they would occupy 'on a permanent......
-
Newcastle City Council v Rogan
...renewed application, Mr Durance has produced a bundle of authorities and he made particular reference to two cases, the case of Wragg v Surrey County Council [2008] HLR 30, and Greenfield v Berkshire County Council [1996] 28 HLR 691. In the case of Wragg, in particular, the judgment of Rich......
-
Decision Nº LRX 192 2011. Upper Tribunal (Lands Chamber), 16-05-2013
...for the LVT to consider whether such interference was reasonable. In Syed Mahammed Azhar Shah and Others v Colvia Management Co Limited [2008] EWCA Civ 19, the Court of Appeal was considering the attempt to regulate the use of congested car parking areas forming part of the Barking Industri......