It is one thing when the state seeks to withdraw a permission or privilege. It is a very different matter when it seeks to interfere with an individual’s rights. Privileges are precarious. In the absence of good reason to the contrary, rights should be secure.

This emphatic opening line comes from the recent decision of the Inner House of the Court of Session in Goralczyk v Secretary of State for the Home Department [2018] CSIH 60. One of the coolest openers you’ll read this year (perhaps I’m a tad biased but that’s only because I was the appellant’s agent!).

In this case, Mr Goralczyk had been served with a deportation order following a drink-driving conviction and two drugs offences (supplying cannabis) despite having a right of permanent residence. The Inner House had no hesitation in finding that there were no “serious grounds of public policy” which entitled the Home Secretary to deport him.

Deportation order made against “low risk” offender

At the time he was served with a deportation order, Mr Gorlaczyk had been residing in the UK for nine years, had a relationship with another EU citizen and had two children born in the UK. Probably the most important evidence before the tribunal was a criminal justice social work report which described Mr Goralczyk at “low risk” of re-offending.

Whilst accepting the impact of the deportation on Mr Goraclzyk’s family would be “hugely significant”, the First-tier Tribunal judge concluded that his offending was “of the gravest significance”. The tribunal made no mention whatsoever of the risk assessment. The Upper Tribunal said it was “plain” that the correct test was recognised by the judge and dismissed the appeal.

The submissions on behalf of Mr Goralczyk before the Inner House were that the tribunal had:

• manifestly failed to apply to the correct test which was that “serious grounds of public policy” needed to be made out;
• erred in giving any weight to the only risk assessment before it which described Mr Goralczyk as low risk;
• plainly mischaracterised the offending as being “of the gravest significance”.

No “serious ground of public policy” identified by tribunal

As I have mentioned previously on this blog, one of the key differences between EEA deportation cases and non-EEA deportation cases is that in EEA cases, the crux of the issue is considering whether there is likely to be a risk of re-offending.

The relevant law in this case was Regulation 21(3) of the EEA Regulations 2006. As with Regulation 27(3) of the new regulations, an EEA national with a right of permanent residence can only be deported where there exists “serious grounds of public policy or public security”. So the key difference is the word “serious”, which must mean something different from “grounds of public policy”.

The Inner House found that this required the decision-maker to

1. identify the relevant grounds and
2. evaluate their seriousness.

But the court found a more fundamental issue. The tribunal had weighed Mr Goralczyk’s offending on one hand and the impact on his family on the other hand, but that was the wrong test. The court was at pains to emphasise (like in the opening paragraph), that a decision to deport is:

a decision by the state to abrogate the appellant’s EU treaty rights in relation to free movement of workers on the grounds of public policy. That is only lawful if the state demonstrates that the requirements of the … Regulations are met. The starting point is the requirement of regulation 21(3) that a relevant decision may not be taken except on serious grounds of public policy, allied with the principle set out in regulation 21(5)(a) that the decision must comply with the principle of proportionality. Thus, a decision to remove must have not just a policy objective but a serious policy objective. Moreover, it must comply with the principle of proportionality.

…This gives rise to a difficulty with the FTT’s decision; nowhere does the FTTJ expressly identify what is the objective of the decision to deport the appellant. The reader of the FTTJ’s decision is left to guess. What then might be the serious ground of public policy which is put in play by reason of an EEA national having accumulated these three criminal convictions during a period of nearly ten years’ residence in the United Kingdom?

Having already ripped apart the tribunal’s decision, the Inner House didn’t stop there. It identified “further difficulties” with the decision-making process in that the judge failed to adequately reason why Mr Goralczyk’s presence posed a risk to the fundamental interests of society when the only evidence before him (the social work report) described him as being at low risk of re-offending.

The Inner House found a “complete failure” of the tribunal to apply the EEA Regulations and concluded that there was “very clearly an error of law”.

Decision highlights practical strength of EU law protection against deportation

This decision is a real golden nugget. Not only does it emphasise the duty of the First-tier Tribunal to clearly address each and every requirement of the Regulations, it also highlighted the significant weight to be given to an appellant’s EU citizenship given that the free movement of persons is regarded as a fundamental aspect of EU law.

All too often, the Home Officer and tribunal judges have a tendency to deal with all deportation cases using the same broad-brush approach. That, as the Inner House highlighted, is a material error of law. An EEA national’s status has always been inherently more secure given that they have an entitlement by law to exercise their treaty rights and consequently any interference with that right requires to be considered rigorously.

The case also underlines another systematic problem: cases such as this one where the facts are uncontroversial and where the law is relatively clear, are taking far too long to be decided. At the hearing, Lord Malcolm asked us why this case had been ongoing for nearly three years. There were two answers; the tribunal takes forever to list hearings and the Scottish Legal Aid Board took ages to decide the legal aid application for leave to appeal from the Upper Tribunal. All of this caused massive delay whilst Mr Goralczyk remained in limbo, not knowing what was going to happen to him. After all that, we were out of court in just over an hour with an ex tempore decision.