The Court of Appeal answers this question in the negative in Secretary of State for the Home Department v George [2024] EWCA Civ 1192. The case also contains some procedurama* about points which can be raised on appeal not previously taken and considers the applicability of points said to be ‘Robinson obvious’ outside of the context of refugee law.

A murder

William George arrived in the UK as an eight year old boy from Belgium in 2004. In 2017, he was involved in a ‘horrifying’ gang murder, and sentenced to 12 years’ imprisonment for manslaughter.

In its efforts to deport him, the Home Secretary accepted that, as an EU national who had lived in the UK for over 10 years, deportation could only be justified on ‘imperative grounds of public security’.

Mr George won his appeals against deportation in the First-tier and Upper Tribunals, arguing that his deportation could not be justified on these grounds.

The deportation framework for (some) EU nationals

Before Brexit there were parallel deportation frameworks in existence: one for European citizens, and one for non-European citizens.

The regime in place for European citizens offered – and still offers to some – significant safeguards against deportation, especially for those in the UK for significant periods.

This is because, broadly speaking, the assessment made under pre-Brexit European deportation law is mainly about the risk that a person poses, not necessarily about the heinousness of their crime.

The Bouchereau exception …

Although that European law regime is primarily focussed on risk, the case of R v Bouchereau (30/77) [1978] QB 732 found that ‘the requirements of public policy’ might justify deportation involving a serious criminal offence, even where there was no threat of future misconduct.

This might be, for example, where the offending conduct was such as to give rise to ‘deep public revulsion’, although this would have to  be ‘very extreme’: Robinson (Jamaica) v Secretary of State for the Home Department [2018] EWCA Civ 85 (see paras 68-80).  

The Home Secretary argued the nature of the crime committed by Mr George was such that, although he was accepted not to pose a ‘genuine, present and sufficiently serious threat’ (para 84), deportation could still be justified on the imperative grounds basis.

… ‘expressly abandoned’

The problem was, lawyers for the Home Office had not argued this point through the First-tier and Upper Tribunal hearings (it was raised in the permission application on the way to the Upper Tribunal).

Not only that, they had ‘expressly abandoned’ it during the Upper Tribunal hearing (para 79), and decided not to make this argument.

It was argued, however, when applying for permission to the Court of Appeal that the Bouchereau point was Robinson ‘obvious’ such that it should be considered in any event.

The Home Secretary further argued that that R v Secretary of State for the Home Department ex p Robinson [1997] EWCA Civ 3090 was authority for the principle that there was a power to consider any other point arising from a decision if the interests of justice required it.

Permission granted

Perhaps because of who granted permission (Singh LJ), the Court of Appeal reluctantly agreed to consider the point on an exceptional basis, though with a shot across the bows that it should not be taken as a green light for similar procedural failings in future (para 73).

In doing so, the court helpfully confirmed that the decision in Robinson was limited to points of refugee law which favour a person who claims to be a refugee, and should not generally be extended in favour of the Secretary of State (para 75).

The Court of Appeal also confirmed that it does have a general discretion to consider points which were not argued below which involve important points of law (para 76).

‘Not tightly pleaded’

After all of that, in terms of the substance of the point itself, the court described this as having ‘no merit’ (para 87).

This was because, at the time of the Bouchereau case, there was no test of ‘imperative grounds of public security’ in the applicable EU Directive then in force. As explained by Lady Justice Elisabeth Laing giving lead judgment:

The short and decisive point for this appeal is that considerations of public policy do not feature in that new test, which only applies to EEA nationals with the strongest protection against removal. That new test sets a very high threshold, by reference only to ‘imperative grounds of public security’. The reasoning in Bouchereau, on which the Secretary of State now relies, is irrelevant to the new test. Robinson No 2 does not help the Secretary of State. It decides that Bouchereau is still good law when the appellant has a lower level of protection from removal (see the facts described in paragraphs 7-14 of the judgment of Singh LJ, and paragraph 66). The reasoning in Robinson No 2 does not apply if appellant has the highest level of protection conferred by the Regulations. This appeal is based on a misconception about the law which applies in a case like this.

Conclusion

The outcome? Where a person is accepted as having the highest ‘imperative grounds’ level of protection against deportation, the Home Office will not be entitled to rely solely on the barbarity of a person’s conduct to justify deportation, and must still show that they represent a risk in the future.

*where a court gets excited about procedure