In Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245 (03 December 2015) Moore-Bick LJ, giving the leading judgment, finds that public revulsion is not generally relevant to decisions to deport under EU law.

The facts

Two cases were linked for the purposes of this judgment.

The first case, Straszewski, involved a Polish national aged 29. He had lived int he UK since the age of 11 and acquied permanent residence in 2003 (albeit retrospectively, once that right came into existence in 2006). He pleaded guilty to a charge of unlawful wounding in relation to an incident in 2010 in which he caused serious injuries to the face and neck of another man using a broken glass. While on bail he broke into a flat belonging to two young women with another man and when the women returned the men repeatedly kicked and punched the women before escaping. He pleaded guilty to two counts of robbery and was sentenced to 42 months’ imprisonment, then to 15 months consecutively for the earlier unlawful wounding offence.

The Home Office decided to deport him. His appeal against that decision succeeded in the immigration tribunal and, unsatisfied, the Home Office pursued the matter to the Court of Appeal.

The second case, Kersys, involved a Lithuanian national who came to the UK in 2004 and later acquired permanent residence. In 2013 he was convicted of three offences of identity fraud, by which he and his wife used bank cards belonging to a vulnerable elderly neighbour whom they had befriended in order to obtain sums of money totalling about £112,000 from his bank account after his death. The sentencing judge described it as ” a mean-spirited and nasty piece of offending”.

The Home Office pursued deportation against Mr Kersys but once again the immigration tribunal allowed the appeal against deportation. Again, the Home Office decided to take matters further and appealed to the Court of Appeal.

Held

The key issue in the cases was the role and importance of public revulsion against certain types of crime and how far this was relevant to a decision to deport under EU law.

A decision to deport a person with permanent residence under EU law can only be made on “serious grounds of public policy or public security“. Such a decision must also comply with these requirements, taken from EU law:

(a) the decision must comply with the principle of proportionality;

(b) the decision must be based exclusively on the personal conduct of the person concerned;

(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;

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e) a person’s previous criminal convictions do not in themselves justify the decision.

These protections against deportation in EU law are intended to safeguard principles of free movement around the EU. As Moore-Bick LJ says, it is for the Member State concerned to justify its actions in interfereing with free movement rights; the burden does not rest with the individual facing deportation [para 12].

Some older cases, such as R v Bouchereau (Case 30/77) and R v Secretary of State for the Home Department ex parte Marchon [1993] 2 C.M.L.R. 132 have been interpreted as authority for the proposition that particularly horrifying crimes might themselves justify deportation in EU law. This approach is in essence disapproved: 

[19] …I can see some force in Mr. Drabble’s submission that the decision in Marchon can no longer be regarded as representing Community law … 

[20] …The authorities to which I have referred support the general proposition that great importance is to be attached to the right of free movement which can be interfered with only in cases where the offender represents a serious threat to some aspect of public policy or public security. Save in exceptional cases, that is to be determined solely by reference to the conduct of the offender (no doubt viewed in the context of any previous offending) and the likelihood of re-offending. General considerations of deterrence and public revulsion normally have no part to play in the matter.

As Moore-Bick goes on to point out, there is a clear difference here between UK national law on deportation and EU law on deportation for EU nationals with a right of permanent residence.

The Court also briefly considered the definition of “imperative grounds of public security” and the Court of Justice of the European Union case of I v Oberbürgermeisterin der Stadt Remscheid. It isn’t entirely clear why the Court considered this case, given that no-one was attempting to argue that there were imperative grounds applicable in this case. For what it is worth, Moore-Bick LJ suggests that general guidance is unwise as everything depends on the facts of the case and that in any event even in imperative grounds cases there wil be a need to consider whether there is a risk of reoffending in future:

I do not find that case to be of great assistance in determining whether in any individual case there are “serious” grounds of public policy or public security sufficient to justify deportation. It is clear, as the court confirmed, that the expression “imperative grounds of public security” creates a considerably stricter test than merely “serious” grounds, but since the application of the test is primarily for the member state concerned, which must take into account social conditions as well as the various factors to which the Directive itself refers, the question is likely to turn to a large extent on the particular facts of the case. It would therefore be unwise, in my view, to attempt to lay down guidelines. In the end, the Secretary of State must give effect to the Regulations, which themselves must be interpreted against the background of the right of free movement and the need to ensure that derogations from it are construed strictly. In that context it is worth noting that even in a case where it is considered that removal is prima facie justified on imperative grounds of public security, the decision-maker must consider, among other things, whether the offender has a propensity to re-offend in a similar way (judgment, paragraph 30).

Moore-Bick also found the case of Onuekwere v Secretary of State for the Home Department (Case C-378-12) [2014] 1 W.L.R. 2420 to be of little assistance. That case concerned the acquisition of a permanent right of residence and established that time in prison did not count towards such acquisition. It was irrelevant when it came to considering what to do with a person who had already acquired such a right.

Ultimately, the Court of Appeal dismisses the Secretary of State’s appeals and upholds the decisons of the Upper Tribunal in both the linked cases.