The Court of Appeal has rejected the Home Office’s appeal in a case involving denial of entry to the UK to the family member of an EEA national on “public policy grounds”, where the person had a low risk of re-offending. The case is Secretary of State for the Home Department v Okafor [2024] EWCA Civ 23.

Background

Mr Okafor married a Swedish national in October 2019. She held indefinite leave to remain. On 30 July 2020 Mr Okafor was granted entry clearance under the EU Settlement Scheme and he arrived in the UK with an EUSS family permit in September 2020.

He was refused admission on public policy grounds and his family permit was revoked under regulations 23 and 24 of the Immigration (EEA) Regulations 2016. His leave to enter was also cancelled under paragraph 321B of the immigration rules.

The public policy decision was based on a 1994 conviction in the United States of the offence of conspiracy to possess with intent to distribute heroin. Mr Okafor had served almost 26 years in prison before being released in January 2019 and removed from the US. This conviction had not been disclosed in the EUSS family permit application nor in two earlier visit visa applications, Mr Okafor having answered “no” to the question of any convictions in the UK or any other country.

The appeal

Mr Okafor appealed the decisions and this was allowed by the First-tier Tribunal on the basis that the Home Secretary had not established that his conduct represented a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” (required for exclusion on public policy grounds, under regulation 27 of the EEA Regulations).

The Home Secretary appealed to the Upper Tribunal which set aside the decision on the basis that the First-tier Tribunal had failed to consider the “Bouchereau exception”. The Upper Tribunal agreed and set aside the First-tier Tribunal’s decision, and the case was retained to be re-decided in the Upper Tribunal at a further hearing.

The Upper Tribunal expressly preserved the finding of the First-tier Tribunal that it was considered “not likely” that Mr Okafor would re-offend in future. This finding was based on evidence of good behaviour and the obtaining of qualifications and employment, all while in prison. This included a Bachelor of Science in Business Law and becoming a Quality Assurance Clerk.

The “Bouchereau exception” refers to a decision by the Court of Justice of the European Communities (CJEU), Regina v Pierre Bouchereau [1977] EUECJ R-30/77. The exception was described by the Upper Tribunal as where:

even in the absence of a propensity to commit further offences, where the individual’s conduct can be said to produce a “deep public revulsion” then the requirement of EU law that the individual should represent a “genuine, present and sufficiently serious threat” to a fundamental interest of society may still be met.

Essentially, this means that where the offence is so bad that even where there is little future risk, the person can still be excluded on public policy grounds under regulation 27 of the EEA Regulations.

The Home Secretary had seemingly not considered anything beyond the nature of the charge and the length of sentence. Whereas Mr Okafor was able to provide evidence from credible sources as to the “peripheral” nature of his involvement and the disproportionate length of his sentence relative to others who were involved. This evidence was accepted by the judge and it was concluded that the Home Secretary had not discharged the burden of proof in this case to establish that the Bouchereau exception applied. The Home Secretary’s appeal was dismissed.

The Court of Appeal

There was a single ground of appeal, which was that the Upper Tribunal had erred in failing to consider the cumulative effect of Mr Okafor’s behaviour. The Home Secretary argued that the recent use of deception in the immigration applications, if taken into consideration, could bring Mr Okafor within the scope of the Bouchereau exception.

This was robustly rejected by the Court of Appeal, which concluded that “the Judge took into account the cumulative effect of all relevant matters and concluded that the deceptive conduct did not tip the balance. His judgment does not disclose any error of law that would justify or permit us to interfere”.

Conclusion

It is clear from the decision that the evidence provided in support of Mr Okafor’s appeal made a real difference to the outcome for him. This is a good demonstration of where, even with difficult facts, a well prepared case can succeed.