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Difference between domestic and EU law on deportation


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The luggage carousel of the tribunal’s reporting committee has spewed forth a fresh batch of cases. Two of them concern deportation, one under domestic primary legislation and the other under European Union law. The facts are very different but the cases illustrate well the stark differences between domestic and EU law on deportation.

McLarty (Deportation – proportionality balance) [2014] UKUT 315 (IAC)

This is a the domestic case. The First-tier Tribunal allowed an appeal against deportation but seems to have given rather thin reasons for doing so and not explicitly to have given proper weight to the public interest in deportation, which has particular force given it is expressed in primary legislation. The case is a useful reminder to judges but hardly breaks new ground. The official headnote reads:

(1) There can be little doubt that, in enacting the UK Borders Act 2007, Parliament views the object of deporting those with a criminal record as a very strong policy, which is constant in all cases (SS (Nigeria) v SSHD [2013] EWCA Civ 550). The weight to be attached to that object will, however, include a variable component, which reflects the criminality in issue. Nevertheless, Parliament has tilted the scales strongly in favour of deportation and for them to return to the level and then swing in favour of a criminal opposing deportation there must be compelling reasons, which must be exceptional.
(2) What amounts to compelling reasons or exceptional circumstances is very much fact dependent but must necessarily be seen in the context of the articulated will of Parliament in favour of deportation.
(3) Where the facts surrounding an individual who has committed a crime are said to be “exceptional” or “compelling”, these are factors to be placed in the weighing scale, in order to be weighed against the public interest.
(4) In some other instances, the phrase “exceptional” or “compelling” has been used to describe the end result: namely, that the position of the individual is “exceptional” or “compelling” because, having weighed the unusual facts against the (powerful) public interest, the former outweighs the latter. In this sense “exceptional” or “compelling” is the end result of the proportionality weighing process.

Criminal offending is very much justification for deportation in UK domestic law and it is an error of law to fail to give proper weight to the view of Parliament on this question.

Slack lining Easier than judging the proportionality balance. Inline by Dan, on Flickr

Vassallo (Qualifying residence; pre-UK accession) [2014] UKUT 313 (IAC)

This is the more interesting case of the two, in which the tribunal finds that the Immigration (European Economic Area) Regulations 2006 do not accurately transpose the requirements of Directive 2004/38, the Citizens’ Directive. The facts are also interesting, reminiscent of B v Secretary of State for the Home Department [2000] INLR 361, [2000] Imm AR 478, in which Lord Justice Sedley famously found on the facts of that case:

What is proposed in the present case, although in law deportation, is in substance more akin to exile. As such it is in my judgment so severe as to be disproportionate to this man’s particular offending, serious as it was, and to his propensities.

The appellant in Vassallo was an Italian national. However, he was born in 1948 and had resided in the UK since 1952. He was to all intents and purposes British, but lacked British nationality. He had once been on a family holiday to Italy but spoke no Italian and had no connections there. In the UK, though, he had committed many criminal offences. 68, in fact.

The tribunal concludes that, properly interpreted, the CJEU residence cases of Lassal, Dias and Ziolkowski (EU residence case list for members only) lead to the following conclusions (from the official headnote):

(1) A person may acquire qualifying residence for the purposes of exercising Treaty rights in respect of periods of residence arising before the UK became part of the European Community on 1 January 1973.
(2) Similarly, a person may acquire qualifying residence in respect of periods of residence arising before the implementation of the Immigration (European Economic Area) Regulations 2000.
(3) However, in each case the residence in question must be in accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC (the Citizens Directive) or in accordance with Schedule 4, paragraph 6 of the Immigration (European Economic Area) Regulations 2006.

The appellant had been assessed as being a low risk of reoffending. The Upper Tribunal reminds itself of Essa (EEA: rehabilitation/integration) [2013] UKUT 316 (IAC):

We observe that for any deportation of an EEA national or family member of such national to be justified on public good grounds (irrespective of whether permanent residence has been achieved) the claimant must represent a present threat to public policy. The fact of a criminal conviction is not enough. It is not permissible in an EEA case to deport a claimant on the basis of criminal offending simply to deter others. This tends to mean, in case of criminal conduct short of the most serious threats to the public safety of the state, that a candidate for EEA deportation must represent a present threat by reason of a propensity to re-offend or an unacceptably high risk of re-offending. In such a case, if there is acceptable evidence of rehabilitation, the prospects of future rehabilitation do not enter the balance, save possibly as future protective factors to ensure that the rehabilitation remains durable.

Although on the facts the appellant had not in fact acquired permanent residence, he was nevertheless saved from deportation by the low risk of reoffending assessment. Past convictions are not sufficient to justify deportation in European Union law.

My colleague Raza Halim was instructed for Mr Vassallo.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.