In the very recent case of Arranz (EEA Regulations – deportation – test) [2017] UKUT 294 (IAC) President McCloskey set out the correct approach to EU law deportations. The official headnote instructs us:

(i) The burden of proving that a person represents a genuine, present and sufficiently threat affecting one of the fundamental interests of society under Regulation 21(5)(c) of the EEA Regulations rests on the Secretary of State.

(ii) The standard of proof is the balance of probabilities.

(iii) Membership of an organisation proscribed under the laws of a foreign country does not without more satisfy the aforementioned test.

(iv) The “Bouchereau” exception is no longer good law: CS (Morroco) applied.

The striking factual background to Arranz was that the appellant had been convicted in Spain of the murder of 12 civil guards and injury to 43 civil guards and 17 civilians, all perpetrated on 14 July 1986. These offences were committed in the name of the terrorist organisation ETA and the appellant had been sentenced to 30 years imprisonment.

He had been released after 24 years, travelled to the UK, and was currently sought by the Spanish authorities under an extant European Arrest Warrant. In separate proceedings the appellant’s extradition to Spain had been ordered. The extradition was in fact carried out on 5 May 2017, not long after this deportation appeal was decided, with Spanish media confirming that the appellant is now imprisoned in that jurisdiction.

In the UK he had been found in possession of various false identity documents. The appellant did not hold permanent residence in the UK (and therefore did not benefit from enhanced protection from deportation).

The “Bouchereau” exception mentioned in the headnote was essentially a CJEU case law route by which a person could be deported because of public revulsion at a particularly heinous crime even though there was no risk of reoffending.

In the case of Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245, having earlier doubted whether the Bouchereau and Marchon exception was still good law, Moore-Bick LJ held at paragraph 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.

The reference to exceptional cases is elucidated a little at paragraph 31:

I do not think that public revulsion at the offender’s conduct has any part to play in deciding whether there are sufficiently serious grounds of public policy to justify his deportation, save in exceptional cases of a kind in which failure to remove the offender might itself tend to undermine confidence in the state’s ability to administer justice.

See also Nazli v Stadt Nürnberg (Case C-340/97) in which the CJEU held that “Community law precluded the expulsion of a national of a Member State for the purpose of deterring other foreign nationals without taking account of the personal conduct of the offender or of the danger which that conduct represented” (direct quote from paragraph 19 of Straszewski).

The appeal against deportation in Arranz was ultimately allowed by the President, despite the rather striking factual background, on the basis that the Secretary of State could not demonstrate that there was a present risk from the appellant.

Arranz references the Immigration (EEA) Regulations 2006 because of the date it was decided. The President emphasises that the regulations are derived from EU law, which is cited extensively, and EU law has not changed since 2006.

That said, the Immigration (EEA) Regulations 2016 include new provisions in Schedule 1 regarding deportation and the fundamental interests of the United Kingdom. The legality of the requirement that judges refer to these considerations is dubious, however, and some of the requirements seem clearly at odds with the requirements of EU law. Paragraph 7(f), for example, provides that the fundamental interests of the UK include

excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action.

It is hard to see how this fits within the framework of Directive 2004/38, the end of the Bouchereau exception or even with the Court of Appeal case of Straszewski, where these comments were restricted to exceptional cases only and the word “revulsion” rather than “offence” was deployed.

There are no reported cases yet dealing with Schedule 1 of the 2016 regulations, but that is surely just a matter of time.