The EU Dimension to Proportionality

juropean-justiceEssa, R (On the Application Of) v Upper Tribunal (Immigration & Asylum Chamber) & Anor [2012] EWCA Civ 1718 (21 December 2012)

Deportation is a hugely controversial issue. Unsurprisingly, opinion on it remains utterly polarised. Journalists and lawyers alike have tried to facilitate a better understanding of deportation but it continues to divide British society. For the most part, people’s views remain wedded to their politics. Overwhelmingly, Article 8 (the right to a private and family life), a qualified right, takes centre stage and  remains fundamental in determining whether someone will be deported/expelled. In general, especially in cases involving criminality, uncertainty prevails but one thing is for certain. Cases are all the more interesting where the deportee is a citizen of the European Union because over and above the traditional Article 8 proportionality assessment, the European Union dimension to proportionality is also at play.   


Daha Essa (or “E”), the appellant, a Dutch national of Somali origin came to the UK in 2001 with his mother and siblings. He received secondary and college education here. E’s criminal career began with handling stolen goods. After receiving a fine for a bail offence, E received a sentence of 5 years’ detention in a young offenders institution for robbery. Subsequently, the Secretary of State for the Home Department (SSHD) decided to make a deportation order against him on conducive grounds under section 3(5)(a) of the Immigration Act 1971 with reference to the Immigration (European Economic Area) Regulations 2006.

Although Maurice Kay LJ did not dwell on the facts of E’s robbery conviction, these can be revisited in the Court of Appeal’s judgment (Hughes LJ, Wilkie J and Sir Geoffery Grigson) in R v Essa [2009] EWCA Crim 43. The robbery occurred on a train between Clapton and Liverpool Street and the victim – Mr Newport – was robbed of his mobile phone, i-Pod and wallet at knifepoint by the only other passenger in the carriage. The robber removed the victim’s driving licence from the wallet, read the address and threatened, “If you grass me up come and find you.” Thereafter, the robber alighted at Bethnal Green and banged on the window – behind which the victim sat terrified – and repeated the threat not to report the matter to the police. This was recorded on CCTV; E was arrested for the offence. During interview, E refused to answer the questions put to him and was subsequently identified as the robber by the victim. At [7] and [12], Hughes LJ observed, “at no stage prior to or during the trial was a defence statement of any kind served”. And although E denied any wrongdoing his Lordship remarked, “it is unsurprising that the Crown asserted that it recognisably was him.”

So in those proceedings, four years ago, E’s case was that there had been a robbery but he was not the robber. Instead E contended that section 11(5) of the Criminal Procedure and Investigations Act 1996 – “faults in disclosure by accused” whereby the Court or any other party may (a) make such comment as appears appropriate and (b) draw such inferences as appear proper in deciding whether the accused is guilty of the offence concerned – regarding the effect of the absence of a defence statement, was incompatible with the right to a fair trial under Article 6 of the ECHR. Hughes LJ held that (1) the right to silence was part of the right to a fair trial, as was, even more importantly but distinctly, the right not to incriminate oneself and (2) the significance of section 34 – setting out the effect of accused’s failure to mention facts when questioned or charged – of the Criminal Justice and Public Order Act 1994 was not whether an offender was silent in interview, but whether he placed reliance at trial on something that should have been said in interview. The “acid question” was not whether – relying on his solicitor’s advice – it was reasonable to decline to answer questions, but whether the defendant could reasonably have been expected to say in interview what he said at trial. Dismissing E’s appeal the Court [23] held that in the circumstances of the case, there was “no doubt that section 11(5) is perfectly compatible with the Convention.”

Returning to E’s immigration case, his appeal to the First-tier Tribunal (FTT) was dismissed and the Upper Tribunal (UT) refused E permission to appeal owing to which he applied for judicial review under R (Cart) v UT [2011] 3 WLR 107. Although limited permission was granted, Lang J – in R (Essa) v UT (IAC) & Anor [2012] EWHC 1533 (QB) – dismissed E’s substantive application following which the case made its way into the Court of Appeal.

The Court of Appeal

In the instant case, the Court of Appeal (Maurice Kay, Toulson and Aikens LJJ) allowed E’s appeal and remitted his case to the Upper Tribunal (UT) for it to grant permission to appeal. At first glance, this may seem awry; but in reality it was an extremely enlightened and judicious decision. Maurice Kay LJ described the issue on the appeal as “narrow but important” [5]. E argued that the FTT’s decision was erroneous because it examined proportionality through the lens of Article 8 ECHR without considering the EU dimension. Although E complained that the FTT failed to grasp the “full content” of EU law, his Lordship considered “that the FTT was mindful of both regimes.”

(1) Bulale

The FTT’s decision turned on Bulale v SSHD [2009] 2 WLR 992. In that case, Waller, Buxton and Smith LJJ held that Judge Peter Lane had been right in upholding a decision to deport an EU citizen because his behaviour constituted a genuine and sufficiently serious threat undermining one of the fundamental interests of society (namely protecting members of the public from violent crime) and hence there were serious grounds of public policy for deporting him.

(2) Batista

However in Batista v SSHD [2010] EWCA Civ 896, allowing an EU national’s appeal, Carnwath LJ (as he then was) found that in considering whether the deportation of an EU citizen after a conviction for burglary and grievous bodily harm was proportionate, the offender’s “fragile” prospects of a better life with his girlfriend in the UK compared to his prospects of rehabilitation upon deportation to Portugal could be a relevant consideration for the tribunal. The case, of course, had more to do with the “insurmountable obstacles” test that the tribunal had wrongly applied to Batista by deciding that it was acceptable for him and his family to go and live in Portugal so that people in the UK would be protected from his (potential) criminal behaviour in future.

Largely on his own initiative – as the argument was not canvassed before him in great detail – Carnwath LJ [27, obiter] took the view (Maurice Kay and Black LJJ concurring) that even in relation to those who had committed grave crimes, “common sense” suggested “a degree of shared interest between the EEA countries in helping progress towards a better form of life.” In all, consideration had to be given to Valentin Batista’s relationship with his girlfriend Tamara Deane (with whom he had a son). Whereas doubt loomed over the expectation that he could return to Portugal and remain crime free despite Batista’s siblings’ presence in that country because they may not be able or willing to offer him support. Therefore, there was “no reason in principle why” such points “may not be taken into account in the overall balance of proportionality.” For the sake of completeness – and perhaps to play devil’s advocate – it is worth mentioning that Batista had an atrocious criminal record which reach its climax when he, intoxicated on alcohol and cannabis, broke into a flat while the occupants were sleeping; one wearing a bracelet. When Batista tried to remove the bracelet, the owner awoke and Batista smashed two bottles of wine on his victim’s head!

(3) Tsakouridis

In E’s case, Maurice Kay LJ [7] noted that the FTT did not refer to Batista. His Lordship also observed that in Batista the Court did not refer to Advocate General Bot’s opinion in Land Baden-Würtemberg v Tsakouridis [2011] 2 CMLR 11; a case concerning deportation, EU law, public policy, rights of entry and residence and the supply of drugs by a Greek national resident in Germany. In summary, in Tsakouridis the Court of Justice of the European Union (CJEU, Grand Chamber) held that a person’s absences from the Member State in which he lived could prevent him from enjoying the protection from expulsion afforded by Article 28(3)(a) of Directive 2004/38/EC in the event those absences were found to have undermined his links with the state in question.

Prior to the CJEU’s ruling on 23 November 2010, in [95] of his opinion of 8 June 2010 Bot AG explained that expulsion decisions, following a criminal penalty, against EU citizens “must state precisely” how expulsion “does not prejudice the offender’s rehabilitation.” This approach preserved the individual’s interests and those of “the Union in general.” Prohibitions on re-entry following expulsion from one Member State did not preclude an EU citizen from using his right of freedom of movement in the other Member States and “it is therefore in the general interests that the conditions of his release should be such as to dissuade him from committing crimes and, in any event, not risk pushing him back into offending.”

Moreover, in cases involving expulsion following completion of a criminal punishment, the proportionality test had “a special significance” and “the competent authority” was required “to take account of factors showing that the decision adopted is such as to prevent the risk of reoffending” [94].

(4) Essa: The EU Dimension

Taking the CJEU’s judgment – which was delivered after the FTT’s decision – into account, Maurice Kay LJ clarified “that there is a European dimension which widens consideration beyond the interests of the expelling Member State and those of the foreign criminal” [9]. Reiterating its case-law, the Grand Chamber had, of course, demanded that “a balance must be struck between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned” and “the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, which, as the Advocate General observes in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general” [50]. (Emphasis supplied by Maurice Kay LJ.)

Lang J’s [46] interpretation of Tsakouridis in E’s casewhere her Ladyship bore Carnwath LJ’s approach in Batista in mind – was that, when applying regulation 21 (decisions taken on public policy, public security and public health grounds) of the 2006 Regulations, it was incumbent upon decision-makers to consider whether deportation would damage/undermine the likelihood of rehabilitation from offending in the host country and “weigh that risk in the balance when assessing proportionality under regulation 21(5)(a).”

Hence, her Ladyship held that generally “this will necessarily entail a comparison with the prospects of rehabilitation in the receiving country.” For Lang J [53] – [54], despite the FTT’s failure to distinguish between Article 8 and the 2006 Regulations as regards proportionality, the UT’s decision to refuse permission to appeal the FTT’s decision did not comprise an error of law because “the court would be imposing too high a standard of decision-writing on an FTT to find that this amounted to an arguable error of law.”

Maurice Kay LJ agreed [12] with Lang J’s position on Tsakouridis and emphasised that while “the European dimension” was inextricably linked to the proportionality exercise in the deportation of EU citizens. His Lordship explained that the issue at the heart of E’s appeal was “whether the FTT had regard” to “the European dimension” and concluded that “it did not.” But his Lordship remained unsurprised at the FTT’s omission because the SSHD’s case was constructed on Bulale which the FTT relied upon in reaching its conclusion. Maurice Kay LJ wisely observed [13] that the FTT appreciated that its job in relation to regulation 21 and Article 8 “was not coextensive” because not only had the elements constituting regulation 21(6) been listed, the test of “serious grounds of public policy or public security” in connection with deporting EU citizens was also recalled. Yet in ascertaining proportionality, the FTT had “conflated the two instruments.”

The Court of Appeal highlighted that although an Article 8 proportionality exercise was conducted in relation to the evidence in the case, the FTT did not consciously consider “the prospects of rehabilitation as between” the UK and the Netherlands “or an awareness of the interest ‘of the European Union in general’ which would have required a comparison of rehabilitation prospects as indicated by Lang J” [14]. But the Court also made clear that “the omission was quite understandable at the time.”

In the final analysis, Maurice Kay LJ held that:

15. The case for the Secretary of State in this Court is that, even if the FTT did not have the European dimension in mind, in the end it did have regard to the matters relevant to that dimension. In particular, there is a positive passage in the determination about the ability of the appellant “to rebuild his life in Holland” and a degree of scepticism about how responsive he would be to guidance from his siblings in this country once this litigation is at an end. In effect, Mr Hall is submitting that the FTT adventitiously did comply with Tsakouridis, rather as Molière’s M. Jourdain had talked in prose for years without realising it. In my judgment, although this submission is not unarguable, in the end it does not hit its target. Even when benevolently construed, the tribunal cannot be said to have done what Tsakouridis and Lang J required of it. For this reason, I would allow this appeal and remit the case to the UT so that it can grant permission to appeal to itself.

Molière_Mignard_ChantillyFor the SSHD, an emollient feature in the judgment is that Maurice Kay LJ [16] did not think that the CJEU adopted [50] of AG Bot’s opinion where the AG [95] stipulated that primary decision-makers making expulsion decisions should “state precisely in what way that decision does not prejudice the offender’s rehabilitation”. Because such a requirement is “overprescriptive”, his Lordship felt that “the comparative exercise envisaged by Lang J as the usual corollary of Tsakouridis may well be achieved without such a straitjacket.”

People confronted with deportation/expulsion after serving criminal sentences often complain that they are being punished for a second time. There is considerable truth in this claim because people, even “criminals”, can change and deserve a chance at a better life with their loved ones in this country. Similarly, individuals who have served long criminal sentences are generally unafraid of re-entering the UK – in breach of their deportation orders – through Ireland or the other Member States and removing them again and again is a waste of time and money.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, Citizens Directive, CJEU, Court of Appeal, European Union, Proportionality and tagged , , , , . Bookmark the permalink.

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