This is yet another interesting and useful judgment by His Honour Judge Anthony Thornton QC. The decision involves the Immigration (European Economic Area) Regulations 2006. It reverses the failures of the Secretary of State for the Home Department (SSHD), the First-tier Tribunal (FtT) and the Upper Tribunal (UT) because the failures amounted to a compelling reason under the criteria set out by the Supreme Court in R (Cart) v UT  UKSC 28 and entitled the claimants to judicial review of the UT’s decision to refuse permission to appeal.
The case makes fascinating reading at a time when (a) there is huge media spotlight on the “softness” of the law on deportation and (b) judicial review in the immigration and asylum field is becoming extremely controversial. The court also sent out a clear signal about the manner in which issues embedded in Article 8 of the European Convention on Human Rights (ECHR) are to be treated.
Factual and Procedural Synopsis
The case involved Patricia Kluxen or “A” (who had German nationality but was originally from Ghana) and her German children. The family enjoyed lengthy residence in the UK. However, they were not treated as European Union (EU) nationals and made subject to deportation orders.
A, B and C – the claimants – applied for judicial review of the UT’s decision to refuse them permission to appeal against the FtT’s determination.
Born in Africa, A emigrated from Ghana and immigrated to Germany. A had five children and four grandchildren. All ten of them were German citizens. In the UK, A lived in conditions of poverty with her children B, C and D: respectively aged 16, 15 and 21. A did not have a partner and her elderly widowed mother lived in Ghana and her nine siblings also resided there. The claimants did not make an application for anonymity. But given the unusual features, sensitive details, children’s involvement and Article 8 issues in the case the court decided to make an anonymity order. The case also involved A’s grandchild G (aged 8 by the time the instant judgment was handed down). A claimed G had lived with her since 2006 and was tutored at home and was not registered in a school. The SSHD officials who investigated in 2012 claimed that A was “evasive” about G (who lived with A as her daughter E was mentally unwell).
In November 2009 A was convicted on four counts – two counts of assisting unlawful immigration and two counts possessing fake identification documents – of attempting to facilitate (in November 2008) the entry into the UK of two young children of a Ghanaian national. Subsequently, A was awarded and served a sentence of 30 months’ imprisonment. Although A made progress in prison and received good probation reports, in view of her conviction, in December 2010 the SSHD nonetheless decided to deport her on the basis that her removal was justified on the grounds of public policy and public security: deportation orders in respect of B and C were also made.
A, B and C appealed to the FtT on grounds that the decision breached EU law in relation to their UK residence and otherwise: the FtT upheld the deportation decision because it found no evidence of their UK residence. However, the FtT failed to give any reasons for upholding the SSHD’s decision and opined that were A permanently resident her deportation would nevertheless be justified on serious grounds of public policy and security. For the SSHD, A’s deportation was proportionate because she did not enjoy close ties with the UK and could go back to Germany with B and C. Moreover, in October 2011 the UT refused A permission to appeal against the FtT’s decision and the SSHD confirmed the original deportation decision. In January 2013, A was detained pending removal.
In the criminal case against her, A appealed against her sentence and the deportation recommendation. In May 2010, the Court of Appeal (Thomas LJ, Maddison J and Sir Geoffery Grigson: R v Kluxen  EWCA Crim 1081) upheld A’s sentence but dismissed the recommendation to deport her because it should never have been made. However the court  wrongly found that she was a Ghanaian national. HHJ Anthony Thornton also discerned that the Court of Appeal’s factual understanding of the case was “mistaken” . This was simply because the facts were “taken from the pre-sentence report” which was inaccurate. But the Court of Appeal also explained that making a recommendation for deportation should only be considered in “rare” cases regardless of whether the person was an EEA national or a foreign national: so the recommendation to deport A could not stand. Although HHJ Anthony Thornton QC made an order for anonymity because he thought that the “judgment may receive greater publicity than most other Administrative Court permission reconsideration judgments” , it is nonetheless possible to tell from Court of Appeal proceedings that A’s name is Patricia Kluxen.
Describing the procedural history of the case as “convoluted” , the Administrative Court explained that the relevant decisions under challenge were those of the SSHD (i) to serve deportation orders on A, B and C (ii) to refuse to revoke the order against A (iii) and to serve removal directions on A. Equally, A also challenged the UT’s refusal of permission to appeal. There was also a potential challenge by A to her continuing detention. Although the orders to deport B and C had been revoked, they nevertheless continued their claim for judicial review (i) on the ground that the deportation orders had not been made within the meaning of the 2006 Regulations and (ii) on human rights grounds.
On 18 January 2013, Mr Dingemans QC refused A’s application for permission to apply for judicial review. Similarly, two days later, Leggatt J refused an interim injunction restraining the SSHD from removing A to Germany. On the same day, A’s solicitors renewed the permission application and the SSHD suspended the removal directions. Owing to funding problems, A’s solicitors ceased to act for her but her friends created a fund to instruct public access counsel to represent her at the renewal hearing on 18 April 2013.
A’s grounds of challenge included that she arrived in the UK in June 2003 rather than August 2004 and that each decision failed to consider that she was permanently resident in the UK and could only be deported on serious grounds of public policy; each decision relied on outdated risk assessments; each decision neglected the interests of children; each decision failed to consider the European dimension; each decision disregarded Article 8; and each decision failed to consider proportionality.
The claimants relied on three decisions of the Court of Appeal: Daha Essa v UT  EWCA Civ 1718 (see post here), Mochado v SSHD  EWCA Civ 597 and BF (Portugal) v SSHD  EWCA Civ 923. These decisions were clear that in the interests of the offender and the general interests of the EU the decision-maker needed to balance the prospects of rehabilitation in the host country and weigh the risk in the balance when assessing proportionality under regulation 21(5)(a) which mostly involved a comparison with the prospects of rehabilitation in the receiving country. In Mochado, Sedley LJ (with whom Lady Justice Arden and Gage LJ concurred) remarked: “the probation service is not a ‘support service’” because “probation officers are trained to be objective and cautious in relation to offenders” . Therefore, his lordship “would have given” the probation officer’s report “more weight than the IAT did”. For the court  “proportionality” was “not an issue that can ordinarily be addressed in one sentence” and Sedley LJ clarified that Amrollahi v Denmark 56811/00  ECHR 585 demonstrates that a properly conducted examination of proportionality in certain cases is quite capable of producing a decision in favour of an applicant.
Thus there is a European dimension which widens consideration beyond the interests of the expelling Member State and those of the foreign criminal.
Granting the renewed application for permission to apply for judicial review, HHJ Anthony Thornton QC held as follows:
A had a very strongly arguable case that had strong prospects of success that both the decision of the UT refusing permission to appeal and the decision of the FtT against which permission to appeal was sought were wrong in law .
Inexplicably, A had been treated throughout as a Ghanaian national, whereas she was a German national whose Ghanaian nationality ended before she arrived in the UK .
As an EU and an EEA national, A could only be deported if it was permissible under the 2006 Regulations, which were enacted to give effect to Directive 2004/38/EC (the Citizens’ Directive), and which, since the EU’s adoption of the ECHR, were to be read as far as possible as compatible with it .
Deportation decisions had to consider Article 8 of the ECHR. Expulsion under the Citizens’ Directive and the 2006 Regulations could only be on serious grounds of public policy or security and there was a requirement of proportionality .
The FtT’s determination should have referred to the mistake about nationality . Its findings about residence could not be justified. There was documentary evidence that A, B and C had lived in the UK for at least six years and that B and C had been at UK schools for nine years; owing to her skills as a seamstress and a child minder A had been self-employed and self-supporting and was not dependent on public funds. They all had well-documented residency . To establish her length of residence, A relied upon a decision of the homelessness review panel of Havering LBC dated August 2004 which involved Part VII of the Housing Act 1996 –. Her church had confirmed her as a member of the community for six years and this evidence was before the FtT. The court said that the burden of proof was on the defendant SSHD to prove factors justifying deportation . Even if the burden was on A, she had discharged it. It was wrong of the SSHD and the FtT to think that A was not residing in the UK in accordance with the 2006 Regulations. She had established a prima facie case evidential case that she was so residing. Even put at its very lowest A case’s was good and the family should have been treated as permanently resident in the UK .
Moreover, the FtT’s decision was flawed as it concluded that A was not self-sufficient because she had been reliant on child tax credits/public funds. In fact Article 7(1)(b) of the Citizens’ Directive expressed the appropriate test as A and her children not becoming a burden on the social assistance system during their period of residence. The court noted that child tax credits were outside the class of assistance referred to as “social assistance system” and at any rate receiving tax credits does not constitute “a burden on the social assistance system”.
The court  observed that since A was a permanent resident (within the meaning of regulation 15) in the UK when the deportation decision was made in December 2010, she could only be deported on “serious grounds of public policy or public security” (within the meaning of regulation 21).
HHJ Anthony Thornton was keen to emphasise that A’s conduct in prison carried weight in rebutting any perceived threat she posed to the community. Given that it was her first offence, the court disagreed with both the SSHD and the FtT that A would re-offend. Noting that it was up to the SSHD to use up-to-date information to prove that in fact A posed a risk to the community, HHJ Anthony Thornton QC  said this:
The defendant [SSHD] should have obtained, and the FtT should have directed at a pre-hearing case management hearing, an up-to-date probation report and up-to-date OASys and likelihood of reoffending assessments. These would have been critically important documents since the FtT had to undertake an up-to-date risk assessment of the likelihood of A behaving in the offence specific way that she had adopted in 2008. That behaviour was the only behaviour that the defendant had identified as contributing to the risk to the fundamental interests of the UK on which the deportation decision was based. If such up-to-date documents had not been available, it was neither reasonable nor in conformity with the EEA Regulations for the FtT to rely on the 2009 documents since it had to assess proportionality of deporting A when set against her present threats to society, it could not rely on A’s previous conviction standing alone or on the threat she had posed when being sentenced two years earlier.
The interests of B (aged 16) and C (aged 15) – a primary consideration – were tied up with those of A and had to be considered which the FtT failed to do . While the FtT “purported” to take their interest into account, no efforts were made to inquire whether they thought returning to Germany after 8 years would be appropriate: they spoke very little German, they had no relatives in Germany who they had bonded with; they were not attuned to German culture and had “become fully integrated into an English way of life.” No impediment existed to taking B and C’s (and potentially G’s) views on board: the SSHD’s officials could have visited them and recorded their views. Similarly, in line with its duties under section 55 of the Borders, Citizenship and Immigration Act 2009, the FtT could have directed that their school reports be provided and asked for a report analysing the impact on their lives of returning to Germany .
Neither the European dimension nor proportionality had been considered . It was critical to consider whether A’s deportation – and forced separation from her family – would increase the risk of her re-offending. For the court, in comparison to remaining in the UK, the risk of A re-offending seemed to be higher if she were deported to Germany where she would be socially, economically and culturally alienated. Because the European dimension was a key ingredient of the 2006 Regulations, the FtT’s decision could not be covered up by the fact that Daha Essa (which only highlighted the correct approach to follow) was a recent case . HHJ Anthony Thornton QC noted  that in conducting the proportionality exercise the FtT neglected nine factors. The factors included things such as the length of A’s residence, her weak ties with Germany, correctly evaluating the risk posed by A, her rehabilitation, enforced family break up and children’s duty.
The FtT’s decision that there were serious grounds of public security and public policy to deport A was Wednesbury unreasonable and it was insufficient “to provide as a throwaway afterthought that deportation would in any case justified have been justified on ‘serious’ grounds having reached the conclusion that it was justified on ‘ordinary’ grounds” .
Taken together those matters amounted to a compelling reason for a challenge under the principles in R (Cart) v UT  UKSC 28 (Cart applied –). Moreover, there had been no consideration of B and C’s Article 8 rights if A were deported .
Regulation 24(5) of the 2006 Regulations entitled A to a fresh assessment as to whether there has been any change in circumstances since the original deportation order but no fresh deportation decision was taken in the light of the change in circumstances following A’s progress in prison and afterwards .
Any procedural problems – such as precisely pleading the Cart claim in the grounds for review as exacted by good practice – were overridden in A’s favour –.
HHJ Anthony Thornton QC hoped that the SSHD would consider whether to revoke the existing deportation orders, and if not, to invite fresh reasons from A as to why such an order should not be made .
A’s case makes really interesting reading in an environment where judicial review has become a no go area. For example, any applications for permission to apply for judicial review lodged on or after 1 July 2013 do not have a right to renew the application at an oral hearing if refused and identified as totally without merit: CPR 54.12(7). Equally, shorter time limits (as of 1 October 2012 no later than 16 days after the date on which notice of the UT’s decision was sent to the applicant) specified in CPR 54.7A of reviewing the decision of the UT also make things more difficult for claimants. A’s case had received judicial scrutiny but was not handled correctly. Yet, because of its complicated facts and procedural history, it was a hard case to filter out as one with merit. Of course unmeritorious claims must be filtered out but immigration factual summaries on Home Office paperwork are extremely unclear and do not always disclose the exact details (applications, appellate history etc) of cases. So even skilled people who routinely deal with the Home Office may easily make mistakes.
Recently judges have been furious with lawyers over poor practice standards in cases relating to failed asylum seekers seeking judicial review. The judges rightly point out that for people to be able to practice in the complex field of immigration law practitioners need to have pretty serious skills. (If I am not mistaken, HHJ Anthony Thornton QC expects no less from the SSHD, the FtT and the UT.)
As reported recently on ein and elsewhere, solicitors misleading the court when making urgent out of hours applications will be punished and contempt will not be tolerated. It is probably fair comment that insofar as immigration related judicial review cases are concerned lawyers in England are probably a bit scared about approaching the court for a remedy even where a case has merit.
Anyway, returning to the controversial issue of deporting European nationals, in Vasconcelos (risk – rehabilitation) Portugal  UKUT 378 (IAC) (16 July 2013) the UT (Blake J and Judge Southern) dismissed a Portuguese (and Angolan) man’s appeal. It is an interesting determination. Weighing the prospects of rehabilitation as a decisive factor (rather than only a factor) in the proportionality balance, the FtT allowed the appeal. Conversely, the UT found that Vasconcelos, who gave evidence through an interpreter and was an opportunistic offender involved in burglary and theft, was not well integrated in the UK and had weak prospects of rehabilitation as he would not be able to find employment. Given his age, state of health, family, economic considerations, length of UK residence, and degree of social and cultural integration, an exclusion decision taking affect as if it were a deportation order would be proportionate . The UT decided that the tribunal should consider any statistical assessment of re-offending provided by NOMS but is not bound by such data if the overall assessment of the evidence supports the conclusion of continued risk.