Upper Tribunal Clarifies Case C-400/12 MG

MG (prison-Article 28(3)(a) of Citizens Directive) Portugal [2014] UKUT 392 (IAC)

This famous case – referred to the Court of Justice of the European Union (CJEU) by the Upper Tribunal (UT) at [2012] UKUT 268 (IAC) – about the citizens’ Directive returned to the UT to be decided in light of the CJEU’s decisions in Case C-400/12, SSHD v MG ECLI:EU:C:2014:9 (see here) and Case C-387/12, Onuekwere v SSHD ECLI:EU:C:2014:13 (see here). The tribunal judges explained that that “the issue of deportation of foreign criminals is of compelling public importance.” But, after taking account of the further evidence that came to light in this case, the UT concluded that MG was entitled to succeed in her appeal even on the basis of the lowest or “baseline” level of protection. So, in deciding MG’s case, the UT did not need to dwell on the parties’ submissions on the actual meaning of the CJEU’s judgment. But given the ruling’s significance, the UT nevertheless felt compelled to say something about those parts of the parties’ submissions that dealt with the meaning of the CJEU’s eventual judgment.

MG and her husband JG (both Portuguese) entered the UK where they had three sons – M, J and L. MG gave up work to have the children. While inactive she was supported by her husband until their separation. Their children were placed in foster care as a result of a report by hospital staff that injuries to L were non-accidental and MG was sentenced to 21 months’ imprisonment for having been convicted on one count of cruelty and three counts of assault by beating L who was aged under 16 years. While in prison MG applied for permanent residence in the UK and the government decided to deport her – on grounds of public policy and public security pursuant to regulation 21 of the Immigration (European Economic Area) Regulations 2006.

When the UT [2012] UKUT 268 (IAC) referred this case to the CJEU it considered the competing views of the Home Office and MG’s counsel on the issue of whether or not her deportation was possible after applying the test for the secondary level of protection and found this to be a “finely balanced” question.

However, in post-CJEU proceedings in the UT the Home Office accepted that MG had acquired permanent residence because of her husband’s employment history. Moreover, it was also accepted that if she was entitled to the maximum protection arising out of ten years’ residence as laid down in Article 28(3)(a) of the citizens’ Directive – so that she could only be deported if “imperative grounds of public security” existed – then MG’s appeal had to succeed as such grounds were absent.

On the other hand, the Home Office did not abandon the argument that MG’s imprisonment in 2009 and 2010 in fulfillment of her 21 month sentence justified her deportation even if she passed the test for the secondary level of protection for persons with permanent residence laid down in Article 28(2) within the meaning of which “serious grounds of public policy or public security” for deportation need to be shown. The Home Office advanced a similar argument in respect of the baseline level of protection.

In the past, a difference of opinion existed regarding the risk MG posed. Positive reports in her favour by professionals evaluated her as being at a low risk of re-offending and the family court thought that she could rehabilitate. Conversely, other reports found that she shirked responsibility for her actions and did not completely show herself to be free of heroin and associated with drug users. In particular, some sources considered MG to pose a high risk of physical harm to her children and to others (the family court partially took this view but thought it could be overcome with supervision).

In her oral evidence in post-CJEU proceedings MG said that she only had indirect (i.e. telephone) contact with her children since her release on immigration bail in March 2012 and had since resided with her godmother who she knew from Portugal (where MG had a father, two sisters as well as aunties and cousins). Her employer (a florist who employed her part-time in November 2013) confirmed that MG was a trustworthy and model employee.

In response to questions in relation to her offences of cruelty and assault against one of her own children in 2008, she answered that she was doing everything to “have her life back” which she upon reflection described as “broken” at the time of her offending. To highlight her efforts at rehabilitation, she said that since her release she was clean of drugs (she no longer associated with her old friends) and only rarely had a drink and that her husband did not oppose her daily phone contact with the children who sent her a Christmas card and a Mother’s Day gift. Indeed, despite their permanent separation, MG’s husband JG said this in her support:

We have been trying to solve together concerns about the education of our three sons … I believe that if we not in the same country anymore that could bring emotional damage for our sons, and I’m very concerned about it … it is my wish that [MG] can stay near us … our family has been through lots of emotional damage, specially our boys, and all we are asking is the right of being a free family again.

Storey and Allen UTJJ thought that:

33. The claimant [MG] has still never made a clear statement of remorse accepting her guilt, but we take the thrust of her evidence before us to be that she accepts that at the time of the offence her life was falling apart.  She was no longer voicing outright denial of guilt.

The UT did not think that an outdated (but forward looking) MAPPA report assessing MG to be at a medium risk of re-offending was determinative of her present risk of re-offending and in light of the new evidence it decided that MG was:

26. … entitled to succeed in her appeal even on the basis of the lowest or “baseline” level of protection.

Thus, the Home Office’s submission that in respect of the maximum level of protection contemplated by Article 28(3)(a) the UT is constrained by its terms to confine itself to the facts as they stood at the date of the decision to deport was clearly “wrong” because in reality once an appeal lies against that decision, then, via Schedule 1 to the 2006 EEA Regulations, the Tribunal has power under section 85(4) of the Nationality, Immigration and Asylum Act 2002 to “consider evidence about any matter which [it] thinks relevant to the substance of the decision, including evidence which concerns a matter arising after the date of the decision.”

Equally, the UT also found that in the event it was wrong to find that the Home Office is not entitled to deport MG on the baseline level of protection, dismissing her appeal would still be unjustified because the Home Office ultimately came to accept that she had acquired a permanent right of residence and was therefore entitled to be considered under the second highest level of protection (in comparison to the time of reference, this was no longer a “finely balanced” question because in light of the fresh evidence the position was “strikingly different”). The UT thus explained that:

40. Accordingly we are satisfied that the decision we should re-make is to allow the claimant’s appeal as it has not been shown that there are either grounds or serious grounds of public policy or public security justifying the deportation decision.

The UT took the view that the fact that the CJEU highlights that “in principle” time spent in prison interrupts the continuity of residence in relation to satisfying the 10 year requirement means that so far as establishing integrative links is concerned such periods must have a negative impact.

On the whole, the UT gave this guidance:

(1) Article 28(3)(a) of Directive 2004/38/EC contains the requirement that for those who have resided in the host member state for the previous 10 years, an expulsion decision made against them must be based upon imperative grounds of public security.

(2) There is a tension in the judgment of the Court of Justice of the European Communities in Case C-400/12 Secretary of State v MG, ECLI:EU:C:2014:9 , in respect of the meaning of the “enhanced protection” provision.

(3) The judgment should be understood as meaning that a period of imprisonment during those 10 years does not necessarily prevent a person from qualifying for enhanced protection if that person is sufficiently integrated. However, according to the same judgment, a period of imprisonment must have a negative impact in so far as establishing integration is concerned.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Children, Citizens Directive, CJEU, Deportation, Employment, Tribunals and tagged , , . Bookmark the permalink.

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