Secretary of State for the Home Department v AA (Poland) [2024] EWCA Civ 18 (19 January 2024)
The Court of Appeal has held that the FTT had erred in law in finding that the deportation of a foreign criminal who had served a four-year custodial sentence for child sex offences would infringe his rights pursuant to the EU Treaties as implemented by the Immigration (European Economic Area) Regulations 2016 and his right to respect for private and family life under article 8 of the ECHR. A Polish national, AA moved to the UK. In April 2007 he met his wife K who had moved to the UK from Poland earlier that year. They were married in 2012 and in January 2014, AA gained a Master’s degree in aeronautical engineering. In July of the same year AA and K’s daughter V was born. At this point AA began openly questioning his gender identity. His name was anonymised not for his own sake but only because it was a necessary measure for the protection of his daughter V who was a victim of the relevant offending as an infant and benefitted from the right to lifetime anonymity provided for by the Sexual Offences (Amendment) Act 1992. AA was not entitled to “imperative grounds” protection within article 28(3) of Directive 2004/38 and regulation 27(4) of the 2016 Regulations, because he was insufficiently integrated into the UK community. AA was convicted in 2018 of child sex offences. He was sentenced to five years’ imprisonment and made subject to the sex offender registration and notification requirements for 10 years. A wide-ranging sexual harm prevention order (SHPO) was also made.
In December 2020, the custodial portion of his sentence came to an end and the SSHD concluded that he constituted a genuine, present, and sufficiently serious risk to the public to justify his deportation on grounds of public policy and public security, and that it was proportionate to order his removal to Poland. The Court of Appeal found that this was not an exceptional case involving particularly strong features such as to allow the FTT to depart from the general normative guidance laid down by regulation 27(8) and Schedule 1, paragraph 4 to attach “little weight” to any integrating links formed “at or around the same time as” any offending or imprisonment. The SSHD accepted that AA had a right of permanent residence and had resided in the UK for at least 10 years, but found he was not entitled to “imperative grounds” protection within article 28(3) of Directive 2004/38 and regulation 27(4) because he was insufficiently integrated into the UK community. He also accepted that the case fell within the “serious grounds” category (set out in article 28(2) and regulation 27(3)) but concluded that this threshold was met. The SSHD rejected his human rights claim on the basis that, although Part 5A of the Nationality, Immigration and Asylum Act 2002 did not apply directly as he was an EEA national the provisions of Part 5A were relevant. The conclusion of the SSHD was that he had not shown that either of the exceptions in section 117C(4) and section 117C(5) applied, or that there were “very compelling circumstances” over and above those exceptions pursuant to section 117C(6).
First Tier Tribunal
AA appealed successfully to the FTT which held he was entitled to imperative grounds protection, as he was sufficiently integrated in the UK. The FTT found that his offending occurred “in the background”, had little effect on the remainder of his public social and cultural life, and had a “less destructive effect on integration” than would be the case with “physically violent conduct in public”. The risk posed by AA was not particularly serious, such as to mean that his removal was justified on imperative grounds of public security.
While the Offender Assessment System (OASys) report stated that he posed a “medium” risk of serious harm to children when in the community, that had to be considered “in light of the low risk of re-offending and the protective measures provided by the SHPO”, the likelihood that AA would comply with that order, and the existence of “multi-agency protection” against such offending. If it had been necessary to decide the issue, the FTT would have found that AA’s removal would be disproportionate—mainly because of the effect it would have on his rehabilitation and risk of future offending. The outcome of the human rights ground of appeal was dictated by the answer to the other grounds of appeal.
AA’s integrative links to the UK meant that article 8 of the ECHR was engaged by the deportation decision and that, removal being contrary to the 2016 Regulations, applying section 117B(1) of the 2002 Act, the decision was incapable of justification under article 8(2), which established the very compelling circumstances required by section 117C(6). On appeal, the UT held that the FTT had made no error of law and its conclusions were sufficiently reasoned.
The Court of Appeal
Baker, Elisabeth Laing and Warby LJJ allowed the SSHD’s appeal. The court addressed the issues of the level of protection, level of threat, proportionality and human rights.
(i) Level of protection
As to the level of protection, giving the judgment of the court, Warby LJ explained that Regulation 27(8) of the 2016 Regulations was in mandatory terms, and required the court or tribunal to “have regard to” the matters listed in Schedule 1. Also, notably, schedule 1 paragraph 4 was also in mandatory terms, and required “little weight … to be attached” to any integrating links which were formed “at or around the same time as” any offending or imprisonment. He held that the FTTJ fell into legal error in his approach to this issue in both the ways relied on by the SSHD and the UT erred in law in upholding his decision. As he said:
46. Paragraph 4 of Schedule 1 is in mandatory terms, requiring “little weight … to be attached” to any integrating links formed “at or around the same time as” any offending or imprisonment. Regulation 27(8) of the 2016 Regulations is also in mandatory terms. It is true, as Ms Hirst points out, that what Regulation 27(8) requires the court or tribunal to do is to “have regard to” the matters listed in Schedule 1. But I cannot accept Ms Hirst’s submission that these provisions are “not binding” on the FTT which is free to decide how to have regard to the specified matters in any given case. That is too broad a view.
47. The statutory language is similar to that of s 117B(5) of the 2002 Act, quoted above. In Rhuppiah v Home Secretary[2018] UKSC 58, [2018] 1 WLR 5536 [49] Lord Wilson JSC (with whom the other Justices agreed) characterised s 117B(5) as an “instruction” by Parliament to “have regard to the consideration that little weight should be given” to a private life formed by a person when their immigration status was precarious. He concluded that this affords the decision-maker only a small and “limited degree of flexibility”; the statutory provisions provide “generalised normative guidance that may be overridden in an exceptional case by particularly strong features” of the case. I would apply that reasoning to Regulation 27(8) and Schedule 1 paragraph 4 of the 2016 Regulations.
It was not suggested that the present case was an exceptional one involving particularly strong features that would allow the immigration tribunal to depart from the general normative guidance laid down by Regulation 27(8) and paragraph 4 of Schedule 1.
On that footing, if AA formed any integrating links with UK society in the 68 months immediately preceding the decision the FTTJ was duty bound to attribute “little weight” to any such links formed during 42 of those months.
Warby LJ observed that the FTTJ attributed significant weight to integration during the period when AA was offending, as is clear from paragraph [33] where he placed reliance on outward manifestations of integration at a time when the offending was “going on in the background”. In paragraph [34] the Judge also attached real and significant weight to AA’s conduct when in prison, saying that he had “engaged as much as he could with the activities on offer.” Warby LJ held that:
49. … In my judgement this reasoning was inconsistent with Regulation 27(8) and paragraph 4 of Schedule 1.
50. The reasoning in paragraph [33] of the FTT judgment is also wrong in principle. I am not persuaded by the UT’s narrow interpretation of this passage. But I do not think the FtTJ’s assessment can withstand scrutiny even on the UT’s analysis. The distinction identified by the UT is not a legitimate one. The reason why offending counts against the proposition that a person is integrated into society is that it shows disregard for fellow citizens and the rejection of core values of UK culture. The reasoning of Hamblen LJ in Binbuga v Secretary of State for the Home Department[2019] EWCA Civ 551 [56]-[57] is apposite:
“Social integration refers to the extent to which a foreign criminal has become incorporated within the lawful social structure of the UK … [and] to the acceptance and assumption by the foreign criminal of the culture of the UK, its core values, ideas, customs and social behaviour. That includes acceptance of the principle of the rule of law”.
Overall, serious sexual offending of the kind committed by AA involves a stark rejection of fundamental societal norms. AA was a large-scale consumer of pornography depicting and involving the abuse of children. He committed contact sexual offending against a vulnerable infant who was his own daughter. Such behaviour involves a repudiation of at least two core values of UK society: the need to protect children and the need to maintain trust between parent and child. The rejection of UK values inherent in offending of this kind is not rendered less significant by the fact that the offending did not involve physical violence, or was conducted in secret. A great deal of serious offending is non-violent and secretive. Nor is it appropriate to draw distinctions based on public activities that give the superficial appearance of integration. Much serious criminality is engaged in by people who lead outwardly decent lives. These are not regarded as mitigating features.
Next, the Court of Appeal considered the level of threat.
(ii) Level of threat
On this point the court held that the preventative or mitigating effects of measures such as imprisonment, licence conditions on release, SHPOs, and notification requirements were not themselves material to the question of what level of threat existed. Warby LJ applied Restivo (EEA – prisoner transfer) [2016] UKUT 449 (IAC) to hold that the seriousness of the threat that his personal conduct represented should have been assessed without regard to the mitigating measures on which the FTT placed weight. Warby LJ said that the UT’s decision in Restivo was rightly decided on this point and applied to the present case and that:
55. … Measures such as imprisonment, licence conditions on release, SHPOs, and notification requirements are all put in place because a person poses a threat to one of the fundamental interests of society. The existence of such measures is relevant because they involve a recognition of that threat and the need to prevent, manage, or mitigate it. But the preventative or mitigating effects that such measures may have are not themselves material to the question of what level of threat exists. The FTTJ’s “real world” approach in this case therefore involved the same error as was perpetrated by the FTT in Restivo. The seriousness of the threat that AA’s personal conduct represents should have been assessed without regard to the mitigating measures on which the FTTJ placed weight.
Thereafter the Court of Appeal considered proportionality.
(iii) Proportionality
The court held that the FTT had erred in stating that a balance was to be struck between AA’s personal conduct and the risk of compromising his rehabilitation.
Moreover, the relevance of his “personal conduct” was that it posed a threat to one of the fundamental interests of society in the UK which—ex hypothesi—was serious enough to justify his removal to Poland on (at least) “serious grounds”. AA’s personal interest in rehabilitation was relevant on the other side of the balance, in the context of his private life rights. However, the key question in that context was whether and to what extent his rehabilitation would be compromised by deportation. The FTT had no adequate basis for concluding that that would be so and it had no basis for finding that there was some UK public interest that counted against removing AA and instead ensuring his rehabilitation within the context of UK society.
(iv) Human rights
The court held that the application of the 2016 Regulations was a legally distinct exercise from the assessment of a human rights claim. Where both arose, they should be addressed separately and in turn as held in Badewa v SSHD [2015] UKUT 329 (IAC).
The Court of Appeal stated that the 2016 Regulations should be addressed first, including the assessment required by regulation 27(5)(a) as to whether deportation would comply with the EU principle of proportionality and the provisions of Part 5A of the 2002 Act had no part to play at that stage.
If deportation would interfere with article 8 rights, the question would arise of whether it would be in accordance with the law. By contrast, that would not be so if the deportation of the appellant would be contrary to the 2016 Regulations and in such a case the human rights analysis need go no further. However, if deportation would be consistent with the 2016 Regulations and otherwise lawful, the tribunal should address the public interest question in the way that Parliament had prescribed in Part 5A of the 2002 Act. As Warby LJ held:
71. In my judgment, the correct approach is as indicated in Badewa. The application of the 2016 Regulations is a legally distinct exercise from the assessment of a human rights claim. Where both arise, they should be addressed separately and in turn. The 2016 Regulations should be addressed first, including the assessment required by Regulation 27(5)(a) of whether deportation would comply with the EU principle of proportionality. The provisions of Part 5A of the 2002 Act have no part to play at that stage. But they must be addressed as part of the human rights assessment, if the public interest question arises.
The Court of Appeal allowed the appeal on all four grounds.
Comment
The court noted that AA is now 40 and arrived in the UK aged 25. He had not spent most of his life here. His wife and child are now in Poland. Against that background, and given what the court said on the issue of rehabilitation, Warby LJ found it easy to see the force of the SSHD’s argument that neither of the exceptions referred to in section 117C(4) and (5) could be said to apply and the desirability of AA’s rehabilitation proceeding in the UK could not amount to a very compelling circumstance “beyond” those exceptions. But the court did not think it would be appropriate for it to address those issues at this stage. The question of how those issues should now be resolved remained for consideration.
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