Liberty - Detention - Sentence of imprisonment for public protection
Secretary of State for the Home Department v FV (Italy): CA (Civ Div) (Lord Justices Pill, Aikens, Lady Justice Rafferty): 14 September 2012
Regulation 21 of the Immigration (European Economic Area) Regulations 2006, SI 2006/1003, so far as material, provides: ‘…(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who - (a) has resided in the UK for a continuous period of at least 10 years prior to the relevant decision; or (b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20 November 1989.’
The respondent (FV) was a national of Italy. He arrived in the UK on 3 March 1985, aged 27, and married a UK citizen in August 1985. FV and his wife had five children. He subsequently left the marital home and, in May 1999, moved into accommodation with the deceased, with whom he had a turbulent relationship. In March 2001, FV killed the deceased after a drunken fight with him. FV, who had previous convictions, was found guilty of manslaughter. In 2006, he was released to hostel accommodation, but because no place was available to him, he was rearrested and subsequently received damages for the unlawful imprisonment which followed.
The secretary of state made an order for the deportation of FV. FV appealed to the immigration tribunal (the 2007 tribunal) on the ground that the decision to deport him was unlawful and not consistent with the high threshold set under regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (the 2006 regulations).
The appeal was dismissed, the 2007 tribunal having found that the medium risk of FV killing again was a sufficiently serious threat to public security as to fall within the highest level of calculus within the regulations, and that there existed imperative grounds, pursuant to regulation 21(4), of public security for the decision to deport him. The Asylum and Immigration Tribunal (the 2008 tribunal) allowed FV’s appeal against that dismissal, having found that the case for FV’s deportation could not be justified on the facts on ‘imperative grounds of public security.’ The secretary of state appealed.
Issues arose as to the status of FV in the UK and the extent to which the power of the secretary of state to deport him was limited by the requirements of directive 2004/38/EC (the directive) (see  of the judgment) and regulations made under it, the 2006 regulations. The secretary of state submitted that FV was at risk of re-offending which, if it occurred, would be likely to jeopardise public security through putting members of the public at risk of serious harm or death. FV submitted that, though plainly a serious offence, the killing which had occurred in domestic circumstances, taken with the other offending, could not possibly satisfy the imperative grounds test.
A further issue arose as to whether the fact that FV had spent four years and two months in prison in the UK between the start of his sentence of imprisonment in 2 May 2002 and his release in July 2006 meant that he could not maintain, at the time of the secretary of state’s decision to deport him on 23 March 2007, that he had resided in the UK for a continuous period of 10 years immediately prior to that decision. That issue depended on the correct interpretation of regulation 21(4)(a) of the 2006 regulations. FV submitted that he had protection under regulation 21(4) as a Union citizen who had resided in the UK for a continuous period of at least 10 years prior to the relevant decision, namely the decision to deport in 2007. Consideration was given to Land Baden-Wurttemberg v Tsakourdis (Tsakourdis): C 145/09  All ER (D) 247 (Nov) and PI: Case C-349/09, unreported 22 May 2012. The appeal would be dismissed.
(1) The test to be applied to establish ‘imperative grounds of public security’ in regulation 21(4) was as stated in Tsakouridis, namely that the conduct of the person concerned had to represent a genuine and present threat to a fundamental interest of society or of the member state concerned. Previous criminal convictions could not in themselves constitute grounds for taking public policy or public security measures and justifications that were isolated from the particulars of the case or that relied on considerations of general prevention could not be accepted. Consequently, an expulsion measure had to be based on an individual examination of the specific case. It was further settled law (PI) that the concept of ‘imperative grounds of public security’ presupposed not only the existence of a threat to public security, but also that such a threat was of a particularly high degree of seriousness (see ,  of the judgment)
Some domestic authority did need reconsideration in the light of Tsakouridis and PI. There was no doubt that to establish a permanent right of residence under regulation 21(3)(a), residence had to be in accordance with the regulations. Once permanent residence had been established, the test to be applied under regulation 21(4), read with regulation 21(5) and (6), was the integration test stated in recitals 23 and 24 as explained in Tsakouridis. None of the authorities required the instant court to reach a different conclusion on the facts (see ,  of the judgment).
In the instant case, the 2007 tribunal had plainly erred in law in its approach to the expression ‘imperative grounds of public security’. Their conclusion could not be justified and the 2008 tribunal had been correct to find an error of law. The reasoning of the 2008 tribunal on that issue had been more measured and detailed. To succeed, the secretary of state had needed to establish an error of law by the 2008 tribunal. There was no real prospect of the tribunal finding ‘imperative grounds of public security’ to justify deportation. The respondent had committed a serious offence of violence against the person justifying a sentence of eight years’ imprisonment. He had committed other offences.
Notwithstanding those offences and the discretion permitted to a member state in setting out its scale of values, a tribunal applying the regulation and the guidance in the authorities could not properly find that there were imperative grounds of public security justifying deportation (see -  of the judgment).
Land Baden-Wurttemberg v Tsakouridis: C-145/09  All ER (D) 247 (Nov) applied; HR (Portugal) v Secretary of State for the Home Department  1 All ER 144 considered; PI: Case C-349/09 Unreported 22 May 2012 considered; Carvalho v Secretary of State for the Home Department; Omar v Secretary of State for the Home Department  All ER (D) 166 (Dec) considered.
(2) The secretary of state was not, at the instant moment, entitled to challenge the respondent’s claim to 10 years’ residence under regulation 21(4)(a). Given a permanent right of residence under regulation 21 (3), such a challenge would in any event have no real prospect of success, on the facts in the instant case. The respondent had been in the UK for 27 years, 14 years as husband of a UK citizen, and he had children in the UK. He had not been responsible for the delays in decision-making since his incarceration in 2002 (see  of the judgment).
Nick Armstrong (instructed by Messrs Luqmani Thompson & Partners) for FV; Kieron Beal QC (instructed by the treasury solicitor) for the secretary of state.