| IMMIGRATION — Appeal — Removal — Secretary of State ordering expulsion of EEA national on grounds of public policy — Claimant with right to reside having committed robberies — Immigration tribunal and judge on reconsideration not assessing seriousness of propensity to commit robberies— Whether Court of Appeal having jurisdiction to pursue point of general importance not raised below— Whether threatened future criminal conduct sufficiently serious threat to society to justify expulsion — Immigration (European Economic Area) Regulations 2006 (SI No 1003 of 2006), reg 21 — Citizens Directive 2004/38/EEC (OJ 29/06/2004 L229, p35)
Bulale v Secretary of State for the Home Department.[2008] EWCA Civ 808; [2008] WLR (D) 238
CA: Waller, Buxton and Smith LJJ: 11 July 2008
The Court of Appeal had jurisdiction, in very particular circumstances, to pursue a point of general importance in an immigration case not raised below once it occurred to the court, in order to ensure the state’s compliance with its international obligations. Where the point involved whether a propensity to commit robberies constituted a serious threat to society, it was for each member state to decide what sufficed to make threatened future criminal conduct serious enough to justify expulsion of an EEA national who had a right to reside in the United Kingdom.
The Court of Appeal so stated when dismissing the appeal of the claimant, Hussein Bulale, against a decision of Senior Judge PR Lane on 12 July 2007 who reconsidered and upheld a decision of the Asylum and Immigration Tribunal on 2 February 2007. The AIT upheld the Secretary of State’s decision on grounds of public policy, namely the claimant’s propensity to commit criminal offences, to deport him from the UK under the provisions of the Immigration (European Economic Area) Regulations 2006 (SI No 1003 of 2006).
BUXTON LJ said that the 2006 Regulations transposed into UK domestic law the requirements of the Citizens Directive 2004/38/EEC (OJ 29/06/2004 L229, p35) and applied to any EEA national who had been admitted to or who had a right to reside in the UK. A person could only be expelled if there were serious grounds of public policy (reg 21(2) threatening one of the fundamental interests of society (reg 21(5)(c) and the expulsion was proportionate in the light of factors in reg 21(6).The claimant, by his propensity to commit robbery, threatened that fundamental interest. The question whether such a propensity constituted, in terms of the Directive, a sufficiently serious threat to society to justify his expulsion was of general importance. The Secretary of State noted that the issue had not been raised before the AIT, and so it could not have erred in law in not addressing it; on a reconsideration the tribunal only had jurisdiction to consider points addressed in the order for reconsideration or those which were obvious in the sense set out in R v Secretary of State for the Home Department, Ex p Robinson [1998] QB 929; accordingly the Court of Appeal in turn had no jurisdiction to consider the point on appeal. His Lordship concluded that the Court of Appeal did have jurisdiction, but would emphasise the importance of the above principles and the importance of only departing from them in very particular circumstances. The point was not Robinson-obvious in the sense that a court could be criticised for not taking it of its own motion. However, the issue appeared to the Court of Appeal to be engaged and to be of some general importance. The observation in Robinson’s case that as organs of the state the appellate authorities were bound to exercise their powers to ensure the state’s compliance with its international obligations, was directed at the High Court in its appellate role, but they must apply equally to the Court of Appeal. Accordingly, and whether or not the point was “obvious”, once it had in fact occurred to the court it must be open to the court to pursue it. There was no direct guidance on the question of what sufficed to make threatened future criminal conduct “serious” in the sense of the 2006 Regulations and the Directive. The first tribunal concluded that, looking at the totality of the evidence, the claimant represented a genuine and sufficiently serious risk to the public. There were serious grounds of public policy for deporting him. It was entitled to take that view as a matter of EU law. The thrust of the thinking that led to the Directive seemed fairly clearly to have been that it should be, at the least, difficult to expel an EU citizen on the basis of crimes of dishonesty, but that violence was a different matter. As to the necessary level of violence, no attempt had been made to lay down rules or guidelines at Community level, and the member state was therefore given a certain amount of judgment in deciding what its law-abiding citizens must put up with. His Lordship would apply the general approach in Van Duyn Case 41/74 [1974] ECR 1337, para 18 to hold that in the absence of any detailed guidance from the institutions of the Community, the organs of the member state, provided that they conscientiously applied the terms of the Community legislation, were given power to determine, with due regard to the seriousness ascribed to forms of conduct by domestic law, whether that conduct fulfilled the Community criterion of seriousness. The first tribunal properly exercised that power in this case. As to proportionality, its findings were unchallengeable. The appeal would be dismissed.
SMITH LJ and WALLER LJ agreed.
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