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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A B C v Secretary of State for the Home Department [2013] EWHC 1272 (Admin) (22 May 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1272.html Cite as: [2013] EWHC 1272 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
A B C |
Claimant |
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- and - |
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Secretary of State for the Home Department |
Defendant |
____________________
Ryan Kohli (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 18 April 2013
____________________
Crown Copyright ©
His Honour Judge Anthony Thornton QC :
Introduction
(1) The defendant's decision to make a deportation order against A dated 22 December 2010;
(2) The Upper Tribunal's decision dated 12 October 2011 to refuse A's application for permission to appeal the determination of the FtT dated 4 July 2011;
(3) The defendant's decision to make deportation orders against A, B and C dated 31 October 2011;
(4) The defendant's decision dated 7 February 2012 to:
(i) refuse A's application dated 3 November 2011 to revoke the deportation order made against her dated 31 October 2011;
(ii) certify under section 26(5) of the EEA Regulations 2006 ("the EEA Regulations") that A's representations in support of her decision to revoke had already been considered by the UKBA and the FtT so that A had no right of appeal against the refusal decision; and
(iii) decide that any formal request made by A to revoke the deportation order on the grounds that there had been a material change of circumstances since the decision of the FtT could only be made after she had returned to Germany; and
(5) The defendant's decision dated 16 January 2013 and the decision to detain her pending her removal.
(1) that the deportation orders dated 22 December 2010 and 31 October 2011 were not made in accordance with the EEA Regulations; and
(2) on human rights grounds.
(1) The decision dated 23 May 2010 refusing A leave to enter under EC law.
(2) The decision dated 13 January 2011 prohibiting A from working in the UK.
(3) The restriction order dated 8 February 2012.
(4) The decision dated 7 January 2013 granting A temporary admission and the subsequent decision dated 11 January 2013 refusing her admission under EU law.
(5) The removal directions dated 11 January 2013 directing A's removal to Germany.
(6) The decision dated 11 January 2013 to detain A pending her removal.
(7) A's continuing immigration detention.
(1) A renewed challenge to the defendant's decision dated 7 February 2012 not to revoke the deportation orders dated 22 December 2010 and 31 October 2011.
(2) A challenge to the decision dated 8 January 2013 to grant A temporary admission as being a decision in breach of EU law and article 8;
(3) A challenge to the decision dated 11 January 2013 to serve removal directions on A which, in context, amounted to a challenge to the defendant's alleged failure to enforce the deportation orders dated 22 December 2010 and 31 October 2011 against A without first considering whether there had been a material change in her circumstances since the service of the deportation order dated 22 December 2010.
On behalf of B and C, the letter intimated a root and branch challenge to the legality of serving B and C with a decision that granted them temporary admission and a subsequent decision to serve them with removal directions.
(1) Each decision was based on A having first entered the UK in August 2004 when the available evidence clearly demonstrated that she had entered the UK with B, C and D in June 2003;
(2) Each decision was taken on the erroneous basis that, having entered the UK with B, C and D in June 2003 in order to establish herself and her three children in the UK, A has never since been resident in the UK nor permanently resident in the UK when, in law and fact she has been resident in the UK since June 2003 and permanently resident in the UK since June 2008;
(3) Each decision was taken without applying the correct test, namely that A could only be deported on serious grounds of public policy;
(4) Each decision-maker did not obtain and hence did not take account of an up to date and appropriate risk assessment or risk assessments of A;
(5) Each decision should have taken account of the best interests of B, C and G. That required each decision-maker to obtain or be provided with sufficient up to date information of the best interests of each child and a summary of each child's views as to his or her best interests to enable that decision-maker to be fully informed as to each child's best interests. Each decision-make was, in fact, provided with wholly insufficient information and was not provided with any information as to the views of each child.
(6) Each decision should have, but did not, give primary consideration to the best interests of B, C and G. Instead, each relied on out of date and inadequate information and assessments that largely dated back to A's offences committed in November 2008 and her criminal trial and sentence in September and November 2009 and a limited amount of more recent information obtained at the hearing of her FtT appeal in June 2011 and this information was never updated subsequently.
(7) Each decision failed to take account of the EEC dimension required by the Citizens' Directive ("CD") and the EEA Regulations.
(8) Each decision failed to consider or give effect to the article 8 rights of A, B, C, D or G.
(9) Each decision failed to undertake a proper or sufficient proportionality consideration in which all relevant factors were weighed up and considered in the round in order to determine whether it was proportionate to deport A.
(1) Whether the judicial review claim includes a challenge to the UT's "Cart" decision dated 12 October 2011and, if so, whether it is now open to A to make a Cart challenge to that decision;
(2) Whether the judicial review claim includes a challenge to the defendant's deportation decision dated 31 October 2011 and, if so on what grounds;
(3) Whether, the judicial review claim includes a challenge to the defendant's revocation decision dated 7 February 2012. If so, further issues arise as to whether:
(i) that decision was a revocation decision taken under paragraph 24A of the EEA regulations or was instead some other and what decision;
(ii) if the former, can A challenge the decision on the grounds that it has the effect of wrongly depriving her of an appeal at all and also deprives her of an in-country human rights appeal or whether A's only remedy is to appeal out-of-country on her arrival back in Germany;
(iii) if the latter, whether the challenge should be by way of appeal out-of-country or an in-country judicial review and, if the latter, on what grounds.
(4) Whether, and if so on what grounds, the judicial review claim includes a challenge to the 2013 removal directions decisions. If it does, what are the grounds of challenge. Further, is it open to A to challenge the removal directions on the grounds that they had not been preceded by a review carried out by the defendant as required by paragraph 24(5) of the EEA Regulations. A fresh regulation 24(5) deportation decision is required when enforcement of a deportation decision takes place more than two years after the original decision.
(5) In the light of all these considerations, I must then decide what order to make.
A's Conviction and Sentence
35. The appellant,[A], who was born on 21 August 1964, is not a citizen of the EU. She is a Ghanaian national. On 25 September 2009 she was convicted by a jury in the Crown Court at Lewes of two counts of assisting the unlawful entry into the United Kingdom of another person, contrary to s.25(1) of the 1971 Act, and two counts of possessing false identity documents contrary to s.25(5)(c) of the Identity Cards Act, 2006. On 6 November she was sentenced by Miss Recorder Cutts QC to serve 30 months' imprisonment on the first two counts, and eighteen months' imprisonment on the other two counts, all the sentences to run concurrently. A recommendation was made for her deportation. Her application for leave to appeal against the length of her sentences was refused by the Single Judge, and has been renewed. The Single Judge granted her application for leave to appeal against the recommendation that she be deported.
36. The appellant had a co-accused, Leticia Garban, who was born on 16 February 1980. Leticia Garban was charged and convicted only on the first count of the indictment. She was sentenced to 51 weeks' imprisonment suspended for two years, with an unpaid work requirement. No recommendation was made for her deportation.
37. On 8 November 2008 the appellant arrived at Gatwick Airport from Ghana. She had with her two children, a boy and a girl. The boy's travel documents were German, giving his name as Bernard Schatz. The girl's documents were also German and gave her name as Gwen Kirchoff. The travel documents and the names given were false. When questioned by immigration officers the appellant said that the boy was her son and the girl her niece. The officers were not satisfied and called the police. To the police, the appellant said that the boy was her nephew and that the girl was a child of a friend living in London. In fact the boy was the son of the appellant's co-accused and he, like the girl, who was ten years of age, was a Ghanaian national. It transpired that the co-accused had sent money to the appellant to fund the illegal entry of her son into the United Kingdom. The Recorder took the view that the appellant not only escorted the two children to the United Kingdom but had provided the false travel documents, and had done so for money.
38. The appellant was of previous good character. She had lived in Germany for 14 years and had been married to a German national. She had three children aged 17, 13 and 12, two of whom lived in Germany with an aunt, and one of whom lived in Ghana with the appellant's extended family. A pre-sentence report assessed the appellant's risk of re-offending as 1 in 10. The co-accused was 29 years of age, of previous good character, and living legitimately in the United Kingdom.
39. On the appellant's behalf, her counsel submits that there was an unjustifiable discrepancy between the custodial sentence received by the appellant and the suspended sentence imposed on the co-accused. In our judgement, however, the difference between the sentences was entirely justified. The co-accused was younger. She was convicted of only one offence, and that was in relation to her own son. The appellant on the other hand was involved professionally in that the children were unrelated to her, she acted for money and she supplied the false documents.
40. Counsel further submits that this was a case in which none of the aggravating features identified in the case of R. v. Stark [1999] 1 Cr. App. R. (S.) 422 was present. We disagree. The Recorder found that the offences were planned, that the appellant acted for money, and that the children were strangers to her. All these are amongst the aggravating factors identified in Stark.
41. Counsel further submits that the Recorder failed to give sufficient weight to the mitigation available to the Appellant. In fact, save for her good character which the Recorder acknowledged, there was no mitigation.
42. These were serious offences and a total sentence of 30 months' imprisonment cannot be regarded even arguably as manifestly excessive. Accordingly, we refuse the renewed application for leave to appeal against the sentences of imprisonment. We deal with the appeal against the recommendation for deportation at paragraph 49 and following below.
(1) For reasons that are not explained, A was tried, sentenced and considered during the appeal on the basis of her being a Ghanaian national whereas she was in fact a German national who, it would appear, had ceased to have Ghanaian nationality some years previously and before she had first arrived in the UK.
(2) The judgment handed down on 14 May 2010 refers to A having three children aged 17, 13 and 12, two of whom lived in Germany with an aunt, and one of whom lived in Ghana with A's extended family. These facts were clearly taken from the pre-sentence report when B, C and D were aged 17, 13 and 12. That report was prepared on 19 October 2009. That report was mistaken in stating that B, C and D were living in German and Ghana. The factual position appears to be somewhat different. The papers before the FtT showed that A had only been taken into custody after her trial verdict on 25 September 2009 to await sentence that took place on 2 November 2009. A lived with B, C and D whilst awaiting her trial since she was remanded on bail following her arrest in August 2008 and remained on bail until the conclusion of her trial. On being taken into custody on 25 September 2009, B and C moved temporarily to Germany to stay with one of their cousins, E and F whilst A was awaiting sentence but they returned soon afterwards to their home in Romford to be looked after by a family friend whilst A served the custodial part of her sentence. D had only been to Ghana once as a small child. The reference to a third child being in Ghana may have been made due to a misunderstanding of what A told the probation officer (in the interview in prison at which a Twi interpreter was present) since it is possible that A was referring to G who, on a later occasion[8] A had stated had been living with her since 2006. In summary, therefore, in May 2010, B, C and D had resided uninterrupted in England since 2003 and B and C were only temporarily in Germany for a short period after 5 September 2009. D remained throughout the period from June 2003 in England.
(3) A was recommended for deportation by the sentencing judge and it was that recommendation which formed the principle ground of her appeal. Although the Court of Appeal considered this ground of appeal on the basis that A was Ghanaian, the apparent error in A being put forward as a Ghanaian did not affect the reasoning or decision of the Court of Appeal, particularly as the unrelated case involving two EEA nationals who had also been recommended for deportation by their sentencing judge were heard and decided by the Court of Appeal at the same time as A's appeal. The Court of Appeal decided that a recommendation for deportation should nowadays only be considered in very rare circumstances, whether the potential deportee was a foreign national or an EEA national and that, even if A was a Ghanaian, her case was not one of those rare cases that enabled the sentencing judge to consider making a recommendation.
Relevant law
(1) Deportation Decisions - The EU Citizens' Directive and the UK EEA Regulations[11]
1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided in its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
If the EU citizen has resided in the host member state for the previous five years in accordance with the EEA Regulations and the CD, expulsion must be on "serious grounds of public policy or public security" (CD Article 28.3 and EEA Regulations, regulation 21(3)). In any event, there is a requirement of proportionality because decisions must be based "exclusively on the personal conduct of the individual concerned" and previous criminal convictions "shall not in themselves constitute grounds for taking such measures":
Permanent right of residence
This section has no associated Explanatory Memorandum
15(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations[12] for a continuous period of five years;
(c) a worker or self-employed person who has ceased activity;
(d) the family member of a worker or self-employed person who has ceased activity;
(e) a person who was the family member of a worker or self-employed person where—
(i) the worker or self-employed person has died;
(ii) the family member resided with him immediately before his death; and
(iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;
(f) a person who—
(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained the right of residence. …
Exclusion and removal from the United Kingdom
… 19(3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if –
(a) that person does not have or ceases to have a right to reside under these Regulations; or
(b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21.
(4) A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.
Decisions taken on public policy, public security and public health grounds
21(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(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 United Kingdom for a continuous period of at least ten 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 20th November 1989.
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.
Person subject to removal
24(1) This regulation applies to a person whom it has been decided to remove from the United Kingdom in accordance with regulation 19(3).
(2) Where the decision is under regulation 19(3)(a), the person is to be treated as if he were a person to whom section 10(1)(a) of the 1999 Act applied, and section 10 of that Act (removal of certain persons unlawfully in the United Kingdom) is to apply accordingly.
(3) Where the decision is under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly.
(4) A person who enters or seeks to enter the United Kingdom in breach of a deportation order made against him pursuant to paragraph (3) shall be removable as an illegal entrant under Schedule 2 to the 1971 Act and the provisions of that Schedule shall apply accordingly.
(5) Where such a deportation order is made against a person but he is not removed under the order during the two year period beginning on the date on which the order is made, the Secretary of State shall only take action to remove the person under the order after the end of that period if, having assessed whether there has been any material change in circumstances since the deportation order was made, he considers that the removal continues to be justified on the grounds of public policy, public security or public health.
(6) A person to whom this regulation applies shall be allowed one month to leave the United Kingdom, beginning on the date on which he is notified of the decision to remove him, before being removed pursuant to that decision except—
(a) in duly substantiated cases of urgency;
(b) where the person is detained pursuant to the sentence or order of any court;
(c) where a person is a person to whom regulation 24(4) applies.
Revocation of deportation and exclusion orders
24A (1) A deportation or exclusion order shall remain in force unless it is revoked by the Secretary of State under this regulation.
(2) A person who is subject to a deportation or exclusion order may apply to the Secretary of State to have it revoked if the person considers that there has been a material change in the circumstances that justified the making of the order.
(3) An application under paragraph (2) shall set out the material change in circumstances relied upon by the applicant and may only be made whilst the applicant is outside the United Kingdom.
(4) On receipt of an application under paragraph (2), the Secretary of State shall revoke the order if the Secretary of State considers that the order can no longer be justified on grounds of public policy, public security or public health in accordance with regulation 21.
(5) The Secretary of State shall take a decision on an application under paragraph (2) no later than six months after the date on which the application is received.
Appeal rights
26(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision. …
(4) A person may not bring an appeal under these Regulations on a ground certified under paragraph (5) or rely on such a ground in an appeal brought under these Regulations.
(5) The Secretary of State or an immigration officer may certify a ground for the purposes of paragraph (4) if it has been considered in a previous appeal brought under these Regulations or under section 82(1) of the 2002 Act. …
(7) The provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these Regulations to the Asylum and Immigration Tribunal in accordance with that Schedule.
Out of country appeals
27(1) Subject to paragraphs (2) and (3), a person may not appeal under regulation 26 whilst he is in the United Kingdom against an EEA decision—
(a) to refuse to admit him to the United Kingdom;
(aa) to make an exclusion order against him;
(b) to refuse to revoke a deportation order made against him;
(d) to remove him from the United Kingdom after he has entered the United Kingdom in breach of a deportation or exclusion order.
(2) Paragraphs (1)(a) and (aa) do not apply where—
(a) the person held a valid EEA family permit, registration certificate, residence card, document certifying permanent residence or permanent residence card on his arrival in the United Kingdom or can otherwise prove that he is resident in the United Kingdom;
(b) the person is deemed not to have been admitted to the United Kingdom under regulation 22(3) but at the date on which notice of the decision to refuse to admit him is given he has been in the United Kingdom for at least 3 months; or
(c) a ground of the appeal is that, in taking the decision, the decision maker acted in breach of his rights under the Human Rights Convention or the Refugee Convention, unless the Secretary of State certifies that that ground of appeal is clearly unfounded.
(3) Paragraph (1)(d) does not apply where a ground of the appeal is that, in taking the decision, the decision maker acted in breach of the appellant's rights under the Human Rights Convention or the Refugee Convention, unless the Secretary of State certifies that that ground of appeal is clearly unfounded.
(2) Case law
1. BF (Portugal):
"2. "Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles --
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person's previous criminal convictions do not in themselves justify the decision."[16]"
[My insertion: The decision-maker must also take account of the considerations listed in regulation 21(6) of the EEA Regulations.[17]]
"3. The tribunal also set out regulation 21(6) of the Regulations and referred to the decision in MG and VC (EEA Regulations; conclusive deportation; Ireland))[18]http://www.bailii.org/uk/cases/UKIAT/2006/00053.html, which stressed the introduction of the word "serious" into the regulations. The tribunal had to determine (1) what was the relevant personal conduct of the respondent? Having determined that question, it had to decide (2) whether that conduct represented a genuine, present and sufficiently serious threat and, if so, (3) whether that threat affected one of the fundamental interests of society. It also had to stand back and consider (4) whether the deportation of the respondent would be disproportionate in all the circumstances. …".[19]
2. Dana Essa:
"… Advocate General Bot delivered his Opinion in Land Baden-Würtemberg v Tsakouridis[20]:
"In my view, when [the] authority takes an expulsion decision against a Union citizen following the enforcement of the criminal sanction imposed, it must state precisely in what way that decision does not prejudice the offender's rehabilitation. Such a step, which relates to the individualisation of the sanction of which it is an extension, seems to me to be the only way of upholding the interests of the individual concerned as much as the interests of the Union in general. Even if he is expelled from a Member State and prohibited from returning, when released the offender will be able, as a Union citizen, to exercise his freedom of movement in the other Member States. It is therefore in the general interests that the conditions of his release should be such as to dissuade him from committing crimes and, in any event, not risk pushing him back into offending."
This emphasis on "the general interests" and "the interests of the Union in general" is mediated through the proportionality test which "takes on a special significance which requires the competent authority to take account of factors showing that the decision adopted is such as to prevent the risk of reoffending"[21]
9. In its judgment … the CJEU described[22] one side of the equation as:
"the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, which as the AG observes in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general."
Thus there is a European dimension which widens consideration beyond the interests of the expelling Member State and those of the foreign criminal.
10. Lang J … interpreted Tsakouridis as follows:
"In my judgment, the judgment … in Tsakouridis establishes that the decision-maker, in applying regulation 21 of the EEA Regulations, must consider whether a decision to deport may prejudice the prospects of rehabilitation from offending in the host country, and weigh that risk in the balance when assessing proportionality under regulation 21(5)(a). In most cases, this will necessarily entail a comparison with the prospects of rehabilitation in the receiving country … "."
Decision of the Defendant
(1) A had provided no evidence of the precise date of her arrival in the UK, she had failed to show that she had exercised any treaty rights and she was dependent on public funds. She was, therefore, neither resident nor permanently resident in the UK.
(2) The decision to deport her was based on the defendant's view that A retained a propensity to reoffend given her blatant disregard for the requirements of the Immigration Rules and her failure to take responsibility for her actions. The offence that highlighted these genuine, present and sufficiently serious threats to the public involved her providing false documentation to facilitate bringing two children into the UK for financial gain as both a favour to a friend and to facilitate the entry of strangers. Moreover, following her arrest, three false German identity documents were found at her home address which she could not account for. Her detrimental attitude of mind was highlighted by the fact that these actions were taken despite the impact that they would have on her own children.
(3) The decision was proportionate since she had no close ties to the UK, was not resident or permanently resident in the UK and had been resident in Germany for 14 years before her arrival in the UK. There was no good reason why her children could not return to Germany and there was no evidence that they had continuously resided in the UK for at least five years.
Determination of the FtT
(1) German or Ghanaian national
(2) Permanent residence
(3) Personal conduct
(4) Interests of B, C and possibly G
(5) European dimension.
(6) Proportionality.
a) The family's permanent residence in England and their residence here for at least 8 years;
b) A's inability to speak German and her lack of a home, financial support or German roots;
c) The lack of any means of support for A in Germany or for her children in England if she was forced to live in Germany;
d) The enforced break-up of the family;
e) The potentially greater likelihood of A re-offending if she was deported to Germany compared with that likelihood if she remained in the UK with her children.;
f) A's previous good character and the offence specific nature of her offence giving rise to her being a low risk of re-offending;
g) The evidence of a further reduction in risk and of an improved attitude to the need to avoid any repeat behaviour that had occurred in the years between 2009 and 2013;
h) The full effect on B and C of their mother's deportation and their views as to this possibility, if they were forced to go and live in Germany. These were primary considerations; and
i) The possibility that A, through her lack of education and the absence of an interpreter at the FtT hearing, had not been able fully to identify the extent to which she accepted responsibility for, and had learnt from, the very serious offences that she had committed in 2008.
Serious grounds of public policy rather than public policy
"… if we were wrong and the appellant has acquired permanent residence, we consider that for the same reasons [A]'s deportation is justified on serious grounds of public policy or public security".
The FtT had decided that A was not permanently resident and had reached its decision on that basis. In apparently reaching an alternative decision based on serious grounds of public policy and public security, it reached an alternative decision for which they gave no reasons. It needed to explain why the threat to public policy or public security was not merely at the third and lowest tier but was also in the intermediate tier of permitting deportation only where the grounds were "serious". Otherwise, it is highly arguable that the decision that there were serious grounds was Wednesbury unreasonable.
Cart Challenge
73. (2) Appeal
(3) Article 8.
(4) A's entitlement to a fresh deportation decision.
Procedural Difficulties
(1) The SSHD has been throughout a defendant and has taken a full part in the claim having serving an amended summary grounds of defence and in opposing this oral renewed application for permission by counsel.
(2) The claim form was issued on 28 November 2011 following the Upper Tribunal's refusal decision which took effect on 13 October 2011. Under the rules then operating for Cart cases, the claim as originally made was well within time[31].
(3) The claims that are being advanced pursuant to that original claim can be read as including a Cart claim.
(4) The grounds that set out in A's amended grounds document may be pursued as part of the original claim given the procedural agreement reached by the parties and embodied in the consent order dated 13 February 2012 and sealed on 30 October 2012. This order provided that:
"… the claimant's application for permission to apply for judicial review issued on 28 November 2011 be allowed to proceed on the basis of amended grounds received on 27 February 2012".
(5) The amended grounds contain paragraphs 8 – 56 which are headed "Amended Grounds for challenging the Upper Tribunal's Refusal of Leave to Appeal". The defendant has pleaded to the amended grounds, in part by pleading that the refusal of permission by the Upper Tribunal is "not susceptible to judicial review" because "the claimant can[not] establish an important point of principle or other compelling reason". The summary amended grounds document pleads, both fairly and fully, to all grounds advanced in the amended grounds document including the application for a judicial review of the Upper Tribunal's refusal decision. This pleading seeks to show that no compelling reason for a second appeal exists.
(6) A, through her counsel at the hearing of the renewed application for permission, had put forward a succinct statement of the suggested compelling reason why Cart permission should be granted. The two relevant paragraphs[32] are:
"1. The relevant provisions of EU law and relevant case law have not been adequately addressed properly and/or adequately and so have not been applied by the FtT or the Upper Tribunal in this case.
2. Furthermore, relevant considerations arising under article 8 ECHR and the cases on the best interests of the child have not been properly considered by the FtT decision or by the refusal decisions of the FtT or the Upper Tribunal."
(7) The Upper Tribunal can and should be added as a party. I deal with the relevant procedure that is to be adopted in paragraph 84 below
Conclusion
(1) A Cart application may not include any other claim than the "Cart claim".
(2) The claim form should be served on the Upper Tribunal as well as the defendant.
(3) If the Upper Tribunal wishes to take part in the proceedings, it must file and serve an acknowledgement of service within 21 days of service on it of the claim form.
(4) If the Upper Tribunal wishes there to be a hearing of the substantive application, it must make its request for such a hearing no later than 14 days after service of the order granting permission. If no request for a hearing is made within that period, the court will make a final order quashing the refusal of permission without a further hearing.
83. The parties' counsel agreed the terms of an order to give effect to this judgment which enabled these procedural provisions to be complied with. A copy of the terms of that order is set out in the appendix to this judgment.
HH Judge Anthony Thornton QC
22 May 2013
Appendix
Terms of the Order of 22 May 2013 to give effect to the judgment
Following the grant of permission to apply for judicial review as set out in the Judgment of HHJ Thornton Q.C. handed down on 22 May 2013
IT IS HEREBY ORDERED:-
(a) The Interested Party and/or Defendant do file and serve detailed grounds of defence, if so advised, and any additional evidence upon which the Interested Party and/or Defendant intends to rely by Wednesday 3 July 2013;
(b) The substantive hearing be listed on the first available date after Wednesday 10 July 2013, with a time estimate of 1 day;
(c) The Claimant to file and serve a skeleton argument no later than 14 days before the date of the substantive hearing;
(d) The Interested Party and/or Defendant to file and serve a skeleton argument no later than 7 days before the date of the substantive hearing;
(e) The Claimant to file and serve an agreed trial bundle and agreed bundle of authorities no later than 4 days before the date of the substantive hearing;
Note 1 [2010] 2 WLR 325, SC at paragraph 28. [Back] Note 2 A’s English language skills had clearly developed from the date of her trial in September 2009 where she had an interpreter to the date of her FtT hearing in June 2011 where she gave evidence without an interpreter (see paragraph 42 of the determination). She was also taking literacy learning courses in the English language in 2011 which must also have helped her to improve her English language skills. Her current English language skills were not in evidence. [Back] Note 3 D’s unchallenged evidence summarised in paragraph 34 of the FtT determination in A’s appeal. This evidence is corroborated by the Wikipedia entry for German Nationality Law, which was not cited in argument and whose contents were consistent with D’s reported evidence to the FtT. This entry reported that it has been a prime feature of the German Nationality Law since 2000 that adults and children are entitled to apply for German citizenship after they have been ordinarily resident in Germany for at least 8 years and that dual nationality is not permitted under German law. There was little evidence of A’s current financial circumstances but the court was informed that she was only able to be represented at the hearing by counsel instructed under Public Access funded by some of her friends and church congregation members. [Back] Note 5 It was not clear which two addresses were visited by Redbridge’s officer or officers. [Back] Note 6 She was detained under immigration detention from 23 December 2010 until 13 January 2011 before being released. It is not revealed what the basis was for this period of detention was. [Back] Note 7 [2010] EWCA Crim 1081, 14 May 2010. [Back] Note 8 To the UKBA’s investigating officer during her home visit on 14 August 2012. [Back] Note 9 [1980] 1 WLR 1366), CA(CD). [Back] Note 10 Presumably by the sentencing judge when adjourning the sentencing exercise in order to obtain a pre-sentence report. [Back] Note 11 (2004)/38/EC and SI2006/1003. [Back] Note 12 A decision-maker must take account of the different, and potentially wider, requirement in the CD that A must have been “legally” resident in the UK for a continuous period of five years. On the facts of A’s case, as determined by the FtT, even if A had failed to establish five years continuous residence in accordance with the EEA Regulations, she may well have established that she had been legally resident for that period. [Back] Note 13 [2012] EWCA Civ 1718, CA. [Back] Note 14 [2005] EWCA Civ 597, CA. [Back] Note 15 [2009] EWCA Civ 923, CA. [Back] Note 16 The judgment was quoting from the determination of the tribunal under appeal which in turn was quoting regulation 21(5) of the EEA Regulations. [Back] Note 17 See paragraph 36 above for the text of regulation 21(6). [Back] Note 18 [2006] UKAIT 00053. [Back] Note 19 Per Sullivan LJ. [Back] Note 20 [2011] 2 CMLR 11 at AG 95. [Back] Note 22 At paragraph 50. [Back] Note 23 Three of the statutory grounds on which an appeal must be brought (section 84(1)(c), (d) and (e) of the Nationality, Immigration and Asylum Act 2002. The “very high” formula was identified in paragraph 35 of the judgment of the court in PR(Sri Lanka) [2011] EWCA Civ 988. [Back] Note 24 Regulations 6, 14(1) or 15. [Back] Note 25 If there was a suspicion that this support had been funded from the proceeds of crime, there was no evidence of her having been involved in any other criminal activity and the maximum sum that it was established that she had made from her criminal activity was £1,200 that she received by money transfer which, on her case, had been paid to her to cover air fares and travel expenses. [Back] Note 26 The basis upon which a EU citizen was entitled to reside in a member state in accordance with the CD. [Back] Note 27 CD Article 7(1)(b). [Back] Note 28 EEA Regulations, regulation 21(4)(b). [Back] Note 29 Every Child Matters – Change for Children (2009). [Back] Note 30 See the dicta of Ouseley J in Khan v SSHD [2011] EWHC 2763 (Admin) which stated that the other compelling reason with a high prospect of success should be capable of being set out succinctly and should be set out in the grounds. [Back] Note 31 With effect from 1 October 2012, the period has been reduced to 16 days from the date of dispatch of the upper tribunal decision (see RSC 54.7A). [Back] Note 32 Slightly amended to shorten and clarify the essential grounds being put forward. [Back]