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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v George [2024] EWCA Civ 1192 (14 October 2024) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2024/1192.html Cite as: [2024] EWCA Civ 1192, [2024] WLR(D) 437, [2025] 1 WLR 1025 |
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ON APPEAL FROM THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
UTJ Bruce
DA/00743/2018
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LADY JUSTICE ASPLIN
and
LADY JUSTICE ELISABETH LAING
____________________
SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant |
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- and - |
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WILLIAM GEORGE |
Respondent |
____________________
Sonali Naik KC and Rory O'Ryan (instructed by Turpin Miller Solicitors) for the Respondent
Hearing date: 30 July 2024
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Crown Copyright ©
Lady Justice Elisabeth Laing:
Introduction
The facts
The decision
The legal framework
R v Secretary of State for the Home Department ex p Robinson
The legislative scheme
The cases about the removal of EEA nationals
R v Bouchereau
'1. Measures taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned.
2. Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures'.
LG (Italy) v Secretary of State for the Home Department
1. 'Imperative grounds of public security' is a test which is 'both more stringent and narrower in scope than "serious grounds of public policy or public security"'.
2. 'Public security' is a familiar expression but does not seem to have been defined. There was no reason to equate it with national security. It is a broader concept.
3. 'Imperative' is a high threshold.
Land Baden-Württemburg v Tsakouridis
I v Oberbürgermeisterin der Stadt Remscheid
Robinson (Jamaica) v Secretary of State for the Home Department
Secretary of State for the Home Department v Okafor
The Secretary of State's relevant policy
Determination 1
The grounds of appeal to the UT
Mr George's rule 24 response
The F-tT's grant of permission to appeal
Determination 2
Determination 3
The UT's reasons for refusing permission to appeal to this court
The ground of appeal to this court
The respondent's notice
The submissions
Discussion
1. Should this court allow the Secretary of State to argue this point?
2. Does this court accept that the UT erred in law?
1. Should this court allow this point to be argued?
2. Did the UT err in law in this case?
Conclusion
Lady Justice Asplin:
Lord Justice Underhill:
"5. This case falls firmly within the ECJ judgment of Bouchereau (case 30-77) (1977) 66 Cr App R 202 jurisprudence. This case states at §29:
'29. Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.'
6. The conduct in this case of a brutal killing as a part of gang violence is precisely the type of conduct that alone threatens public policy. The SSHD submits that such cases in and of themselves are so serious as to require the removal from the UK of the perpetrator. This is a matter that has not been considered by the Court of Appeal in relation to unlawful killing."
"… excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action".
He relied in particular on the second limb of the sub-paragraph, namely the need to maintain public confidence in the ability of the authorities to remove (as a shorthand) EEA criminals.
(1) The words "imperative grounds of public security" impose a criterion which is "both more stringent and narrower in scope than the criterion of "serious grounds of public policy and public security" (see para. 32 (1)). To spell it out, the criterion is more stringent because the grounds must be "imperative", which "connotes a very high threshold" (see para. 32 (3)); and it is narrower because the grounds must relate only to "public security", whereas under regulation 27 (3) they may relate also to "public policy".
(2) The difference between the two levels of protection is not merely one of degree but qualitative: "in other words, [regulation 27 (4)] requires, not simply a serious matter of public policy, but an actual risk to public security [my italics], so compelling that it justifies the exceptional course of removing someone who ... has become integrated by many years residence in the host state" (para. 32 (5)).
I respectfully agree with those points, and in my view they afford a complete answer to the ground of appeal advanced by the Secretary of State. In the present case she was obliged to show that Mr George's continuing presence in the UK posed, in Carnwath LJ's words, an "actual risk to public security" – and, what is more, a risk so compelling as to justify the exceptional course of deporting him from a country into which he was now integrated by so many years' residence. The Judge's unchallenged findings establish that he posed no such risk.