Blurred lines? Deportation of EU citizens under the EEA regulations

Case summary: Secretary of State for the Home Department v Jacek Straszewski and Darius Kersys [2015] EWCA Civ 1245 

[Disclaimer: I am mildly obsessed with cases under the EEA Regulations. This post discusses a recent Court of Appeal decision on the powers that can be used to deport EU citizens from the UK in certain circumstances.]

Outline

The basic question was what factors should the Secretary of State consider when deciding whether to deport an EU citizen who has acquired a right of permanent residence in the UK and who has been convicted of serious crimes?
The case examines the Secretary of State’s power to deport EU citizens, which is governed by regulation 21 of the Immigration (European Economic Area) Regulations 2006, SI 2006/1003 (‘EEA Regulations’). The Court confirms the distinction between EEA and non-EEA deportation cases, and clarifies the extent to which the Secretary of State may consider wider factors such as “public revulsion” and deterrence (both routine considerations in non-EEA deportation cases).

The facts

The Respondents were nationals of Poland and Lithuania respectively, who had acquired the right of permanent residence in the UK, having lived there for over 5 years exercising Treaty rights. They were both convicted of serious criminal offences.

The power to remove an EEA national on public policy grounds is found in regulation 19(3)(b) of the EEA Regulations. It is subject to a number of procedural safeguards in regulation 21. The relevant parts are:

(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.

…

(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.

The Secretary of State argued, rather ambitiously, that public interest factors such as society’s revulsion at serious crimes and the need to deter others should inform its decision-making, equating the position under the EEA Regulations with that under the UK Borders Act 2007 (‘UKBA 2007’). The argument collapses the distinction between two quite separate legal regimes and appears designed to evade the limiting effects of EU law on the Secretary of State’s deportation powers.

Analysis

Lord Justice Moore-Bick gave the judgment of the Court, with which Lord Justice Davis and Lady Justice Sharp agreed. The starting point was the fundamentally different purposes of the EEA Regulations and the UKBA 2007.

The EEA Regulations were designed to implement Directive 2004/38EC (‘the Citizens Directive’), which protects the rights of freedom of movement granted to all EU citizens by the Treaty of the Functioning of the European Union (‘TFEU’).

Picture a set of weighing scales: in the case of an EEA national who is being deported, the scales are heavily loaded in their favour and it is up to the Secretary of State to load the other end of the scales with factors that outweigh the EEA nationals’ Treaty rights to freedom of movement and residence, and justify their deportation.

By contrast, the automatic deportation regime established by section 32 of the UKBA 2007 was constructed to automatically remove non-EEA nationals who have no rights of residence in the UK unless the Secretary of State grants them leave, subject to their rights under the European Convention.

Picture the weighing scales again, but this time the scales are heavily loaded in favour of the Secretary of State, and the burden is on the non-EEA national to show that their deportation would infringe their human rights, for example under Article 8 of the European Convention on Human Rights.

Deterrence & public revulsion

Lord Justice Moore-Bick reviewed the case law of the Court of Justice of the European Union (‘CJEU’) on the extent to which these wider factors could be considered. He concludes that ordinarily, the importance of the right of freedom of movement under EU law renders these factors irrelevant. However, in “exceptional cases” it may be appropriate to take such factors into account. The somewhat extreme example offered at paragraph 31 is where “failure to remove the offender might itself tend to undermine confidence in the state’s ability to administer justice.”

The Court declined to give any detailed guidelines in this highly charged area, preferring to highlight the fact-sensitive nature of such cases. It remains open to the Secretary of State to argue that the offending in question is sufficiently grave as to engage these public interest factors.

Conclusion

It is difficult to see how this proviso is compatible with Article 27(2) of the Citizens Directive (transposed by Regulation 21(5)(b) and (d)). Those provisions effectively prohibit decision-makers from considering public interest issues. The judgment in Straszewski does not attempt to resolve this inconsistency. It re-iterates that any decisions must give effect to the right of freedom of movement and the EEA Regulations and respect the basic EU law principle that any derogations from Treaty rights should be read restrictively.

But in something of a political concession, the Court has carved out an extra-statutory derogation that contradicts these fundamental principles and may, over time, significantly weaken the protective effect of the EEA Regulations.

Last, but by no means least, the Court at paragraph 25 of its judgment stated that so long as all relevant factors have been considered, the Secretary of State’s decision under regulation 21 of the EEA Regulations would only be susceptible to challenge on grounds of perversity or irrationality. While this may appear to raise the threshold for successful challenges, the safeguards in regulation 21 are broad and may continue to provide grounds for impugning decisions that fail to apply all of the provisions appropriately (as was the case for both of the Respondents here).