Introduction

The case of Restivo (EEA - Prisoner Transfer) Italy ([2017] Imm AR 188) before the Upper Tribunal (Immigration and Asylum Chamber) on September 9, 2016, revolves around the legal intricacies of deporting an EEA national, Danilo Restivo, to Italy to serve a prison sentence. The central issues pertain to the proper interpretation of the European Framework Decision 2008/909/JHA, the prerequisites for issuing a deportation order, and the application of the European Convention on Human Rights (ECHR) in the context of prisoner transfers.

Summary of the Judgment

The Upper Tribunal set aside the First-tier Tribunal’s decision to allow Restivo's appeal against a deportation order. The key findings of the Upper Tribunal include:

• The First-tier Tribunal erroneously conflated a deportation order with an actual transfer request.
• A deportation order is a mandatory precondition for initiating a transfer request under the European Framework Decision 2008/909/JHA.
• The First-tier Tribunal failed to properly assess whether Restivo posed a genuine, present, and sufficiently serious threat to public policy or security, as required by Regulation 21(5)(c) of the Immigration (EEA) Regulations 2006.
• The Tribunal improperly considered potential breaches of Article 3 of the ECHR based on hypothetical future transfers rather than existing legal processes.

The Upper Tribunal emphasized that the decision to deport is distinct from the transfer process and must adhere strictly to the legal framework established by both national and European laws.

Analysis

Precedents Cited

The judgment references several important legal precedents and frameworks:

• European Framework Decision 2008/909/JHA: This replaced the Council of Europe Convention on the Transfer of Sentenced Persons and outlines the procedures for transferring EEA nationals between member states to serve sentences.
• Directive 2004/38/EC (Citizens Directive): Particularly Article 33(2), which mandates the periodic review of expulsion orders to ensure ongoing compliance with ECHR standards.
• Elashmawy & Riva v Italy [2015] EWHC 28 (Admin) and Badre v Court of Florence, Italy [2014] EWHC 614 (Admin): These cases provided context on the obligations of the SSHD to demonstrate the absence of real risks under Article 3 when considering extradition or deportation.

These precedents collectively influenced the Upper Tribunal's determination that the First-tier Tribunal's decision was legally flawed in its approach and application of existing laws.

Legal Reasoning

The Upper Tribunal's legal reasoning focused on several critical aspects:

• Separation of Deportation and Transfer Decisions: Emphasized that a deportation order is a separate legal action from the transfer request. The First-tier Tribunal incorrectly treated the issuance of a deportation order as dependent on the imminent transfer to Italy.
• Regulatory Compliance: Highlighted that Regulation 21(5)(c) necessitates a clear assessment of the individual's threat level to public policy or security, irrespective of their incarceration status.
• Misapplication of ECHR Articles: Criticized the First-tier Tribunal for evaluating potential future breaches of Article 3 ECHR in the context of a decision (deportation) that had not yet resulted in a transfer.
• Framework Decision Requirements: Asserted that the Framework Decision requires a pre-existing deportation order before considering transfer, ensuring that legal processes are correctly followed.

Impact

This judgment reinforces the necessity for clear legal delineation between deportation orders and transfer requests within the EEA framework. It ensures that deportation orders cannot be prematurely issued based on potential future actions and that each legal step must independently satisfy its own criteria. The decision sets a precedent for future cases, ensuring stricter adherence to legal protocols and safeguarding against arbitrary deportation or transfer decisions.

Complex Concepts Simplified

European Framework Decision 2008/909/JHA

This is a set of rules agreed upon by EEA member states that governs how prisoners can be transferred from one country to another within the EEA. It ensures that legal processes are respected and that the rights of the prisoner are protected during the transfer.

Deportation Order vs. Transfer Request

A deportation order is a legal decision to remove a person from a country, while a transfer request is the subsequent step where another country agrees to accept and imprison the individual so that they can serve their sentence there.

Article 3 of the ECHR

This article prohibits inhuman or degrading treatment. In the context of deportation, it ensures that individuals are not sent to countries where they may face such treatment.

Conclusion

The Upper Tribunal's decision in the Restivo case underscores the critical importance of adhering to established legal frameworks when dealing with prisoner transfers within the EEA. By clarifying that a deportation order must precede any transfer request, the judgment ensures that legal processes are meticulously followed, safeguarding the rights of individuals and upholding the integrity of international agreements. This ruling serves as a vital reference point for future cases, promoting consistency and legal precision in the application of immigration and prisoner transfer laws.