BF (Portugal) v Secretary of State for the Home Department

Factual and Procedural Background

This case concerns an appeal against the determination of the Asylum and Immigration Tribunal dated 7 November 2008, which allowed the respondent's appeal against the Secretary of State's decision made on 12 February 2008 to issue a deportation order against the respondent. The respondent is a 31-year-old Portuguese national who arrived in the United Kingdom in 1999. The respondent was convicted in 2005 of battery against his then partner and in 2006 of threatening to kill the same partner, for which he received a 42-month prison sentence. The deportation order followed the latter conviction. It was common ground that the respondent, as a European citizen with permanent residency in the UK, could only be deported on serious grounds of public policy or public security as defined by regulation 21(5) of the Immigration (EEA) Regulations 2006.

The tribunal applied the principles set out in regulation 21(5), which require that a deportation decision based on public policy or security must be proportional, based solely on the individual's personal conduct, that such conduct must represent a genuine, present, and sufficiently serious threat to fundamental societal interests, and that prior convictions alone do not justify deportation. The tribunal also considered the requirement to assess whether the deportation would be disproportionate in all circumstances and engaged Article 8 of the European Convention on Human Rights regarding the right to family and private life.

Legal Issues Presented

1. What constitutes the relevant personal conduct of the respondent for the purposes of deportation under regulation 21(5)?
2. Whether the respondent's conduct represents a genuine, present, and sufficiently serious threat affecting fundamental interests of society.
3. Whether any such threat affects one of the fundamental interests of society.
4. Whether deportation would be a proportionate response to the threat in all the circumstances.
5. Whether deportation would constitute a disproportionate interference with the respondent's rights under Article 8 of the European Convention on Human Rights.

Arguments of the Parties

Appellant's Arguments

• The respondent's counsel submitted that the tribunal's conclusion on proportionality was sufficient to justify allowing the appeal without needing to determine whether there was a genuine, present, and sufficiently serious threat under regulation 21(5)(c).
• It was argued that the proportionality assessment could stand alone, considering relevant risk factors without a prior finding on the existence of a serious threat.

Respondent's Arguments

• The Secretary of State's counsel contended that if the tribunal did address whether there was a genuine, present, and sufficiently serious threat, its reasoning was inadequate.
• The Secretary of State emphasized that the tribunal had detailed evidence, including sentencing remarks and risk assessments, which indicated a high or very high risk of serious harm, but the tribunal failed to clearly conclude on the continuing presence or extent of that threat.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the tribunal's approach to the statutory criteria under regulation 21(5) of the Immigration (EEA) Regulations 2006. It noted that the tribunal correctly identified the relevant legal framework and the questions to be answered regarding personal conduct, the seriousness of the threat, its impact on fundamental societal interests, and proportionality.

However, the court found that the tribunal failed to make an explicit determination on whether the serious threat identified at the time of the respondent's offence persisted at the time of the hearing. Despite referencing detailed risk assessments and sentencing remarks indicating a high or very high risk of serious harm to the respondent's ex-partner and any new partner, the tribunal did not explain why it might have rejected this evidence or concluded that no continuing threat existed.

The court emphasized that it was incumbent on the tribunal to provide a clear conclusion on the existence or absence of a continuing threat under regulation 21(5)(c). Without this, the tribunal could not sensibly assess the proportionality of deportation. The court rejected the appellant's submission that proportionality could be assessed independently of the threat assessment.

Both Lord Justice Patten and Lord Justice Jacob agreed with this analysis, highlighting that merely reciting evidence without addressing the critical statutory question did not satisfy the tribunal's duty to reason its decision properly.

Holding and Implications

APPEAL ALLOWED

The court allowed the Secretary of State's appeal and remitted the case to the tribunal for redetermination with specific instruction to address clearly whether there is a genuine, present, and sufficiently serious threat justifying deportation. The decision directly affects the parties by requiring a reconsideration of the deportation order under the correct legal framework. No new precedent was established beyond reaffirming the necessity of clear findings on the key statutory criteria in deportation cases under the Immigration (EEA) Regulations 2006.