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DA001262016
Factual and Procedural Background
The Appellant is a citizen of Sierra Leone who was forcibly recruited as a child soldier at age 12 and escaped at 19. Diagnosed with PTSD, he has a history of cannabis use linked to his trauma. He entered the United Kingdom illegally in 2002, claimed asylum which was refused, and subsequently accrued numerous convictions primarily for cannabis-related offences from 2003 to 2015, including multiple custodial sentences. Following a conviction in July 2015 for supplying cannabis and a 15-month sentence, the Secretary of State issued a deportation order on grounds of public policy/public security under the Immigration (European Economic Area) Regulations 2006. The First-tier Tribunal allowed the Appellant’s appeal against deportation in May 2018, but the Secretary of State was granted permission to appeal. The Upper Tribunal found a material error of law in the First-tier Tribunal’s reliance on a probation report that did not account for the Appellant’s cannabis use after the report date, and the matter was reheard.
Legal Issues Presented
- Whether the Appellant represents a genuine, present, and sufficiently serious threat to public policy or public security under Regulation 21 of the Immigration (European Economic Area) Regulations 2006.
- Whether the deportation decision complies with the principles of proportionality and considers all relevant personal circumstances including rehabilitation, family life, and health.
- The appropriate weight to be given to the Appellant’s rehabilitation prospects and integration into the United Kingdom.
- The assessment of the best interests of the Appellant’s child in the context of deportation under Article 8 of the European Convention on Human Rights and the Charter of Fundamental Rights of the European Union.
Arguments of the Parties
Appellant's Arguments
- The Appellant contended that he had ceased offending since 2015 and had engaged in counselling and treatment for PTSD and cannabis dependence.
- He emphasized his role as the primary carer for his young daughter and the supportive family environment, including his wife’s legal training and stable employment.
- The Appellant asserted genuine remorse and a commitment to rehabilitation, supported by expert psychological reports.
- He argued that deportation would be disproportionate given his long residence in the UK, his family ties, and his vulnerability due to PTSD.
Respondent's Arguments
- The Secretary of State highlighted the Appellant’s extensive criminal record, including multiple drug-related offences and custodial sentences.
- It was submitted that the Appellant’s offending demonstrated a disregard for the law and that his wife had not been able to prevent his criminal conduct.
- The Respondent argued that the deportation was justified on serious grounds of public policy/public security due to the nature of the offences.
- However, at the hearing, the Respondent did not rely on the principle that a threat to public policy can exist absent a propensity to reoffend (Bouchereau point), considering the offences not sufficiently serious for that approach.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| R v Bouchereau [1997] EUECJ 30-77 | Whether a threat to public policy can exist without propensity to reoffend. | The Court noted the Respondent ultimately did not rely on this principle, deeming the offences not serious enough to apply it. |
| Kamki [2017] EWCA Civ 1715 | Assessment of serious grounds of public policy/public security and considerations of risk and rehabilitation. | Used to emphasize the requirement for a genuine, present, and sufficiently serious threat and the relevance of rehabilitation. |
| Orphanopoulos and Oliveri v Verwaltungsgericht Stuttgart [2004] ECR 1999 | Requirement that deportation decisions be based on personal conduct representing a genuine, present threat. | Applied to affirm that previous convictions are relevant only to the extent they evidence present threat. |
| Secretary of State for the Home Department and Straszewski [2015] EWCA Civ 1245 | Public policy exceptions to permanent residence rights are to be construed restrictively. | Confirmed that public revulsion is generally irrelevant and that serious grounds must be established for deportation. |
| Goralczyk [2018] CSIH 60 | Stringent restrictions on deportation of EEA nationals with permanent residence and interpretation of “serious grounds.” | Guided the Court’s approach to the seriousness threshold and proportionality in deportation decisions. |
| Arranz [2017] UKUT 294 | Burden and standard of proof for establishing threat under EEA Regulations. | Confirmed the burden rests with the Secretary of State and the standard is balance of probabilities. |
| Essa [2013] UKUT 316 | Role of rehabilitation and integration in assessing deportation risk. | Emphasized that rehabilitation and integration can be substantial factors against deportation where risk is low. |
| Secretary of State for the Home Department v Dumliauskas & Ors [2015] EWCA Civ 145 | Consideration of relative prospects of rehabilitation in host vs origin state. | Used to guide assessment of rehabilitation prospects and their weight in deportation decisions. |
| MC (Essa principles recast) Portugal [2015] UKUT 520 | Guidance on assessing rehabilitation prospects and factors relevant to deportation. | Provided detailed criteria for assessing rehabilitation and integration relevant to proportionality. |
| KO (Nigeria) [2018] UKSC 53 | Interpretation of “unduly harsh” in the context of deportation and children’s best interests. | Applied to establish the elevated threshold for hardship to children in deportation cases. |
| MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC) | Evaluative assessment of hardship threshold for children in deportation cases. | Used to clarify the meaning of “unduly harsh” and best interests considerations. |
Court's Reasoning and Analysis
The Court began by reviewing the statutory framework under Regulation 21 of the Immigration (European Economic Area) Regulations 2006, which requires serious grounds of public policy or public security to justify deportation of persons with permanent residence rights. The Court emphasized that the decision must be based exclusively on the individual’s personal conduct, which must represent a genuine, present, and sufficiently serious threat to fundamental societal interests.
The Appellant’s extensive criminal history, predominantly involving cannabis-related offences, was carefully examined. The Court noted that most convictions were prior to 2009, with two convictions in 2015. The Court acknowledged the Appellant’s history of cannabis use linked to PTSD arising from his traumatic childhood as a child soldier.
Expert psychological evidence, including reports from a Consultant Forensic Psychologist and a psychiatrist, was given significant weight. These reports assessed the Appellant’s current risk of reoffending as low, highlighted his genuine remorse, and confirmed his engagement in treatment and abstinence from cannabis since June 2017. Protective factors such as stable employment, a supportive family environment, and ongoing mental health treatment were considered important mitigating elements.
The Court found that the First-tier Tribunal had erred in placing excessive reliance on a probation report that did not account for the Appellant’s cannabis use after its date. However, the Upper Tribunal’s own assessment, informed by more recent and comprehensive reports, concluded that the Appellant does not pose a genuine, present, and serious threat justifying deportation on public policy grounds.
Turning to proportionality, the Court considered the Appellant’s long residence in the UK (approximately 17 years), his settled family life, and his role as the primary carer for his young daughter. The Court recognized the severe impact deportation would have on the family unit and the Appellant’s mental health, including the risk of suicide if returned to Sierra Leone.
The Court further considered the best interests of the child under Article 24(3) of the Charter of Fundamental Rights of the European Union and Section 55 of the Borders, Citizenship and Immigration Act 2009. It found that removal of the Appellant would be unduly harsh on the child, who is a British citizen and dependent on the Appellant’s care.
In light of these factors, the Court concluded that the Secretary of State had not discharged the burden of proof to establish serious grounds for deportation and that removal would be disproportionate and contrary to the Appellant’s and his child’s rights.
Holding and Implications
The Upper Tribunal allowed the appeal.
The deportation order against the Appellant under the Immigration (European Economic Area) Regulations 2006 was set aside on human rights grounds. The Court held that the Appellant does not represent a genuine, present, and sufficiently serious threat to public policy or public security justifying deportation, and that removal would be disproportionate given his rehabilitation, family circumstances, and mental health vulnerabilities.
The direct effect is that the Appellant is permitted to remain in the United Kingdom, where he can continue treatment and care for his family. No new legal precedent was established; the decision applies the existing legal framework to the specific facts of the case.
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