DA001262016

Factual and Procedural Background

The appellant, a citizen of Sierra Leone born in 1980, was notified in August 2015 of the Secretary of State's intention to issue a deportation order on grounds of public policy/public security under the Immigration (European Economic Area) Regulations 2006. Despite representations, the deportation order was made in February 2016, refusing the appellant's human rights claim. The appellant appealed successfully to the First-tier Tribunal in May 2018, but the Secretary of State was granted permission to appeal to the Upper Tribunal.

The appellant has a lengthy criminal record with multiple convictions related primarily to cannabis possession and supply, spanning from 2003 to 2015, including custodial sentences. The First-tier Tribunal had relied heavily on a probation officer’s report assessing the appellant as low risk and expressing remorse, but this report was found to be based on erroneous information as the appellant had continued cannabis use after the report's date. The Upper Tribunal set aside the First-tier Tribunal's decision due to this material error of law and resumed the matter.

The appellant was forcibly recruited as a child soldier in Sierra Leone and diagnosed with PTSD, with a history of cannabis use linked to his trauma. He entered the UK illegally in 2002, claimed asylum which was refused, and subsequently had multiple criminal convictions leading to deportation proceedings. He is married to an EEA national and is the primary carer for their young daughter. He has engaged in counselling and treatment for PTSD and cannabis dependence and has been employed part-time since 2016.

At the resumed hearing, the appellant and his wife gave evidence regarding his rehabilitation, family life, and role as primary carer. Independent expert reports, including from a forensic psychologist, assessed the appellant as presenting a low risk of reoffending and serious harm, noting protective factors such as family support, employment, and engagement with treatment.

Legal Issues Presented

1. Whether the appellant represents a genuine, present, and sufficiently serious threat to public policy or public security to justify deportation under Regulation 21 of the Immigration (European Economic Area) Regulations 2006.
2. Whether the First-tier Tribunal erred in law by relying on outdated probation reports and failing to properly assess the appellant’s rehabilitation and risk of reoffending.
3. Whether the deportation would be proportionate considering the appellant’s personal circumstances, including his length of residence, family life, health, and social integration.
4. Whether removal would be unduly harsh on the appellant’s child, engaging Article 8 of the European Convention on Human Rights and related UK immigration rules.

Arguments of the Parties

Appellant's Arguments

• The appellant is a vulnerable individual with PTSD linked to his past as a child soldier and has used cannabis as self-medication.
• He has demonstrated genuine remorse and commitment to rehabilitation, supported by expert psychological reports and probation assessments.
• He is the primary carer of his young child, and removal would have a severe impact on the child’s welfare and family life.
• The appellant has lived in the UK for approximately 17 years, with established family and social ties, and deportation would be disproportionate and unduly harsh.

Respondent's Arguments

• The appellant has an extensive criminal record involving drug offences, including supply of cannabis, which justifies deportation on grounds of public policy and public security.
• The appellant’s offending continued despite his relationship with his EEA national partner, who had no control over his actions.
• The public interest in dealing with drug dealers is significant, and the appellant poses a risk to society.
• The burden rests on the appellant to show that deportation would be disproportionate and that there are compelling reasons not to deport.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Bouchereau [1997] EUECJ 30-77	Establishes that a threat to public policy can exist without propensity to reoffend.	The court noted the appellant’s offending but the respondent did not rely on Bouchereau, considering the offences not serious enough to establish such a threat.
Kamki [2017] EWCA Civ 1715	Clarifies assessment of seriousness of grounds for deportation and the requirement to evaluate the risk of reoffending.	The court applied Kamki to assess the appellant’s risk and seriousness of threat, concluding the risk was low and serious grounds were not made out.
Orphanopoulos and Oliveri v Verwaltungsgericht Stuttgart [2004] ECR 1999	Confirms that deportation decisions must be based on present threat evidenced by personal conduct.	The court emphasized the need for evidence of a genuine, present threat and found the appellant did not meet this threshold.
Secretary of State for the Home Department and Straszewski [2015] EWCA Civ 1245	Restrictive construction of exceptions to permanent right of residence on public policy grounds.	The court noted that public revulsion is generally irrelevant and that serious grounds must be demonstrated.
Goralczyk [2018] CSIH 60	Explains stringent restrictions on deporting EEA nationals with permanent residence rights and the requirement for serious grounds.	Applied to emphasize the high threshold for deportation of the appellant who had permanent residence and significant family ties.
Arranz [2017] UKUT 294	Confirms burden and standard of proof for establishing threat under Regulation 21(5)(c).	Used to confirm that the Secretary of State must prove the threat on the balance of probabilities, which was not achieved here.
Essa [2013] UKUT 316	Addresses the relevance of rehabilitation and integration in assessing deportation proportionality.	The court considered the appellant’s rehabilitation and integration as substantial factors mitigating deportation.
Secretary of State for the Home Department v Dumliauskas & Ors [2015] EWCA Civ 145	Guidance on assessing prospects of rehabilitation in deportation cases.	The court applied principles requiring assessment of rehabilitation prospects as part of the proportionality analysis.
MC (Essa principles recast) Portugal [2015] UKUT 520	Further guidance on assessing rehabilitation prospects and integration factors.	The court considered family ties, accommodation, and employment as relevant factors supporting rehabilitation.
KO (Nigeria) [2018] UKSC 53	Clarifies the "unduly harsh" threshold for Article 8 claims in deportation cases involving children.	The court applied the elevated "unduly harsh" standard and found removal would be unduly harsh on the appellant’s child.
MK (Sierra Leone) v Secretary of State for the Home Department [2015] UKUT 223 (IAC)	Discusses evaluative assessment of hardship and best interests of the child in deportation cases.	The court referenced this case to emphasize the high threshold for hardship and best interests considerations.

Court's Reasoning and Analysis

The court began by outlining the legal framework under Regulation 21 of the Immigration (European Economic Area) Regulations 2006, requiring serious grounds of public policy or public security to justify deportation of an EEA national with permanent residence. The decision must be proportionate, based exclusively on the individual's personal conduct, and the conduct must represent a genuine, present, and sufficiently serious threat to fundamental societal interests.

The court noted the appellant's extensive criminal history, primarily involving cannabis-related offences, but emphasized the time elapsed since the last conviction in 2015 and the appellant’s engagement with rehabilitation and treatment. The court critically assessed the First-tier Tribunal’s reliance on probation reports that were outdated and did not reflect the appellant’s continued cannabis use at the time.

Independent expert evidence from a forensic psychologist was given significant weight, concluding the appellant presented a low risk of reoffending and serious harm, with protective factors including stable family life, employment, and engagement with mental health services. The court accepted the appellant's vulnerability due to PTSD and the mitigating impact of his rehabilitation efforts.

The court also considered the appellant’s role as primary carer for his young child and the severe impact deportation would have on the child’s welfare, applying the "unduly harsh" standard from relevant case law. It found that removal would cause significant harm to the child, who is a British citizen, and that the appellant’s family life in the UK was well-established and stable.

Balancing these factors, the court concluded that the Secretary of State failed to prove that the appellant posed a genuine, present, and sufficiently serious threat to public policy or security. Furthermore, deportation would be disproportionate given the appellant’s personal circumstances and the best interests of his child.

Holding and Implications

The appeal is ALLOWED.

The court set aside the deportation order made under the Immigration (European Economic Area) Regulations 2006 on human rights grounds. The appellant is permitted to remain in the United Kingdom.

The decision underscores the importance of a holistic and up-to-date assessment of rehabilitation, risk, and proportionality in deportation cases involving EEA nationals with permanent residence. It affirms that prior criminal convictions alone do not suffice to justify deportation without evidence of a current serious threat. The ruling also highlights the significant weight to be given to family life and the best interests of children in such decisions.

This decision does not establish new precedent but applies existing legal principles to the facts of the case, emphasizing careful consideration of vulnerable individuals and their family circumstances in immigration enforcement.