Secretary of State for the Home Department v George

Factual and Procedural Background

The respondent, hereinafter referred to as the Defendant, is a Belgian citizen who arrived in the United Kingdom at the age of eight and had lived there continuously since 2004. In 2017, at age 21, the Defendant was convicted of manslaughter for his involvement in a gang-related killing and sentenced to 12 years' imprisonment. The Secretary of State decided to deport the Defendant on imperative grounds of public security.

The Defendant appealed to the First-tier Tribunal (Immigration and Asylum Chamber) ("F-tT"), which allowed the appeal. The Secretary of State then appealed to the Upper Tribunal (Immigration and Asylum Chamber) ("UT"), which held that the F-tT erred in law but ultimately dismissed the Secretary of State's appeal after re-making the decision.

The Secretary of State was granted permission to appeal to the Court of Appeal on a legal issue not relied upon in the original decision but later abandoned during the UT hearing. The central question was whether the UT erred in law by not considering this issue.

Legal Issues Presented

1. Whether the Court of Appeal should allow the Secretary of State to argue a point of law that was not relied upon in the original decision and was expressly abandoned in the UT.
2. Whether the UT erred in law by failing to consider the abandoned point of law concerning the applicability of the principle in R v Secretary of State for the Home Department ex p Robinson and the precedent set in R v Bouchereau in the context of imperative grounds of public security.

Arguments of the Parties

Appellant's Arguments

• The appellant (Secretary of State) argued that the Defendant’s involvement in a brutal gang-related killing constituted conduct that alone threatened public policy, justifying deportation regardless of future risk of offending.
• Reliance was placed on the principle from R v Bouchereau that past conduct alone may constitute a present threat to public policy.
• The appellant submitted that the point was in the grounds of appeal to the UT and thus within its jurisdiction to consider, and that the Court of Appeal should exercise discretion to hear the point despite procedural failings.
• It was contended that the seriousness of the offence required removal to maintain public confidence in the authorities’ ability to deport offenders.

Respondent's Arguments

• The respondent (Defendant) argued that the Secretary of State should not be permitted to advance the abandoned ground of appeal.
• The Defendant emphasized that the applicable legal test for removal was "imperative grounds of public security," which is a higher and narrower threshold than "public policy."
• It was submitted that no error of law arose from the UT’s refusal to consider a point expressly abandoned by the Secretary of State in the UT hearing.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Secretary of State for the Home Department ex p Robinson [1997] EWCA Civ 3090; [1998] QB 929	Whether appellate authorities must consider points of law not advanced below if they are obvious and have strong prospects of success.	The court distinguished this principle as limited to refugee law and not applicable to the present case, which concerned deportation on public security grounds.
R v Bouchereau (Case 30/77) [1978] 1 QB 732	Past conduct alone may constitute a present threat to public policy justifying deportation, even without propensity to re-offend.	The court held this principle does not apply to the higher threshold of imperative grounds of public security required for deportation of long-term residents.
Land Baden-Württemburg v Tsakouridis (C-145/09) [2011] 2 CMLR 11	Interpretation of "imperative grounds of public security" as a higher threshold than "serious grounds of public policy or public security".	The court applied this interpretation to confirm the high threshold for deportation in the Defendant’s case.
LG (Italy) v Secretary of State for the Home Department [2008] EWCA Civ 190	Clarification of the hierarchy of protection against deportation under the Regulations.	Reinforced the distinction between serious grounds of public policy/security and imperative grounds of public security.
I v Oberbürgermeisterin der Stadt Remscheid (C-348/09) [2012] QB 799	Consideration of imperative grounds of public security in cases of serious criminal offences with high risk of re-offending.	Referenced to illustrate the types of offences that may meet the imperative grounds threshold.
Robinson (Jamaica) v Secretary of State for the Home Department [2018] EWCA Civ 85; [2018] 4 WLR 81	Application of Bouchereau and the balancing of public interest against individual rights in deportation cases.	Confirmed that Bouchereau remains good law for lower levels of protection but does not apply to imperative grounds of public security.
Secretary of State for the Home Department v Okafor [2024] EWCA Civ 23	Application of serious grounds of public policy and public security test under the Regulations.	Distinguished from the present case as it did not concern imperative grounds of public security.
Mullarkey v Broad [2009] EWCA Civ 2	Procedural rules and the importance of compliance in appellate proceedings.	Relied upon to argue against allowing the appellant to raise the abandoned point.
Shyti v Secretary of State for the Home Department [2023] EWCA Civ 770	Requirement to consider points taken in a decision letter unless expressly abandoned.	Distinguished on the basis that the point in this case was expressly abandoned by the Secretary of State.

Court's Reasoning and Analysis

The Court began by confirming that the UT applied the correct legal test under regulation 27(4) of the Immigration (European Economic Area) Regulations 2016, which requires "imperative grounds of public security" to justify deportation of an EEA national with more than ten years' continuous residence.

The Court distinguished the principle in R v Bouchereau, which applies to a lower threshold of "public policy or public security" under earlier directives and regulations, from the current higher threshold of "imperative grounds of public security." The Court emphasized that "public policy" and "public security" are distinct concepts, with "public security" being narrower and more stringent.

The Court noted that the Secretary of State’s argument relied on a misconception that the principle in Bouchereau could apply to the current imperative grounds test, which it does not. The Court also highlighted that the UT did not err in law by not considering a point that the Secretary of State expressly abandoned at the UT hearing.

Regarding procedural issues, the Court acknowledged the Secretary of State’s poor handling of the case and procedural failings but accepted the decision of Singh LJ to grant permission to appeal on the point of public importance. However, the Court ultimately exercised its discretion to dismiss the appeal on its merits.

The Court further explained that the Secretary of State failed to provide any assessment applying the relevant public security criteria to the facts, which would have been necessary for the Court to consider the issue properly. Without such an assessment, the Court could not substitute its own judgment and would have had to remit the case to the UT.

The Court agreed with the UT’s factual findings that the Defendant posed no genuine, present, and sufficiently serious threat to public security, and that the Defendant’s deportation was not justified on imperative grounds of public security.

Holding and Implications

DISMISSED

The Court dismissed the Secretary of State’s appeal, holding that the UT did not err in law by applying the correct legal test and by not considering the abandoned point of law. The decision confirms the high threshold for deportation of long-term EEA residents under "imperative grounds of public security" and clarifies that the principle from Bouchereau concerning public policy does not extend to this higher threshold.

The ruling underscores the importance of procedural compliance and the necessity for the Secretary of State to provide a clear assessment of facts against the legal criteria in deportation cases. No new precedent was established beyond affirming the existing legal framework and its proper application.