Hayes v. Secretary of State for the Home Department

HAYES v SECRETARY OF STATE FOR THE HOME DEPARTMENT, TH/79493/81(2100)

Immigration Appeal Tribunal

[1981] Imm AR 123

Hearing Date: 5 August 1981

5 August 1981

Index Terms:

Deportation -- Deportation "conducive to the public good" -- Criminal conduct -- National of Member State of European Economic Community -- Whether as worker in this country his deportation would (on the facts) be contrary to EEC Treaty art 48 and EEC Council Directive 64/221. art 3 -- Propensity to commit serious crimes -- Relevance of previous convictions -- R v Bouchereau (judgment of the CJEC) considered -- Immigration Act 1971, s 3(5)(b) -- HC 394, paras 139, 141, 142, 144.

European Economic Community -- Deportation of national of Member State -- Employed in United Kingdom as labourer -- Series of criminal offences -- Deportation under Immigration Act 1971 as "conducive to the public good" -- Propensity to commit serious crimes -- Whether on facts deportation contrary to principle applicable under EEC Treaty and Council Directive -- R v Bouchereau (judment of the CJEC) considered -- EEC Treaty, art 48 -- EEC Council Directive 64/221, art 3.

Held:

In the case reported below a citizen of the Rupublic of Ireland (25 years of age) had appealed against the decision of the Secretary of State to deport him on the ground that his removal from this country was "conducive to the public good" (under s 3(5)(b) of the Immigration Act 1971). He had committed a series of burglaries in this country and it was found that he was excessively addicted to alcohol. The issue before the Tribunal was whether as a national of a Member of State of the European Economic Community working in the United Kingdom his deportation would be contrary to art 48 of the EEC Treaty and art 3 of the Council Directive EEC. 64/221. The Tribunal, after considering the principles enunciated by the Court of Justice of the European Communities in 1977 in R v Bouchereau n1 (in which those EEC articles were reviewed) n2, and considering also the Secretary of State's discretion under paras 139, 141, 142, and 144 of HC 394 n3, held that the decision to deport the appellant made by the Secretary of State was in accordance with the law and the immigration rules: it was the right course on the merits, and the Secretary of State's discretion should not have been exercised differently in that there were insufficient compassionate factors to outweigh the considerations of public interest which justified the appellant's removal from this country. n1 [1977] 2 CMLR 800; [1978] QB 732; [1981] 2 All E.R. 924. n2 See footnote 4, post. n3 See footnote 5, post. The fact, the relevant compassionate features, and the principles enunciated in R v Bouchereau are set out in the determination and in footnote 4 below.

Counsel:

The appellant appeared in person. D. A. Birks for the respondent. PANEL: A. Hooton Esq (Vice-President), J. H. Bowman Esq, Miss M. F. Hardie

Judgment One:

THE TRIBUNAL: The appellant Denis Anthony Hayes, a citizen of the Rupublic of Ireland aged 25 years, appeals against the decision of the respondent, made on 21 April 1981, to make a deportation order against him by virtue of s 3(5)(b) of the Immigration Act 1971. Notice of the decision served on the appellant reads: "To Denis Anthony Hayes In view of your conviction at Aylesbury Crown Court on 18 July 1980 and your previous convictions here, the Secretary of State deems it conducive to the public good to make a deportation order against you. The Secretary of State has therefore decided to make an order by virtue of section 3(5) of the Immigration Act 1971 requiring you to leave, the United Kingdom and prohibiting you from entering while the order is in force. He proposes to give directions for your removal to Ireland." The appellant appeared in person and gave evidence; Mr D A Birks represented the respondent. The appellant is a single man. He came to the United Kingdom in 1974 and took various labouring jobs. It would seem that he was excessively addicted to alcohol, which addiction has contributed to the commission by him of a series of criminal offences. Amongst his convictions have been a number for burglary. On the 12 February 1980 he was convicted on two counts of burglary and one of theft and given suspended sentences of 6 months' imprisonment on each count, four further offences of burglary being taken into consideration. On 18 July 1980 he was convicted on three counts of burglary and breach of his suspended sentence and was sentenced to two years' imprisonment, five other offences of burglary being taken into consideration. No recommendation for deportation was made by the Crown Court. It is clear to the Tribunal that the appellant has displayed a propensity to commit serious crimes, a propensity which justifies the Secretary of State taking the view that it is conducive to the public good and in accordance with the public interest that the appellant should be deported. In the opinion of the Tribunal this view is in accordance with the principles enunciated by the Court of Justice of the European Communities in 1977 in the case of R v Bouchereau n4, and not contrary thereto as urged by the appellant's solicitors in a letter to the Tribunal dated 20 July 1981. Further the Tribunal does not share the view of the solicitors that "the offences are not very serious". n4 [1981] 2 All E.R. 924; [1978] QB 732; [1977]2 CMLR 800. The defendant Pierre Bouchereau, a French national who was employed in the United Kingdom, had pleaded guilty in a Magistrates' Court to unlawful possession of drugs, and the question arose whether a previous conviction on a similar charge was relevant when consideration was being given to making a recommendation that he be deported. It was submitted for him that as a worker in a Member State of the European Economic Community he was a person to whom art 48 of the EEC Treaty applied and that his deportation (under the Immigration Act 1971, s 6(1)) was precluded by art 3 of EEC Council Directive 64/221. The matter was referred to the Court of Justice of the European Communities for a preliminary ruling under art 177 of the Treaty. In the course of its judgment on 27.10.77 the Court of Justice held, inter alia, that a previous conviction could only be taken into account insofar as the circumstances which gave rise to that conviction were evidence of personal conduct constituting a present threat to the requirements of public policy (art 3(1)(2) of EEC. 64/221); further, that although in general a finding that such a threat existed implied the existence in the individual concerned of a propensity to act in the same way in the future, it was possible that past conduct alone might constitute such a threat to the requirements of public policy; and that it was for the authorities, and where appropriate for the national courts, to consider that question in each individual case in the light of the particular legal position of persons subject to Community Law and of the fundamental nature of the principle of the free movement of persons (art 48(1) & (3) of the EEC Treaty). See [1981] 2 All ER 924 at p 940 (paras 28, 29, 30). Article 48 of the EEC Treaty, so far as material, is set out on p 924 (ibid), and art 3(1) & (2) is set out on p 929. The appellant is thus liable to deportation by virtue of s 3(5)(b) of the 1971 Act. The Secretary of State has nonetheless a discretion in the matter. The considerations he should take into account in exercising this discretion are set out in paragraphs 139, 141, 142 and 144 of HC 394. n5 n5 Paragraph 139 of HC 394 states, inter alia, that "in considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case". Under paras 141 and 142 the Secretary of State is required, when considering "deportation following a conviction", to take into account every relevant factor known to him, including "age, length of residence in the United Kingdom, personal history (including character, conduct and employment record), domestic circumstances, the nature of the offence of which the person was convicted, previous criminal record, compassionate circumstances, (and) any representations received on the person's behalf". Paragraph 144 relates to deportations deemed to be "conducive to the public good" (under the Immigration Act 1971 s 3(5)(b)), and the Secretary of State when considering the matter "carefully in the light of the relevant circumstances known to him" is required also to consider the factors listed in para 141. The appellant told the Tribunal that he had had treatment for his drinking problem and that on release from prison he planned, if not deported, to live with an aunt in London rather than in Aylesbury, where he would get into trouble. He was confident of obtaining employment. The solicitors of the appellant, in their letter to which reference has already been made, point out the appellant's family ties in this country -- two sisters, a brother and two aunts living here. They maintain that his father is coming to this country in June 1981 and is believed to have made a decision to settle here. (The appellant told us that he did not know if his father was here or not.) In the opinion of the Tribunal, having taken into account all the relevant facts, deportation is the right course on the merits. There are insufficient compassionate features to outweigh the considerations of the public interest which justify the appellant's removal from this country. In our judgment the Secretary of State's decision was in accordance with the law and the immigration rules and his discretion should not have been exercised differently.

DISPOSITION:

Appeal dismissed.

SOLICITORS:

Horwood & James, Aylesbury.

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