Jean Paul Arsene Garard Monteil v. Secretary of State for the Home Department

Immigration Appeal Tribunal

[1983] Imm AR 149

Hearing Date: 17 November 1983

17 November 1983

Index Terms:

Deportation -- Conducive to the public good -- EEC national -- Criminal record in the United Kingdom -- Whether appellant a "worker" within meaning of EEC law -- Whether appellant's EEC status considered when decision to deport made -- Whether failure to so consider would invalidate the decision -- Whether in all the circumstances including appellant's medical report his deportation would be conducive to the public good on the ground of public policy -- Immigration Act 1971 s 3(5)(b) -- HC 169 para 145.

Held:

The facts are set out in determination. Held: (i) The appellant was a "worker" within the meaning of EEC law and therefore HC 169 paragraph 145 applied. (ii) The decision to deport the appellant was not taken with the appellant's EEC status in mind. However, it did not follow from this finding alone that the appeal should succeed, the issue being whether under the rules applicable to the appellant the Secretary of State was entitled to act as he did. (iii) The evidence did not establish that the deportation of the appellant was justified on the ground of public policy within HC 169 paragraph 145.

Cases referred to in the Judgment:

R v Secretary of State for the Home Department ex parte Santillo [1981] 2 All ER 897 [1981] 2 WLR 362, DC. Giangregorio [1983] Imm AR 104.

Counsel:

K Drabu for the appellant; B Hunter for the respondent PANEL: Professor DC Jackson (Vice-President), T Neil Esq, Dr LP De Souza

Judgment One:

THE TRIBUNAL. The appellant, a citizen of France and therefore an EEC national, appeals to the Tribunal against the decision to make a deportation order against him under the Immigration Act 1971 Section 3(5)(b). Amended grounds of appeal submitted at the hearing read: "(1) The decision of the Secretary of State is in error of law since paragraph 145 of HC 169 has not been considered. (2) The decision of the Secretary of State is bad since he has no powers to deport the appellant save in accordance with situations listed in paragraph 145 of HC 169 and none of those situations apply to the appellant's case." In the Explanatory Statement the Secretary of State summarised the legal framework within which he had taken the decision:

"Having regard to all of his convictions, and having considered all the relevant circumstances, including those listed in paragraph 156 of HC 169, the Secretary of State decided it was conducive to the public good and justified on grounds of public policy to deport the appellant by virtue of section 3(5)(b) of the Immigration Act 1971 and to give directions for his removal to France (HC 169 paras 148, 154, 155, 157, 159 and 169 refer). Notice of this decision was served on the appellant at HM Prison Wormwood Scrubs on 29 April 1983."

The Home Office in a letter dated 20 January 1982 linked the appellant's right to stay with the acquisition of a residence permit and when in 1982 the appellant was seeking work invited him to apply for leave to remain as a visitor. The appellant gave evidence before us. He said that he had not seen his parents for some twenty years and that he did not know his brothers and sisters. He first came to the United Kingdom in June 1979, obtained a job after 15 days and apart from breaks in 1981 and 1982 had worked in various jobs until June 1982. From June 1982 until September 1983 he had been in custody. From 1979-1982 he had never been unemployed voluntarily and when he had been unemployed he had not received any unemployment nor claimed any social security benefit. The appellant's criminal record is not in dispute, and as set out in the Explanatory Statement is: "14 July 1980 -- convicted on two counts of burglary, fined @100 total. 7 February 1981 -- convicted of importuning for an immoral purpose (males), fined @40 and @10 costs. 25 March -- 1981 -- convicted of importuning, fined @25. 20 May 1981 -- convicted of indecent assault on a 14 year old boy, sentenced to six months imprisonment, suspended two years. 3 August 1981 -- convicted of impersonating a police officer, sentenced (following appeal) to @200 fine and @200 costs. 25 November 1981 -- convicted of burglary, two years Probation Order. 1 April 1982 -- convicted of burglary, sentenced deferred. August 1981 -- convicted of indecent assault, sentenced to nine months imprisonment and six months suspended sentence (imposed on 20 May 1981) to run concurrently. 20 January 1983 -- convicted on two counts of burglary and one count of attempted burglary, sentenced to twelve months, nine months and six months imprisonment to run concurrently to one another but consecutively to present sentence." The conviction on 20 January 1983 related to offences committed prior to June 1982. In evidence the appellant said that the root of his criminal activities lay in alcohol abuse and that while in prison (Wormwood Scrubs) he had received treatment through group therapy to combat the abuse. He said that there was no possibility of re-offending. At his request a medical report had been made available to the Home Office and had been taken into account in a review of the case after the initial decision. Mr Hunter agreed that, for the purposes of the appeal, the date of decision must be taken to be a date after the receipt of the medical report. The medical report (by Dr Judith David) was produced by Mr Hunter for the Tribunal and shown to Mr Drabu and indeed Mr Drabu relied heavily on it. The report confirmed the link between the appellant's criminal activities and his alcoholism, stated that the treatment had given the appellant insight into his problems and changed his outlook on life. It emphasised that strong support for the appellant in this country came from a male friend. We also heard evidence from Mr David Griffiths, a Probation Officer, and Mr Conrad Ellis, who is apparently the friend of the appellant referred to in the medical report. Mr Griffiths said that he had known the appellant since July 1981 and following a probation order made in November 1981 had supervised him. Mr Griffiths confirmed the drinking habits of the consequential problems for the appellant prior to 1982. He characterised the appellant as a petty offender influenced by drink and bad judgment. Mr Ellis said that the appellant had lived in his (Mr Ellis') home, apart from the period of custody, for some three and a half years. Since being released from prison the appellant was a vastly improved character and did not have the craving for drink that he once had. It was unlikely that he would offend again. The applicable legal framework The immigration rules relevant to the decision are those set out in HC 169. Rules relating specifically to EEC nationals are set out in Part VI (paragraphs 66-72) relating to control of entry and Part XI (paragraphs 139-147) -- relating to control after entry. Paragraphs 66 and 139 provide that the rules generally applicable to control on or after entry apply to EEC nationals only to the extent permitted by Community law. The Community law relevant to this case is to be found in the Treaty of Rome Art 48 and Council Directives 64/221 and 68/360 all of which concern the freedom of workers within the EEC. If, therefore, the appellant is a "worker" within the meaning of EEC law the general deportation provisions relating will apply only as modified by those provisions applicable to EEC nationals. In any event the protection of directly effective EEC law will override any inconsistent provision of English law. The relevant provisions of Directives 68/360 and 64/221 have direct effect so that individuals may rely on them (see R-v-Secretary of State for the Home Department ex parte Santillo [1981] 2 All ER 897 and the authorites cited in the recent Tribunal case of Giangregorio (2826). [1983] Imm AR 104. Is the appellant a worker? The legal framework established by the Directives (and largely reflected in HC 169) is that an EEC national qualifying within their provisions has a right of residence whether or not a residence permit has been granted. A person may qualify as a worker even though not working on any particular date. The protection extends to potential as well as actual workers and (at least in part) to those involuntarily unemployed (see Giangregorio). We have no doubt that the appellant is a worker so as to attract the protection of the Directives. On the evidence he was never voluntarily unemployed and we do not see his time in custody as of itself terminating the status (compare R-v-Secretary of State for the Home Department ex parte Santillo). Further, his failure to apply for a residence permit did not affect his right of residence (see Giangregorio) and the Home Office, was therefore, wrong in asserting in its letter of 20 January 1982 that without a residence permit the appellant had no basis of stay in the United Kingdom. The law applicable to curtailment of the right of residence (i) Community Law. The rights of residence of EEC nationals stemming from Act 48 of the Treaty and Directives 64/221 and 68/360 are subject to consideration of "public policy, public security and public health". While the applicant remained a worker his right of residence could be curtailed only on one or more of such grounds (Treaty Art 48(3); Directive 68/360 Art 10). In this case it is the ground of public policy which is relevant and Art 3 of Directive 64/221 limits the factors which may be taken into account. The article provides: "ART.3.1. Measures taken on grounds of public policy or of public security shall be based exclusively on the personal conduct of the individual concerned. 3.2 Previous criminal convictions shall not in themselves constitute grounds for the taking of such measures." (ii) Immigration Rules. The power to deport on the basis that deportation is conducive to the public good is contained in Immigration Act, Section 3(5)(b) and the relevant rules setting out applicable factors are set out in HC 169, paragraphs 154, 156 and 159: "154. In considering whether deportation is the right course on the merits, the public interest will be balanced against any compassionate circumstances of the case. While each case will be considered in the light of the particular circumstances, the aim is an exercise of the power of deportation that is consistent and fair as between one person and another, although one case will rarely be identical with another in all material respects. 156. In considering whether to give effect to a recommendation for deportation made by a court on conviction the Secretary of State will take into account every relevant factor known to him, including: Age; length of residence in the United Kingdom; strength of connections with 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; any representations received on the person's behalf. In certain circumstances, particularly in the case of young or first offenders, supervised departure, with a prohibition on re-entry, may be arranged as an alternative to the deportation recommended by the court provided that the person is willing to leave the country. 159. The Secretary of State has the power to deport a person if he deems it conducive to the public good. General rules about the circumstances in which deportation is justified on these grounds cannot be laid down, and each case will be considered carefully in the light of the relevant circumstances known to the Secretary of State including those listed in paragraph 159." However, paragraph 145 procies that an EEC national who has entered employment "may not be deported from the United Kingdom on the ground that removal is conducive to the public good except where this is justified on grounds of public policy, public security or public health". Any implication that that provision is dependent on the holding of a resident permit (see paragraph 140) is contrary to Community law and therefore invalid (see Giangregorio). Of public policy (the ground relevant in this case) the European Court had this to say in R-v-Bouchereau [1981 2 All ER 924 at page 940]:-- "33. In its judgment in Van Duyn v The Home Office (No 2) [1975] 3 All ER 190 at 206, [1965] Ch 358 at 378the court emphasised that the concept of public policy in the context of the Community and where, in particular, it is used as a justification for derogating from the fundamental principle of freedom of movement for workers must be interpreted strictly, so that its scope cannot be determined unilaterally by each member state without being subject to control by the institutions of the Community. 34. Nevertheless, it is stated in the same judgment that the particular circumstances justifying recourse to the concept of public policy may vary from one country to another and from one period to another and it is therefore necessary in this matter to allow the competent national authorities an area of discretion within the limits imposed by the EEC Treaty and the provisions adopted for its implementation. 35. In so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests in society." In the same case the Court gave guidance as to relevance of criminal convictions in the light of the wording of Art 3(2) of Directive 64/221:- "27. The terms of Art 3(2) of the directive, which states that 'previous criminal convictions shall not in themselves constitute grounds for the taking of such measures' must be understood as requiring the national authorities to carry out a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy, which does not necessarily coincide with the appraisals which formed the basis of the criminal conviction. 28. The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy. 29. Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy. 30. It is for the authorities and, where appropriate, for the national courts, to consider that questions 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." Applicability of the law to this case. The approach of the Secretary of State. Mr Drabu argued that the appeal should be allowed as the Secretary of State had never focussed attention on the relevance of the EEC law and therefore the decision to make a deportation order was not in accordance with the Immigration Law and rules. On the evidence of the notice of refusal and explanatory statement we agree that the decision does not seem to have been taken with the appellant's EEC status in mind. We do not think that we can read an evident consciousness of that status into the simple mention of "public policy" in the Explanatory Statement. Particularly is this so (a) since the reference was linked to rules referring to the general power to deport and (b) in the face of a complete lack of reference to the rules relevant to EEC nationals. However, we do not draw the conclusion that it follows from this alone that the appeal should be allowed. The decision to deport may fall within the rule as modified by the provisions applicable to EEC nationals. An EEC national may be deported on the ground that the deportation is not conducive to the public good but with certain limitations. The issue is whether under the rules as applicable to the appellant the Secretary of State was entitled to act as he did. The resolution of that issue entails an examination of the rules as applicable and of Community law, and in particular the meaning of "public policy" in the context of deportation of an EEC nationa. Provided there was power to deport on this ground the decision to make the order depends on factors identical to those applicable to non-EEC nationals. Was the decision justified on "public policy" grounds? Mr Hunter argued that, whether or not the Secretary of State had given his mind to the EEC status of the appellant the decision was justified within the provisions relating to EEC nationals. He cited to us the case of R-v-Secchi [1975] CMLR 393 arguing that the crimes of the appellant in the present case were more serious than those of Secchi -- and Secchi was recommended for deportation. Mr Hunter added that there were no compassionate circumstances or circumstances of age which would tend to weigh against deportation. Mr Drabu contended that we should pay particular attention to the medical report and that we should place in perspective the crimes for which the appellant had been convicted. In considering whether deportation is conducive to the public good we approach the issue on the basis of public policy as defined by the European Court in 1977 in Re-v-Bouchereau. In so doing we must focus on whether the circumstances giving rise to the convictions are evidence of personal conduct constituting a threat to public policy present at the date of the review of the case by the Secretary of State after receipt of the medical report. While is is arguable that on its face the appellant's past conduct suggests such a threat, it would be difficult for the threat to be established without the necessary implication of a propensity to act in the same way in the future. It is in this that we find the critical factor in this case. The medical report is strong evidence that the treatment received by the appellant in Wormwood Scrubs has in all probability wrought a fundamental change, and this is supported by the evidence of Mr Ellis and Mr Griffiths. In passing, this evidence may be compared with that in the Santillo case in which Donaldson LJ pointed to the medical report as indicating a likelihood that the appellant in that case might commit similar offences again. In our view the evidence does not establish that the deportation of the appellant is conducive to the public good on the ground of public policy within the meaning of HC 169, paragraph 145. We do not therefore find it necessary to review the factors listed in paragraph 156 save to point out that the appellant does have a home and support in this country with a good employment record. Our decision however, is based on the failure of the Secretary of State to establish the necessary ground of public policy.

DISPOSITION:

Appeal allowed

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