Puttick Orse Proll v. Secretary of State for the Home Department

Puttick -- orse Proll v Secretary of State for the Home Department

Immigration Appeal Tribunal

[1984] Imm AR 118

Hearing Date: 9 August 1984

9 August 1984

Index Terms:

EEC national -- Refusal of letter of consent to enter United Kingdom -- Grounds for refusal (1) appellant's past conduct and associations and (2) her present threat to public policy arising from such past conduct and associations -- Whether appellant had right of appeal against the refusal -- Whether adjudicator and Tribunal had jurisdiction to hear such an appeal -- Whether appellant's conduct adversely affected a fundamental interest of United Kingdom society -- The factors required for past conduct to become a present threat -- Immigration Act 1971 ss 13(1)(2), 14(1), 20(1) -- Treaty of Rome art 48(3) reg 1612/68 -- Directive 64/221 art 3 -- Directive 68/360 art 10 -- HC 394 para 76(b).


The facts are set out in the determination. Held: (i) A "worker" within the meaning of EEC law refused entry either at a port or through refusal of entry clearance had a right of appeal under the Immigration Act 1971 s 13(1) or s 13(2) as appropriate. (ii) Refusal of entry of an EEC worker on grounds of "public policy" required the Secretary of State to establish on the balance of probabilities that the individual's conduct formed a present threat to public policy. (iii) Conduct outside the United Kingdom might be held to affect adversely a fundamental interest of the United Kingdom on the basis that similar acts might be done in the United Kingdom. (iv) Refusal might be justified on past conduct if there was a risk either that the conduct of itself created a present threat or that the individual would act in the present in such a way; and once the risk was established it was for the individual to adduce evidence to rebut it. (v) Applying the principles set out in (i)-(iv) it was justifiable to refuse entry to the appellant.

Cases referred to in the Judgment:

R v Pieck [1981] 3 All ER 46, CJEC. Lubbersen v The Secretary of State for the Home Department [1984] Imm AR 56, IAT. R v Bouchereau [1981] 2 All ER 924, CJEC. Rutili v Minister of the Interior [1976] 1 CMLR 140, CJEC.


L Grant of Seifert Sedley & Co for the appellant; C Hedges for the respondent PANEL: Professor DC Jackson (Vice-President), GW Farmer Esq, (Vice-President), Major RAK MacAllan

Judgment One:

THE TRIBUNAL: The appellant, a citizen of the Federal Republic of Germany, appeals against a decision of an adjudicator (Mr TD Healy) against the refusal of a letter of consent to enable her to enter the United Kingdom. The evidence The factual background is largely agreed. The evidence is wholly documentary consisting of the explanatory statement, a copy of the judgment of a Landegericht -- a Superior Court of the Federal Republic of Germany -- in 1980 in criminal proceedings against the appellant, letters written in 1983 from Mr Thomas Mitscherlich (a film director) Dr Jorg Bopp (a psychotherapist) and Mr H Jacobi and two extracts from newspapers (The Morning Star and the Guardian) of 20 June 1979. The letters testify to the appellant's social responsibility, self-critical attitude, her ability as a gifted and spirited student, her efforts to find work and her goal of stabilising her future life. The press extracts report a statement made by the appellant through her solicitors in June 1979 in which she said that she had renounced her former association with the Red Army Faction the West German urban guerilla group, that she had not had contact with any similar political groups since her release from prison in 1974 and that it was now up to the authorities to offer solutions to her other than revenge and punishment. The article in the Morning Star continues:

"Referring to West German offers of a potential "way back" for those who had been involved in arms struggle and had undergone a change of heart she said: "I have not changed my heart I have changed my life"."

The extract in the Guardian is to like effect. No witnesses were called before the adjudicator and no witnesses were called before us. No evidence was submitted from the appellant. Our attention was drawn to the judgment of the President of the Family Division in Puttick v Attorney General 1979 3 All ER 463 in which a declaration of the validity of the appellant's marriage to Robin Puttick was refused. The background facts The facts, which as we say do not appear to be in dispute, are fully set out in the explanatory statement. The relevant parts of the statement are set out in the adjudicator's determination. Much of the factual description is taken directly from the judgment of the Landegericht given in February 1980 when pronouncing its verdict and sentence in the case against the appellant for attempted murder, armed robbery and forgery arising out of her activities as a member of the Baader-Meinhof gang in 1969, 1970 and 1971. The appellant was a founder member of the Baader-Meinhof gang; the aim of the gang being to change the social order of the Federal Republic of Germany by armed force. The German Court summed up the beliefs and tactics of the group: "The aim of the group was to change the social order of the Federal Republic of Germany by armed force. The structure, equipment and activities of the group were based on the principles developed by Carlos Marighella in his "Mini-handbook for the Urban Guerilla" for the Brazilian guerilla struggle. All members (of the group) were advised to read the book and to adopt its principles. Marighella demanded the "relentless war" against the "ruling classes" and mentioned as examples for the urban guerilla's field of action -- among others -- bank robberies, attacks on police stations as well as the liberation of captured guerilla fighters. The main point of effort of the gang's activities besides bank robberies were to be the theft and fraudulent hiring of cars in order "to hit the capitalist system in a delicate place" and to simultaneously provide the necessary financial means for their living and other actions of the group such as the purchase of arms and ammunition. The group members followed Marighella's instructions up to the details of arming. According to his advice they were, as a rule, armed with loaded weapons which they were supposed to use, at any rate, in the case of imminent arrest in order to escape. For this purpose they trained with firearms in remote forest areas. For their lives underground the gang members acquired forged papers and code names. Thus, for instance, the Defendant was called Rosi while Mahler was called James and Karl-Heinz Ruhland Kalle. It was clear to all group members that their arms forced them into living underground, and they were aware that they constantly had to commit offences. In particular, all members, the Defendant included, agreed from the beginning to jointly commit thefts and robberies in order to provide the group with vehicles and money, for which purpose they thought of bank robberies as a means to provide money from the start." The findings of the German Court were that in August 1970 members of the group split in units and carried out a series of armed bank robberies in Berlin. The robberies yielded DM 215,000. The appellant knew arms were to be used. She drove one of the cars used to make the escape of one of the units. The forgery charges related to the use of a forged identity card and passport to conceal her identity from the authorities. The attempted murder charge arose out of events on which the second forgery charge was based and which in turn resulted from surveillance by Secret Service Agents of a flat in Frankfurt used as a gang base. On 10 February 1971 the Agents identified the appellant and another member of the gang and after a car chase asked to see their papers. It was at this stage that the appellant produced the false passport and, on the Agent recognising her, her companion pulled out a pistol and fired at the Agents. Both the appellant and her companion escaped. The appellant was later charged with having handled a gun and having shot at the Agents. The appellant was acquitted of attempted murder. For the offences of armed robbery she was sentenced to five and a half years imprisonment and for the offences of forgery she was fined. When assessing punishment for the robbery the German Court stressed the amount stolen, the planned use of arms and the co-ordinated nature of the operation. It continued:

"It increased the punishment in that the Defendant intended to contribute to the financing by the crime of a group who had set themselves the aim to destroy the basis of peaceful coexistence and to overthrow the constitutional order. Though the group did not present a serious threat to the existence of the state and its liberal constitution, due to its ruthlessness, it was very dangerous for the interest of individuals."

Against this the Court balanced the appellant's conduct in England between 1974 and 1979 in that she did not have a connection with terrorists circles and involved herself with a social cause. The Court found the decisive reason for a minimum sentence in the fact that the appellant could be expected to lead of life without crime. It continued:

"In favour of the Defendant the Court started from the assumption that she parted with the concept of urban guerilla and does not advocate it any more. Though she explicitly refused to renounce her past no conclusion to the contrary could be made. The Defendant does not only not have any more connections with terrorist circles but she also displayed agreement in the main trial with witness Mahler who -- as is generally known -- has renounced terrorism in acting and writing. That she passionately embraced witness Grashof who is still bound to his ideology may be due to personal affection. The Defendant, at any rate, did not leave any doubts about the fact that she will not commit any more crimes."

The sentence of five and a half years imprisonment was reduced, on appeal, to five years. The facts in relation to the period between 1971 and the appellant's trial in 1979 can be drawn partly from the proceedings relating to a petition brought by the appellant for a declaration that her marriage in 1975 to Robin Puttick was a valid marriage. From the judgment the following facts emerge. The appellant was arrested in Germany in May 1971. Her trial began in September 1973 but on 4 February 1974 it was adjourned because of her ill-health. The appellant was granted bail. After some six weeks she left Germany, went to Italy and obtained a passport into which her photograph was inserted. On 6 August 1974 she came to England using the name of Senta Gretel Sauerbier. She did not work. On 22 January 1975, giving false details of name and residence, she went through a ceremony of marriage with Robin Puttick with, as the President found, the "sole purpose" of being able to remain in the United Kingdom. The marriage as a relationship was short-lived and in 1975 or 1976 Robin Puttick went to India. The appellant applied for British Nationality based on the identity and details already manufactured but withdrew the application as she thought the Home Office might contact the German authorities. During the period 1975 to 1978 the appellant obtained work. The explanatory statement (paragraph 11) sets out her record in this respect:

"Following her marriage the appellant obtained employment, first as a gardener with Hackney Borough Council, then as a fitter's mate at Lesney's factory in East London, and in 1976 entrolled on a government training course in car mechanics at Poplar Skill Centre. She left the course with a City and Guilds Certificate and, having taken an evening class in welding, found employment at the North London Vehicle Repair Shop supervising youngsters employed there as part of the Government Youth Opportunities Programme. She had obtained all the necessary qualifications; national insurance card, union card and driving licence in the name of Senta Puttick."

In 1978 the appellant was arrested in England. Proceedings for her extradition to Germany were adjourned pending the hearing of the petition for the declaration of a valid marriage. In these proceedings the President refused to make the declaration; first because, as he found, the appellant had not acquired a domicile in England and therefore the statutory basis for granting the declaration was missing. The further ground was that the Court's statutory jurisdiction in respect of the appellant's application was to make such a decree as the Court "thinks just". The President said that this conferred the power not to grant a decree and he concluded: "It is unnecessary for me to repeat the Attorney-General's catalogue of evils which could flow from the grant of this application. The applicant admits offences under s 3 of the Perjury Act, by reason of what happened at the ceremony and by the description in the certificate. These offences carry a penalty of up to seven year's imprisonment. They are serious. She agrees that she attempted to obtain a certificate of naturalisation by deception. These are false statements contrary to s 28 of the British Nationality Act, 1948. There is the forged passport, and offences under the Forgery Act in respect of the use of that passport. She obtained entry by an offence against s 24(1)(a) of the Immigration Act, 1971. She obtained a driving licence by deception. I do not think it would be just -- indeed, in my opinion it would be utterly unjust -- to grant a decree, even if she had proved an English domicile, which she has not. Perhaps I am back where I began, with the maxim which I can now express as: "No woman can take advantage of her own wrong". This court should not and cannot further the criminal acts of this applicant and permit her to achieve an end by the course of conduct which she has pursued. The petition fails and is dismissed." After the refusal of the declaration, on 23 June 1979, the appellant returned voluntarily to Germany to face the trial, the results of which we have summarised. The relevance of EEC law and the appellant's status as an EEC national and as a worker 1. Jurisdiction At the outset of the proceedings before us Mr Grant raised the question of the Tribunal's jurisdiction. The matter did not appear to have been raised before the adjudicator. We heard argument and ruled that the adjudicator and the Tribunal did have jurisdiction. As our Ruling has general relevance to cases involving EEC nationals who are workers, with the consent of the parties we incorporate it into this determination. The appellant is a citizen of the Federal Republic of Germany and therefore an EEC national. The Explanatory Statement records that on 31 March 1980 the appellant was refused leave to enter the United Kingdom. The place of the refusal is not specified but it was clearly at a United Kingdom port. On 6 June 1980 Seifert, Sedley and Co applied for an "entry clearance" for the appellant, the application being made "to avoid further difficulties at the port of entry. On 14 May 1981 the application was refused on Form APP 108 the refusal reading in substance: Form APP 108


Refusal to Entry Clearance To ANNA PUTTICK Messrs Seifert Sedley and Company have applied on your behalf for a Letter of Consent to enable you to enter the United Kingdom to seek employment but you have been convicted of armed robbery committed in the pursuit of Terrorism and the Secretary of State is not prepared to agree to your admission on account of your conduct and associations. The Secretary of State therefore refused the application." The statutory jurisdicational framework The jurisdiction of the Tribunal is so far as it concerns (i) refusal of entry or entry clearance; (ii) variation or refusal to vary leave, depends first on the Immigration Act 1971 s 20(1) which reads:

"20(1) Subject to any requirement of rules of procedure as to leave to appeal, any party to an appeal to an adjudicator may, if dissatisfied with his determination thereon, appeal to the Appeal Tribunal, and the Tribunal may affirm the determination or make any other determination which could have been made by the adjudicator."

It follows that the jurisdiction of the Tribunal cannot exceed that of the adjudicator. The jurisdiction of adjudicators is set out in ss 13(1)(2), 14(1): "13(1) Subject to the provisions of this Part of this Act, a person who is refused leave to enter the United Kingdom under this Act may appeal to an adjudicator against the decision that he requires leave or against the refusal. (2) Subject to the provisions of this Part of this Act, a person who, on an application duly made, is refused a certificate of patriality or an entry clearance may appeal to an adjudicator against the refusal. 14(1) Subject to the provisions of this Part of this Act, a person who has a limited leave under this Act to enter or remain in the United Kingdom may appeal to an adjudicator against any variation of the leave (whether as regards duration or conditions), or against any refusal to vary it . . ." "Entry clearance" is defined in s 33(1)

""entry clearance" means a visa, entry certificate or other document which, in accordance with the immigration rules, is to be taken as evidence of a person's eligibility, though not patrial, for entry into the United Kingdom (but does not include a work permit)"

The relevance of EEC law Whether the Tribunal has jurisdiction in this appeal must be decided bearing in mind that the appellant is entitled to the protection and benefits of EEC law concerning the freedom of movement of workers. It is established by the European Court decision in R v Pieck [1981] 3 All ER 46 that a member state has no power to grant leave at the port of entry which leave is inconsistent with the right of a worker to enter that state. In particular a state may not grant a worker leave to enter for a limited period. In Lubbersen (3131) the Tribunal considered whether despite the inability to impose on entry a time limit on leave to enter, an EEC entrant had "limited leave" within the Immigration Act 1971 s 14(1) so as to allow an appeal from the refusal of a residence permit. Taking a different view to the earlier Tribunal decision in Corinaldesi (2957) the Tribunal held that while the Secretary of State had no power to impose a time limit at the port of entry the entrant nevertheless had limited leave. The entrant was admitted under HC 169 (rules made under the Act). Those rules limited the leave until after four years residence and employment indefinite leave is granted and the limits are consistent with EEC law. As to R v Pieck the Tribunal said:

"In our view therefore the decision in R v Pieck prohibits the imposition of any condition (including a time limit) on entry of an EEC national. It does not prohibit (and indeed implies the necessity for) a limitation on the stay of an EEC national so as to test the qualifications for the right of residence on which reliance for the stay is placed."

The question now raised is whether the prohibition on imposition of conditions on entry means that "entry clearance" (or perhaps even refusal of leave to enter) has any meaning in respect of EEC nationals seeking entry as workers. In R v Pieck the Court was concerned with the purported granting of leave to enter for a limited period to an EEC national who was a worker. The Court held that the right of entry of such a person was a right which stemmed from the Treaty of Rome Art 48, Regulation 1612/68 and Directives 64/221 and 68/360. Art 48 of the Treaty and Regulation 1612/68 provides for the principle of freedom of movement of workers. In R v Pieck the Court said of Directive 68/360 and its effect on entry requirements: "5. The aim of Directive 68/360, as the recitals in the preamble thereto show, is to adopt measures for the abolition of restrictions which still exist concerning movement and residence within the Community, which conform to the right and privileges accorded to nationals of member states by EEC Council Regulation 1612/68 in freedom of movement for workers within the Community. To this end the directive lays down the conditions on which nationals of member states may exercise their right to leave their state of origin to take up activities as employed persons in the territory of another member state and their right to enter the territory of that state and reside there. 6. In this connection art 3(1) of the directive provides that member states shall allow the persons to whom Regulation 1612/68 applies to enter their territory on production of a valid identity card or passport. Article 3(2) contains the further provision that no entry visa or equivalent requirement may be demanded from these workers. 7. In the course of the procedure before the court the United Kingdom government maintained that the phrase "entry visa" means exclusively a documentary clearance issued before the traveller arrives at the frontier in the form of an indorsement on his passport or of a separate document. On the contrary an indorsement stamped on a passport at the time of arrival giving leave to enter the territory may not be regarded as an entry visa or equivalent document. 8. This argument cannot be upheld. For the purpose of applying the directive, the object of which is to abolish restrictions on movement and residence for Community workers within the Community, the time at which clerance to enter the territory of a member state has been given and indicated on a passport or by another document is immaterial. Furthermore the right of Community workers to enter the territory of a member state which Community law confers may not be made subject to the issue of a clearance to this effect by the authorities of that member state." The Court continued:

"9. Admittedly the right of entry for the workers in question is not unlimited. Nevertheless the only restriction which art 48 of the Treaty lays down concerning freedom of movement in the territory of member states is that of limitations justified on grounds of public policy, public security or public health. This restriction must be regarded not as a condition precedent to the acquisition of the right of entry and residence but as providing the possibility, in individual cases where there is sufficient justification, of imposing restrictions on the exercise of a right derived directly from the Treaty. It does not therefore justify administrative measures requiring in a general way formalities at the frontier other than simply the production of a valid identity card or passport."

The restriction written in Art 48 is reflected in Directive 68/360 Art 10 which reads: Article 10

"Member States shall not derogate from the provisions of this Directive save on grounds of public policy, public security or public health."

In R v Pieck therefore the Court recognised that restrictions on entry may be imposed on the right of entry conferred by the Treaty. It seems to us to be clear from the context of that recognition that those restrictions may be imposed on entry. Indeed this follows from their expression as restrictions on the right of entry, a right which may not be impeded by the imposition of other conditions. The applicable rules (HC 394), the Immigration Act 1971 and EEC law The rules applicable to the appellant's application are HC 394. It has to be said that these rules do not fit as easily into the EEC legal framework as those set out in HC 169. Nevertheless provided a rule is consistent with EEC obligations it is valid and any action taken in reliance on it is taken under the rules and therefore under the Immigration Act 1971. The grounds of the decision in this case The application for "entry clearance" was refused in words taken from HC 394 paragraph 76(b), ie on account of the appellant's "conduct and associations". In the explanatory statement (paragraph 17) it is said that:

". . . in the light of the appellant's conduct and association, the Secretary of State concluded that her admission would be contrary to the requirements of public policy and refused the application on 14 May 1981. (HC 394 para 76 refers)."

The refusal was therefore based on an immigration rule made under the Immigration Act 1971, that rule being valid in so far as EEC law permits exclusion on the grounds within the rule. If therefore the appellant had been refused entry to the United Kingdom (as she was on 31 March 1980) it seems to us that she would have been "refused leave to enter" the United Kingdom under the Immigration Act 1971 and a right of appeal under s 13(1). It would be incongruous if because of the precautions taken to avoid difficulties at the point of entry the appellant sacrificed her right of appeal. Happily we are of the view that an EEC national who is refused a letter of consent does have a right of appeal under s 13(2). For the purposes of this provision "entry clearance" includes a document which in accordance with the immigration rule is to be taken as evidence of a person's eligibility for entry. Mr Hedges drew our attention to HC 394, paragraph 10, which so far as relevant reads:

"Any other foreign national who wishes to ascertain in advance whether he is eligible for admission to the United Kingdom can apply to the entry clearance officer in the country in which he is living for the issue of a visa or a Home Office letter of consent; or application for a Home Office letter of consent may be made to the Home Office on his behalf by someone in the United Kingdom. This procedure is of particular value when the claim to admission depends on proof of facts entailing enquiries in this country or overseas."

Clearly therefore, apart from any EEC connotation, the letter of consent is an "entry clearance" within the Immigration Act s 13(2). Under EEC law in the case of an EEC entrant the Secretary of State may on entry consider the ground of public policy in an individual case and refuse entry on the ground (see R v Pieck cited above). "Public policy" as defined in R v Bouchereau and considered by the Tribunal in Monteil (2935) and Klus (3153) clearly encompasses the grounds on which the Secretary of State relied in this case. The issue is whether the exclusion was justified and it is an issue of "public policy" within EEC law. The Secretary of State acted not under EEC law but under HC 394, paragraph 76(b), and therefore refused the application in the context of the domestic legal frame-work of the Immigration Act 1971 and the Immigration Rules. As we have said the power to refuse such an application in the case of an EEC entrant is consistent with EEC law if the ground of refusal is "public policy" within the meaning of EEC law. In this case the refusal was under the Act and Rules and was on a ground recognised by EEC law. The letter of consent therefore was evidence of the appellant's eligibility under the Immigration Act 1971 and the appellant has a right of appeal from the refusal under s 13(2). We should say that while we see our decision as consistent with the approach of the Tribunal in Lubbersen in setting the Act into the EEC legal framework it does not depend on it. Even if an EEC entrant could be said not to have "limited leave" within the Immigration Act s 14(1), the entrant may have "leave" in the sense that admission so far as English law is concerned is under the Immigration Rules although the right to enter is founded on EEC law. It would follow that an appeal would lie under s 13(1) for refusal of leave to enter. Further even if it could not be said that an EEC entrant enter with leave under the Immigration Act, a refusal of entry may still be the basis of an appeal under s 13(1) on the basis that leave is not required. Where, as here, prior to entry a person applies for an entry clearance, it seems to us the appeal under 13(2) from a refusal does not depend on whether the eligibility on which the application was based was said to be under the Act or under EEC law. By s 33(1) an entry clearance is a document which in accordance with the rules is evidence of eligibility (ie as provided in HC 394, paragraph 10) rather than a document related to eligibility under the rules. It follows that whether the root of the alleged eligibility of entry and any limitation on it be the rules or EEC law, the letter of consent is evidence of it and a refusal of such a letter may found an appeal under s 13(2). We hold that in this case the adjudicator had jurisdiction to hear the appeal under the Immigration Act s 13(2) and that the Tribunal has therefore jurisdiction to hear an appeal from the adjudicator's decision. 2. The grounds of exclusion According to the explanatory statement (paragraph 17) the Secretary of State purported to act under HC 394 paragraph 76. This paragraph reads: "76. Any passenger except the wife and child under 18 of a person settled in the United Kingdom may be refused leave to enter on the ground that his exclusion is conducive to the public good, where (a) the Secretary of State has personally so directed, or (b) from information available to the Immigration Officer it seems right to refuse leave to enter on that ground -- if, for example, in the light of the passenger's character, conduct or associations it is undesirable to give him leave to enter." As we have said in the context of jurisdiction HC 394 is not drafted as clearly as HC 169 so as to fit with the EEC law. In HC 394 Part IV, dealing with the entry of EEC nationals, contains no reference to refusal of leave to enter and specifically relates only to Parts I to IV of the Rules. Part VII deals with the refusal of leave to enter and makes no distinction between EEC and non-EEC nationals. In HC 169 Part VI, dealing with the entry of EEC nationals, is not limited to parts dealing with entitlement to enter but specifically provides that all "on entry" rules apply to EEC nationals only to the extent permitted by Community law. Further, paragraph 69 provides that a person entitled to be admitted under the rules applicable to EEC nationals "may be refused admission only if exclusion is conducive to the public good on grounds of public policy, public security or public health". In this case the explanatory statement makes no express reference to the relevance of EEC law. Yet it is agreed that the appellant is a person entitled to the protection and benefits of EEC law as a worker. Further, Mr Hedges assured us that the Secretary of State had considered the matter in the EEC context and indeed paragraph 17 of the explanatory statement states that:

". . . in the light of the appellant's conduct and association the Secretary of State concluded that her admission would be contrary to the requirements of public policy."

We appreciate the explanatory statement was drawn up prior to recent exhortations by the Tribunal that in an EEC case the Secretary of State should clearly indicate that consideration has been given to any applicable part of the EEC legal framework. Mr Hedges valiantly sought to persuade us that this was a legal matter left to Presenting Officers but an explanatory statement has purpose only if seen to be addressed to facts in the context of the legal rules applicable to the case. We urge that where an individual can claim rights dependent on EEC law the Secretary of State should be seen to have explicitly considered them. Since HC 169 came into force it is to be hoped that EEC law and the Immigration Rules will normally coincide, and therefore consideration of rights under one will necessarily be consideration under the other. Nevertheless, failure to make it clear that EEC rights have been taken into account may necessarily mean delay and increase in cost. In this case both Mr Grant and Mr Hedges agree that the Tribunal should consider the merits and that it could be implied from the language of the explanatory statement that the Secretary of State had addressed his mind to EEC law. We agree. The phrase "the requirements of public policy" used in the explanatory statement is a phrase which has clear EEC connotation and the Secretary of State appears to have been applying that concept. However, we reiterate that expression is preferable to implication. The relevant EEC law In considering the entry or restriction of residents on EEC nationals who are workers any Court or Tribunal must start with the principle of freedom of movement enshrined in Article 48 of the Treaty, Regulation 1612/68 and Directives 68/360 and 64/221. Article 48(3) of the Treaty of Rome makes such freedom of movement "subject to limitations justified on grounds of public policy". The concept of public policy is not defined in the Treaty, Regulations or Directives but Article 10 of Directive 68/360 reiterates the ground as one of three on which the right of residence may be curtailed. Article 3 of Directive 64/221 deals with the relevance of criminal convictions to public policy providing: (1) measures taken on grounds of public policy or public security shall be based exclusively on the personal conduct of the individual concerned. (2) previous criminal convictions shall not in themselves constitute grounds for the taking of such measures. It is apparent therefore -- and was agreed -- that the issue in this case is whether, within the meaning of "public policy" as a concept of EEC law, the Secretary of State was justified in refusing entry to the appellant. Mr Grant and Mr Hedges took us through a number of decisions of the European Court dealing with the concept of public policy. The most directly relevant is that of R v Bouchereau [1981] 2 All ER 924. Before coming to that we should refer briefly to others mentioned. In Rutili v Minister of the Interior [1976] 1 CMLR 140 the Court was concerned with the right of a member state to restrict the movement of the national of another member state on the grounds of public policy. The Court emphasised that the scope of public policy could not be determined unilaterally by member states saying:

". . . restrictions cannot be imposed on the right of a national of any member state to enter the territory of another member state, to stay there and to move within it unless his presence or conduct constitutes a genuine and sufficiently serious threat to public policy."

In Bonsginore v Oberstadtdirektor of the City of Cologne [1975] 1 CMLR 472 the Court, construing Article 3 of Directive 64/221, stressed that deportation must be based on the personal conduct of the person concerned and could not be "for the purpose of deterring other aliens". In Van Duyn v The Home Office [1975] 3 All ER at page 20 the Court referred to the ability of individuals to rely on the obligations imposed on Member States and the need to interpret the concept of public policy strictly. At the same time it accepted that Member States had "an area of discretion" within the limits imposed by the Treaty. It is, however, the Court's interpretation in R v Bouchereau of the concept of public policy as a limiting factor on freedom of movement of workers that provides the guidelines for us in this case. In the case of Bouchereau the European Court was concerned with the deportation from the United Kingdom of a French national following conviction for a drugs offence. Although the facts are far removed from the present case the principles adumbrated are directly applicable. Of the public policy limitation the Court said:

"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 of society."

Of the relevance of criminal convictions the court said: "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 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." The adjudicator's approach The adjudicator, having been referred to the authorities cited to us, approached the case on the basis that there were alternative possible grounds of exclusion -- first the appellant's past conduct and secondly her conduct and associations if amounting to a present threat to public policy. As to the former, the adjudicator said: "First of all I am satisfied that the decision was based on that past conduct and not on the appellant's convictions alone and that in the process of consideration there was a specific and independent appraisal of the interests of protecting the requirements of public policy. That is clear from the explanatory statement. I adopt, with respect, that part of the opinion of the Advocate General set out in Bouchereau's Case, which reads:-

". . . Cases do arise, exceptionally, where the personal conduct of an alien has been such that whilst not necessarily evincing any clear propensity on his part, it has caused such a deep revulsion that public policy requires his departure. I agree. I think that in such a case a member state may exclude a national of another member state from its territory, just as a man may exclude from his house a guest, even a relative, who has behaved in an excessively offensive fashion. Although therefore, in the nature of things, the conduct of a person relevant for the purposes of article 3 will generally be conduct that shows him to have a particular propensity, it cannot be said that that must necessarily be so."

On that test I am satisfied the appellant's conduct as a member of the Baader/Meinhof Gang, the most notorious in Europe for many years, gave rise to public revulsion here and internationally and on its own provides sufficient evidence of excessively offensive behaviour. The appellant's conduct here, although much less known to the public in general, compounds that situation. The fact that the appellant was visited by persons with a criminal background indicated she had not cut herself off from such influences although I accept they were individual visits and they do not provide evidence of the existence of any criminal organisation. I consider these matters together justified the respondents conclusion that the appellants admission to the United Kingdom would be contrary to the requirements of public policy on the grounds of her past conduct and associations indicate she is a present threat to public policy." As to the question (as the adjudicator saw it) of a present threat to public policy he rejected "out of hand" the suggestion that from 1970 the appellant was a reformed character. He cited passages from the judgment in the matrimonial proceedings indicating, with some degree of force, that the appellant's evidence in those proceedings was not to be relied upon. The President gave it as his opinion that the appellant would use any lie so as not to be returned to Germany and that her intention to live in England was ancillary to her primary object of staying away from Germany. It must be recalled that these comments were made in the context of a discussion of whether the appellant had acquired domicile of choice in this country and, in particular, whether her declarations of intention in regard to her place of abode could be believed. They had very little if anything to do with whether in 1979 she was a present threat to public policy. The adjudicator also cited the concluding paragraph of the judgment which we have set out on page 5. Once again this passage must be seen in context. It was an expression of the Judge's belief that exercising his discretion it will be unjust to grant a decree of declaration of valid marriage. Whatever his view of the appellant's conduct in that context the Judge was not considering whether the appellant was a present threat to public policy within the meaning of EEC law. After citing the press report of the appellant's statement in 1979, that she had changed her life but not her heart, the adjudicator accepted that the German Court had found that the appellant was no longer a threat. However, he noted that "they took the opportunity to mention that the appellant had not renounced her past". The adjudicator continued: "The internal policies of the West German Government toward former terrorists is a matter for them but there is no obligation on other countries to join in implementing those policies. Likewise the rehabilitation of its criminals is a matter for the West German Government and this country owes no duty at all to the appellant in this regard other than to act reasonably in the conduct of its own affairs in relation to the known facts of the appellent's background. But the appellant's attitude and her Delphic utterances indicate to me that the process of reformation is far from complete and that she is being particularly reticent about her present philosophy. She deceived her close associates during her years in the United Kingdom and she has the ability to do it again." The adjudicator rejected the submission that the appellant's state of health explained the offences committed in England and concluded:

"I consider that the appellant's past conduct, her admittedly minor contacts with persons who had a criminal background, her reservation of her position, her unsettled background, her persistent attempts, by fair means or foul to gain entry to the United Kingdom, all provide sufficient evidence on the balance of probability that she is a present threat to the requirements of public policy."

We agree that national policies of member states of the EEC are matters for each state but we also agree with Mr Grant that each member state owes a duty to individuals as set out by EEC law. In the appellant's case therefore, with respect, the duty imposed on the United Kingdom is not only to act reasonably in its own affairs but to carry out the obligations imposed by the Treaty of Rome and secondary legislation. In the context of this case it is to allow entry unless public policy justifies exclusion. The grounds of appeal "1. The learned adjudicator erred in law in holding that the Appellant constitutes a present threat to the requirements of public policy. The facts set out in the penultimate paragraph of the adjudicator's determination neither in themselves nor in total justify exclusion according to Community law. 2. The learned adjudicator failed to apply the proper test namely, that the threat to public policy must (a) be serious and (b) constitute a threat to the fundamental interests of society: R v Bouchereau [1978] 2 WLR 251." At the hearing Mr Grant added a third ground -- that the adjudicator's determination was against the wieght of the evidence. We now turn to the application of public policy as defined in EEC law to the facts of this case. The grounds of exclusion in this case The adjudicator in relying on the opinion of the Advocate General in the Bouchereau case saw two alternative grounds for the exclusion of the appellant -- (1) past conduct and associations and (2) a present threat to public policy on the basis of her conduct and associations. While any opinion of an Advocate General is entitled to the greatest respect, it must be read subject to the judgment of the Court. In Bouchereau the Court dealt (although perhaps more succintly than the Advocate General) with the specific point of past conduct. It is the Court's view that we must follow. Although the Court agreed that past conduct may constitute a threat to public policy it unequivocally saw that threat as a present threat. In our view, therefore, the adjudicator erred in considering that past conduct, causing public revulsion, is enough to justify exclusion. The past conduct must constitute a present threat. In our approach we follow that adopted by the Tribunal in the case of Klus (3153). In that case the Tribunal approached the assessment of whether the Secretary of State was justified in acting on the grounds of public policy in three stages. It saw the question as raising these issues: "Does the appellant's conduct relied on by the Secretary of State: (i) affect one of the fundamental interests of society -- in addition to the perturbation of the social order which any infringement of the law involves? (ii) (exceptionally) of itself imply a present genuine and serious threat to that fundamental interest? and (iii) if not of itself implying a present threat, is it shown on the evidence that the appellant displays a propensity to act in the same way in the future?" Before us Mr Hedges said that he was not relying on the ground that the appellant displayed a propensity to act in the future as she had done in the past. In considering the issues (i) and (ii) we have had regard to the totality of the evidence not only in the sense that that phrase usually bears but regarding the appellant's conduct as a whole beginning with her participation in the activities in the Baader-Meinhof gang and taking her conduct through to the date of decision. We accept that the appellant's actions in this country, prior to her extradition to Germany should not be taken in isolation but must be seen in the context of her position as a fugitive from German law. We also accept that in 1974 she was ill and that in 1980 she was acquitted of the charge of attempted murder. We place no great weight on the fact that in the United Kingdom in prison she was visited by former associates without at least some evidence of the total number and character of other visitors and whether those with a criminal past had, at the time of the visits, moved away from that past. As Mr Grant says all the visitors were granted leave to enter this country. However, all the appellant's actions until her return to Germany in 1979 to face trial there have to be seen also in the context of her philosophy in regard to the change of the social order and her belief that that change could be carried out by force if necessary. Although the German Court held that in its opinion the appellant would commit no further crime and had no connections with terrorists circles the appellant has not renounced her philosophy. She has had ample opportunity to do so. As we have implied we think that judicial comments about the appellant's conduct made in another context should be transposed to the present context only with the greatest caution. Nevertheless, the need to produce evidence in the present context cuts both ways and none has been produced going to the status of the appellant's beliefs in 1981 and their implementation. It was these beliefs that involved her in the Baader-Meinhof gang in the first place and the activities which no doubt were largely the root cause of her later conduct in England. The appellant's statement in 1979, in answer to an offer of rehabilitation to those engaged in arms struggle and had undergone a change of heart, is somewhat enigmatic. To say that she has changed her life but not her heart helps her little in establishing that the past is past. The only more recent evidence which would help to establish that proposition is contained in the opinion of the German Court in 1980 and in the three letters written in 1983. We have already referred to the views of the court and we take into account the letters are evidence of a way of life within the German society as it is rather than trying to change it to a way in which the appellant believed it should be. The question is the weight this evidence bears when taking into the context of the whole of the appellant's record. We therefore turn to the two issues arising from Bouchereau with the appellant's total conduct in mind. We see it as a continuing saga rooted in her philosophy as implemented in her activities for which she was eventually sentenced by the German Court. (i) Does the appellant's conduct adversely affect one of the fundamental interests of our society? It is almost axiomatic that taken as a whole the appellant's conduct does affect the fundamental interests to our society. We realise that the German Court found that the activities of the Baader-Meinhof gang did not in fact constitute a serious threat to the existence of the state although it did, by its actions, constitute a threat to the citizens of that state. While the activities were directed at and carried out in the Federal Republic of Germany, they are such as to affect the fundamental interests of our society were they to take place here. In our view in assessing the public policy requirements on entry a member state must be able to take into account the characterisation of activities elsewhere and to assess whether if undertaken in that state they would affect the fundamental interests. We conclude therefore that the appellant's conduct is such as to found an exclusion on the basis of public policy. (ii) Is the appellant's past conduct of such a nature that it is a present threat? In our view the appellant's past conduct does constitute such a threat. Given our conclusion as to the characterisation of the appellant's past conduct the issue at the heart of the case is whether the appellant is a changed character. More accurately perhaps the issue is whether the appellant is no longer aiming at implementing her beliefs through methods actually employed in 1970 and 1971 or other methods equally contrary to the fundamental interests of the state. In order for the appellant to be excluded on the ground under discussion her past conduct must constitute a present threat. Such a threat could clearly be founded on a possible return to former conduct. In addition, Mr Hedges suggested that it may be founded on (a) the public outrage that would result from the appellant's admission or (b) the ideology of the appellant and the danger that she would pass on her beliefs and knowledge to others. Mr Grant stressed that the exclusion must be based on the personal conduct of the appellant and said that assessment of whether her conduct was a serious threat should be based on current actions and not statements or beliefs. To rely on ideology or philosophy as a threat, said Mr Grant, is a dangerous line to take, and in any event there is no evidence that the appellant's past philosophy is her present philosophy. It was for the Home Office to establish this on the balance of probabilities and this had not been done. We agree with Mr Grant that to found a present threat on public outrage at past conduct is to venture on to a slippery surface. It is the appellant's personal conduct which must constitute the threat. Public outrage of itself will rarely be a serious threat to fundamental interest, and in any event any thought that admission of an individual could cause such outrage would certainly be difficult to establish. Even more difficult to establish is that such outrage would cause such disturbance as to amount to a serious threat. We take this matter no further as there is no evidence on which we could conclude either that the admission of the appellant would result in public outrage or that such outrage would be a serious threat to public policy. It seems to us that if past conduct is to become a present threat it must be because of a risk either that the conduct of itself will in some way affect the fundamental interest of society (for example through causing a disturbance to the social order) or that because of that conduct there is a risk that the person will act contrary to a fundamental interest of society. We have already held that that conduct did affect a fundamental interest but that there is no evidence that that conduct of itself would on the appellant's entry, be a serious threat to public policy. The question is whether the risk of future conduct is justifiably implied from the fact of past conduct so as to provide a ground of exclusion. The distinction between the ground of past conduct importing risk of future conduct and the requirements of propensity to act in the future would seem to lie in the view that some conduct may be so inimical to a fundamental interest that the risk of repetition or the commission of acts of a like purpose as the past conduct is enough to justify exclusion. Clearly if on the evidence such risk disappears the ground cannot be sustained. If this approach be right once the past conduct is seen as sufficiently heinous the evidentiary burden falls on the individual to show that there is no risk or that the risk is negligible. In this case we think that the appellant's conduct is such as to fall into the category for which exclusion could be justified without establishment of a propensity to engage in that conduct again. It is therefore for the appellant to adduce evidence in order to establish that the risk of repetition or the risk of like conduct is negligible. We bear in mind Mr Grant's strictures about the need to focus on actions and, indeed, it may be difficult for beliefs alone to amount to a present threat. In this case, however, we are concerned with beliefs and their implementation. In the appellant's favour is the opinion of the German Court in 1980 that she could commit no more crimes and that she did not then advocate guerilla warefare and also the somewhat sparse evidence of her way of life in three letters written in 1983. However, the appellant has not herself provided any direct evidence about her activities or her approach to society. It must be recalled that we are not considering punishment for past deeds but whether the evidence shows that those misdeeds do not imply any serious risk of conduct contrary to a fundamental interest of society. In our view the evidence favouring the appellant is insufficient for us to say that the risk inherent in the maintenance of her beliefs (bearing in mind the means adopted to carry them out) has been dissipated. The failure to renounce the past and the distinction drawn by the appellant between her change of heart and change of life cannot but give cause for concern that the past has not been put behind. Despite the German Court's view the risk seems to us to remain that the implementation of her beliefs could be re-activated. Whether this be so or not there remains the type of risk on which Mr Hedges relied ie proselytizing or simply spreading of the doctrine the appellant espoused in 1970 and apparently still espoused in 1980. Taking into account the kind of activities which resulted from her beliefs and the fact that she has not renounced her beliefs, in our view the risk inherent in her past conduct justified the Secretary of State in excluding the appellant on the basis of public policy. On the balance of probability in 1981 the appellant's past conduct constituted a present threat to a fundmanetal interest of our society in the sense that we have outlined. Mr Hedges at one stage suggested that we might formulate a question for the European Court. Mr Grant did not agree that this was necessary. As will be apparent from what has gone before, we take Mr Grant's view of this issue as it is concerned with application of principles which have been laid down by the Court.


Appeal dismissed


Seifert Sedley & Co

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