Court of Appeal hands down judgment in Secretary of State for the Home Department v William George [2024] EWCA Civ 1192

17 October 2024

On 14 October 2024, the Court of Appeal handed down its judgment in Secretary of State for the Home Department v William George [2024] EWCA Civ 1192. The case concerned the levels of protection from deportation provided by EU Directive 2004/38 and the Immigration (European Economic Area) Regulations 2016 (‘the Regulations’) to an EEA national with a right of permanent residence and who had been continuously resident in the UK for more than ten years.[1]

WG is a Belgian national who has resided in the UK since 2004. In 2017 he was convicted of manslaughter for his part in a gang murder and sentenced to 12 years’ imprisonment. In 2018 the Secretary of State made a decision to deport WG under regs 23(6)(b) and 27 of the regulations.

The regulations, reflecting the requirements of EU Directive 2004/38, provided for differing levels of protection from deportation for EEA nationals with a right of permanent residence, depending on whether they had been continuously resident in the UK for more than ten years. If they had not, they could be removed “on serious grounds of public policy and public security” (reg 27(3)).  If they had, they could only be removed “on imperative grounds of public security” (reg 27(4)). WG, as an EEA national who enjoyed a permanent right of residence and had been continuously resident for more than ten years, enjoyed the greater degree of protection afforded by reg 27(4). [88]

WG appealed against the SSHD’s decision to the First-tier Tribunal (FtT). His appeal was allowed in 2019 on the basis that it had not been established that there were imperative grounds of public security warranting his removal: the FtT had felt ‘bound’ by an assessment in an OASys report that WG was at low risk of re-offending.

The SSHD appealed to the Upper Tribunal (‘UT’) on the grounds (i) that the FtT had erred in its approach to the OASys report, and (ii) that in any event: ‘It is also possible that past conduct alone may constitute such a threat to the requirements of public policy’ with reference to paragraph 29 of R v Bouchereau (Case 30/77) [1978] 1 QB 732, ie: “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” [28]. The Bouchereau point had not been raised in the original SSHD decision.

A respondent’s notice was filed for WG in the UT proceedings under rule 24 of The Tribunal Procedure (Upper Tribunal) Rules 2008 defending the FtT’s approach to the OAsys report and arguing, in summary, that the various authorities on the Bouchereau point were not applicable to a case where removal could only take place on imperative grounds of public security.  The UT found that the FtT had erred in law in its treatment of the OASys evidence, and set the FtT decision aside. On the Bouchereau point, the UT commented that the argument took the SSHD’s case ‘little, if any further’. There was then a delay in the matter being re-heard by the UT.

The matter was re-heard by Upper Tribunal Judge Bruce in January 2023 and the appeal was allowed, again on the basis that there were no imperative grounds of public security warranting WG’s removal. Notably, the Senior Home Office Presenting Officer appearing for the SSHD at the re-hearing of the appeal before the UT specifically abandoned the Bouchereau argument [3].

It was therefore perhaps surprising that the Secretary of State’s subsequent appeal to the Court of Appeal was based on the sole ground that the case fell ‘firmly within the ECJ judgment in Bouchereau…’, referring to paragraph 29 of Bouchereau and asserting that WG’s conduct was ‘precisely the type of conduct that alone threatens public policy’, and that such cases ‘in and of themselves are so serious as to require the removal from the UK of the perpetrator.’

Notwithstanding that the Bouchereau point had been abandoned before the UT (and the SSHD’s notice of appeal to the Court of Appeal was late) permission to appeal was granted by Singh LJ. The matter ultimately came before the Court for hearing.

The court determined that notwithstanding WG’s procedural objections, the Court should consider the SSHD’s argument on Bouchereau substantively [72-76].

The court considered the wording of EU Directive 64/221, (‘directive 1’), EU Directive 2004/38 (‘directive 2’) and various authorities on the Bouchereau point including Robinson (Jamaica) v SSHD [2018] EWCA Civ 85 (‘Robinson No 2’).

Laing LJ held at 79:

“First, and most significantly, when Bouchereau was decided, there was no test of imperative grounds of public security in Directive 1, which was the only material legislative instrument. The test in article 3(1) of Directive 1 … was different from the test in article 28(3) of Directive 2 (which, in turn, is reflected in regulation 28[2](4) of the Regulations). Article 3(1) of Directive 1 referred only to ‘public policy or public security’, and not to ‘imperative grounds of public security’. The short and decisive point for this appeal is that considerations of public policy do not feature in that new test, which only applies to EEA nationals with the strongest protection against removal. That new test sets a very high threshold, by reference only to ‘imperative grounds of public security’. The reasoning in Bouchereau, on which the Secretary of State now relies, is irrelevant to the new test. Robinson No 2 does not help the Secretary of State. It decides that Bouchereau is still good law when the appellant has a lower level of protection from removal (see the facts described in paragraphs 7-14 of the judgment of Singh LJ, and paragraph 66). The reasoning in Robinson No 2 does not apply if appellant has the highest level of protection conferred by the Regulations. This appeal is based on a misconception about the law which applies in a case like this. That misconception was identified by Mr O’Ryan in his rule 24 response, clearly articulated by him at the error of law hearing, and maintained since then (see, for example, paragraphs 56 and 58, above).”

Underhill LJ held, giving a separate judgment:

“89. The distinction between the two levels of protection is fundamental to the issue in this appeal.  Two key points emerge from para. 32 of the judgment of Carnwath LJ in LG (Italy), which was concerned with the provisions in regulation 21 of the 2006 Regulations (which are, save in one respect noted at the end of para. 91 below, substantially identical to the provisions of the 2016 Regulations with which we are concerned):

(1)     The words “imperative grounds of public security” impose a criterion which is “both more stringent and narrower in scope than the criterion of “serious grounds of public policy and public security” (see para. 32 (1)).  To spell it out, the criterion is more stringent because the grounds must be “imperative”, which “connotes a very high threshold” (see para. 32 (3)); and it is narrower because the grounds must relate only to “public security”, whereas under regulation 27 (3) they may relate also to “public policy”.

(2)     The difference between the two levels of protection is not merely one of degree but qualitative: “in other words, [regulation 27 (4)] requires, not simply a serious matter of public policy, but an actual risk to public security [my italics], so compelling that it justifies the exceptional course of removing someone who… has become integrated by many years residence in the host state” (para. 32 (5)).

I respectfully agree with those points, and in my view they afford a complete answer to the ground of appeal advanced by the Secretary of State.  In the present case she was obliged to show that Mr George’s continuing presence in the UK posed, in Carnwath LJ’s words, an “actual risk to public security” – and, what is more, a risk so compelling as to justify the exceptional course of deporting him from a country into which he was now integrated by so many years’ residence.  The Judge’s unchallenged findings establish that he posed no such risk.

90. That conclusion is not affected by the observation in para. 29 of the ECJ’s decision in R v Bouchereau (30/77) [1978] QB 732 that “the requirements of public policy” might, albeit exceptionally, require the removal of an EEC national who had committed a serious criminal offence, even where there was no “propensity to act in the same way in the future”, i.e. where there was no threat of future misconduct. The circumstances in which that might be the case are explained by Singh LJ at paras. 68-80 of his judgment in Robinson (Jamaica) v Secretary of State for the Home Department [2018] EWCA Civ 85, [2018] 4 WLR 81, (referred to by Elisabeth Laing LJ as “Robinson 2”): in short, public policy might justify deportation in such a case where the offending conduct was such as to give rise to “deep public revulsion”. However, Bouchereau was concerned with an earlier Directive which had a completely different structure from Directive 2004/38 and, specifically, did not provide for the higher level of protection afforded to EEA nationals with more than ten years’ residence by article 28.3 (from which regulation 27 (4) of the 2006 Regulations derives); and its reasoning was concerned only with the criterion of “public policy”. None of the authorities in which Bouchereau has been considered or applied have been concerned with the criterion of “imperative grounds of public security”.  It is one thing to accept that public policy might justify the deportation of an EEA criminal whose offending behaviour had caused “deep public revulsion”, even though there was no threat of repetition; but that has nothing to do with “public security”, which is, as Carnwath LJ says, a different and narrower concept than “public policy”.

Asplin LJ agreed with both judgments.

The court recognised the seriousness of WG’s offending [93], but dismissed the SSHD’s appeal, with costs.

Rory O’Ryan of GCN’s Immigration and Asylum Team, led by Sonali Naik KC of Garden Court Chambers, acted for the respondent, Mr George, and were instructed by Turpin Miller Solicitors.

Judgment

Secretary of State for the Home Department v William George [2024] EWCA Civ 1192

[1] Note:  EU law (“direct EU legislation” and “EU-derived domestic legislation”) continued to apply in the UK until 31 December 2020. The EEA Regulations 2016 were repealed.  For a review of the law on deportation of EEA nationals post Brexit, see Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 66 (IAC).

[2] Should read ‘27(4)’

Article drafted by Misha Nayak-Oliver and Rory O’Ryan