Machado v Secretary of State for the Home Deptment [2005] EWCA Civ 597

Case No C4/2004/2024[2005] EWCA Civ 597
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE IMMIGRATION APPEAL TRIBUNAL
Appeal No. TH/43669/031
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday, 19 May 2005
Before
LORD JUSTICE SEDLEYLADY JUSTICE ARDENLORD JUSTICE GAGE
Between
MARIO MENDES MACHADOAppellantSECRETARY OF STATE FOR THE HOME DEPTMENTRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Paul Draycott (instructed by Messrs Howells) for A ppellantMr Jonathan Swift (instructed by The Treasury Solicitor) for Respondent
JudgmentLord Justice Sedley :The issues
[1]The central question of law in this appeal concerns the correct approach of appellate bodies to a decision of the Home Secretary to deport on grounds of public policy a foreign national married to an EU national with a right of establishment in the United Kingdom. The substantive issue in the appeal is whether the decision of the IAT to uphold the adjudicator's rejection of an appeal against a decision to deport the appellant is sustainable.

History

[2]The appellant is an Angolan national who entered the United Kingdom in June 1996 and at once claimed asylum. It was refused, and an appeal against the refusal was dismissed, but in August 1998 he failed to attend for removal. Somehow he was left at large notwithstanding several arrests. He was disqualified from driving (presumably following a conviction) and then convicted in October 2000 of driving while disqualified, receiving a community sentence. He repeated the offence and in July 2001 was sentenced to two months' imprisonment for this and for obstructing the police.[3]Then in January 2002 he was arrested for a series of offences of obtaining property and money by deception. In short, he had been claiming social security to which he was not entitled, in an amount totalling over £8,000, in his own name and in two false names over a period of more than a year. In May 2002 he was sentenced to two years' imprisonment with a recommendation for deportation. In September 2002, while he was serving the custodial element of the sentence, he was served with notice intention to remove him.[4]Two months later, in November 2002, he married a British national, Dawn Marris, who had two children (now in their mid-teens) by an earlier marriage. In January 2003 the appellant made a human rights claim on the basis of his new family situation, but it was rejected and an appeal against the rejection failed. Then, on 20 February 2003, the appellant's wife became a citizen of the Republic of Ireland. She had a legal entitlement to do so because her parents were Irish nationals, although she herself had never lived there and continued throughout the material period to live and work in Sheffield. But it is on the basis of her Irish citizenship that the appellant, as her spouse, now asserts the rights which are in issue.[5]At an early stage the Home Secretary took the view that this was a marriage of convenience and therefore outside the ordinary rules, but he has abandoned this contention. Mr Jonathan Swift on his behalf therefore accepts that both the appellant's marriage and his wife's acquisition of Irish citizenship are legal realities.[6]On 24 March 2003 the Home Secretary served a document headed:
"NOTICE OF DECISION TO REMOVE taken under the Immigration (European Economic Area) Regulations 2000"
. Having mentioned the offences of deception and the sentence, the notice recorded that in view of the appellant's marriage his deportation was being reconsidered "on the basis that you are the family member of a European Economic Area national". I will return to the decision contained in the notice and to the reasons for it.

The law

[7]A fundamental part of the EU Treaty is the right of nationals of member states to work and establish themselves throughout the EU. Regulation EEC 1612/68, by art. 10, includes spouses and children under 21 in this right. The right, however, is not unconditional.[8]The regulations in question ("the 2000 Regulations) by reg. 21(3)(b) permit the removal from the United Kingdom of a foreign national who is a member of the family of a qualified person - which the appellant's wife is - if "the Secretary of State has decided that his removal is justified on grounds of public policy, public security or health". By reg. 23 it is provided, in relation to these grounds, that: (b) a decision taken on one or more of the relevant grounds must be based exclusively on the personal conduct of the individual in respect of whom the decision is taken; (c) a person's previous criminal convictions do not, in themselves, justify a decision on grounds of public policy or public security; ………….. (f) a person is to be informed of the grounds of public policy, public security or public health upon which the decision taken in his case is based ….[9]The 2000 Regulations are made in the exercise of ministerial powers under s.2(2) of the European Communities Act 1972 "in relation to measures relating to rights of entry into, and residence in, the United Kingdom", and under s.80 of the Immigration and Asylum Act 1999, which relates to the appeal rights of EEA nationals and their families. The explanatory note to the Regulations indicates that among their purposes is to give effect to Council Directive 64/221/EEC on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health. By art. 1 these govern among other things the expulsion of spouses of nationals of EU states residing in other states. The provisions of reg. 23(b) and (c) - ante - are required by art.3 of the Directive; those of (f) by art. 6. Art. 8 requires access to "the same legal remedies … as are available to nationals of the State concerned in respect of acts of the administration".[10]It is submitted by Mr Paul Draycott for the appellant that the ECJ's jurisprudence on these measures binds UK tribunals and courts in applying the 2000 Regulations since, at least in the parts that matter to this appeal, their purpose is to carry the UK's EU obligations into effect. Mr Swift contests this: he relies on the decision of the ECJ itself in Secretary of State for the Home Department v Akrich [2004] 2 WLR 871 that art. 10 of Regulation EEC 1612/68 (ante) does not apply to a spouse who was not lawfully resident in a member state at the time of the move to the member state from which it is now proposed to expel him. The appellant, he submits, could not have been lawfully resident in Ireland at the time of his wife's putative move to Great Britain, and so acquired no EU rights. His only rights are under the 2000 Regulations, construed without reference to ECJ jurisprudence.[11]This problematical distinction, which was not argued below, will matter only if it appears that there may be a different outcome depending on which approach is taken. I prefer not to decide this underlying question of law unless it becomes necessary to do so.

The appellate jurisdiction and ECHR art. 8

[12]What does have to be decided is the nature and ambit of each level of appeal in a case such as this, falling as it does into the period between the Immigration and Asylum Act 1999 and the Nationality, Immigration and Asylum Act 2002.[13]Reg.29(1) of the 2000 Regulations gives a right of appeal "against an EEA decision", which it is accepted the material decision was. By reg. 29(2): Such an appeal may in particular be made on the ground that, in taking the decision, the decision-maker acted in breach of that person's human rights. The regulation goes on to provide that appeal shall be to an adjudicator and that Sch 4 to the 1999 Act, to the extent scheduled to the Regulations, shall govern such appeals. Sch.2 to the Regulations incorporates para. 21 of Sch 4 to the Act, which provides: (1)… an adjudicator must allow an appeal if he considers(a) that the decision or action against which the appeal is brought was not in accordance with the law or with any immigration rules applicable to the case, or(b) if the decision or action involved the exercise of a discretion by the Secretary of State or an officer, that the discretion should have been exercised differently, but otherwise must dismiss the appeal.[14]It is common ground, in the light of this, that the adjudicator's function in a case like the present is effectively to retake the Home Secretary's decision. In doing so the adjudicator will have regard to the Home Secretary’s policy in relation to the deportation of offenders as a material fact but not as a substitute for or a fetter on the adjudicator’s own judgment: cf. Huang v Home Secretary [2005] EWCA Civ 105, esp §62. It is also common ground that under the regime in force at the material time the IAT was not confined to issues of law. By para. 22(2) of Sch 4 to the 1999 Act it was empowered to "affirm the determination or make any other determination which the adjudicator could have made". While this is not a blank cheque, it authorises the IAT to re-evaluate the consequences of the adjudicator's primary fact-findings, and that is what the IAT did here in relation to the deportation decision.[15]What was, however, treated separately by all parties at both levels was the appellant's art. 8 claim based on the state's duty to respect his family life. Particularly in the light of reg. 29(2) of the 2000 Regulations (ante), this seemed to the court to be in principle a mistaken approach, and both counsel agreed, when it was put to them, that the right approach is to include any art. 8 issue in the evaluation of the proportionality of deporting a foreign national married to an EU national who is here by right. Taking the issues one after the other can be clumsy and logically unsatisfactory; taking them as parts of a whole conforms with reg. 29(2) and makes it much easier to reach a rounded decision. One notes that this was the approach of the Court in Carpenter v Secretary of State for the Home Department [2003] 2 WLR 267, §38-43. But the point is not a ground of appeal and our decision cannot turn on it.[16]It follows that the focus of this court is on the IAT's decision rather than the adjudicator's. If the IAT has erred in law - which is all that this court is concerned with - then, unless a legally correct approach would inevitably have produced the same answer, the appeal will succeed; but not otherwise.

What constituted the decision?

[17]I come back to the Notice of Decision to Remove. Having mentioned only the appellant's convictions and sentence for fraud and his marital status, the notice went on:
"The Secretary of State has considered the offence of which you have been convicted and is satisfied that you would pose a threat to the requirements of public policy if allowed to remain in the United Kingdom. He has therefore decided that your removal would be conducive to the public good."
[18]If this had been the entirety of the Home Secretary's reasoning, there is little doubt that the adjudicator would have had to allow the appeal. It is based on the 2002 indictment alone and says nothing at all about the appellant's present disposition. But, pursuant to what Mr Swift tells us is uniform Home Office practice, when Mr Machado exercised the right of appeal which the notice went on to spell out, the Home Office produced a full explanatory statement dated 29 April 2003. In two and a half closely typed pages, annexed in photocopy to this judgment, it sets out the criminal history, the immigration history, the reasoning which had led to the decision to deport and his response to the notice of appeal. It dealt separately with the art. 8 claim.[19]Mr Draycott submits that as a matter of law the second document cannot form part of the decision and should not therefore have been entertained by the adjudicator or the IAT. He points to the requirement, to which I have referred, that a person must be informed of the basis on which it has been decided that he should be removed on grounds of public policy: in other words, a simple invocation of public policy is not enough. He points out, too, that the principal purpose of giving reasons is to enable the individual concerned to decide whether he can and should appeal: see Rutili v Minister for the Interior [1975] ECR 1219, §52 and (per A-G) at p.1242. I think that there is great force in these points. There are no doubt logistical reasons why the Home Secretary prefers not to set out his full reasoning until and unless his decision is challenged, but convenience is not a sufficient answer if the price of it is injustice. The courts are not receptive, for obvious reasons, to ex post facto justification of decisions: see R v Westminster City Council, ex p Ermakov [1996] 2 All ER 302, 316; R (Nash) v Chelsea College [2001] EWHC Admin 538, p.14.[20]There was no eventual injustice here. The appellant knew in good time what the case for deportation was, and was able to contest it before the adjudicator. The question, however, remains whether he was entitled to confine the Home Secretary to justifying deportation by reference to the contents of the original notice: in other words, whether reasons not given in the notice of the decision can be relied on. As a matter of law, it seems to me that they can be: the notice, however jejune, stands until it is successfully appealed, and the success of an appeal depends on whether the Home Secretary can justify it. There is no prior limit to the material he, or the appellant for that matter, may deploy at that stage.[21]Having said this, it seems to me to be thoroughly bad practice to operate in this way. It means that, on receipt of a notice containing patently deficient reasons, advice has to be taken on the viability of an appeal, and considerable expense very possibly incurred, in the near-certainty that the real reasons will not become known until the appeal is under way. I would not want to hold, without further argument, that an adjudicator could not impose sanctions to limit such abuses.

New evidence

[22]In opening, Mr Draycott sought permission to adduce two short witness statements bringing up to date the appellant's family situation. Asked if this meant that the Home Secretary ought likewise to be able to introduce such things as further offences postdating the IAT decision, Mr Draycott agreed that it did.[23]For my part I would not admit Mr Draycott's new material for two cumulative reasons. One is that our jurisdiction is confined to determining whether the IAT has made an error of law, a question which cannot depend on subsequent events. The other is that, as Mr Swift accepts, it is always open to an individual in Mr Machado's position to ask the Home Secretary to review his decision in the light of fresh developments, just as it is open to the Home Secretary, because of fresh developments, to take a decision to deport someone whom he had previously decided not to deport. It is by these means that effect will be given to the holding of the ECJ in Orfanopoulos v Land Baden-Wuerttemberg [2005] 1 CMLR 18, §79, that "the requirement of the existence of a present threat must, as a general rule, be satisfied at the time of the expulsion".

The issue of law

[24]Mr Draycott submits, without opposition, that what European law requires if the non-national spouse of a migrant EU worker is to be expelled on grounds of public policy is conduct giving rise to a real and sufficiently serious threat to a fundamental interest of society, such that in all the circumstances removal is proportionate: see Orfanopoulos (ante) §AG43, §79; Nazli v Stadt Nuernberg [2000] ICR I-957, §57-8. Mr Swift has contested the applicability of the jurisprudence but has not proposed a significantly different test.[25]I consider that, even without reference to the European jurisprudence, the meaning and effect of regs. 21(3) and 23 of the 2000 Regulations are the same as those ascribed by the ECJ to Directive 64/221. Their purpose is to distinguish from the mere illegal entrant or overstayer who has acquired a family life here, and whose only recourse is to art.8, the spouse of an EEA national whose removal will inevitably impact on the latter's ability to exercise her Treaty rights. The paradigm issue is not the familiar one of whether a person who has no entitlement to be here can overcome the needs of consistency in immigration policy, and so resist removal, on what are generally referred to as compassionate grounds. It is whether somebody who has a derivative but legally sound entitlement to be here ought for reasons of public policy to be removed. I consider that the European jurisprudence, which on any view is persuasive in this regard, reflects our domestic law.[26]It is therefore not necessary to embark on the interesting question posed by Mr Swift and mentioned in paragraph 10 above. It remains, however, to consider one further argument which he advanced in this connection: that it is a material factor that Mr Machado has, so to speak, only scraped into the protection of the 2000 Regulations,(a) because his marriage, though not said to be one of convenience, was remarkably convenient, and(b) because he has gained the protection of the Regulations without enjoying the protection of EU law. Assuming (b) to be legally correct, I reject both limbs of the submission. The protection of our law is not to be attenuated - or, by parity of reasoning, enhanced - by the difficulty or ease with which it has been acquired.

Did the IAT correctly apply the test?

[27]I come at last to the critical issue: did the IAT err in law in upholding the adjudicator's decision?[28]The adjudicator correctly recorded how Mr Draycott put his case: “14. It was submitted … that the Secretary of State had not taken into account anything other than the fact of the criminal conviction…" Whether or not this was so, it was for the adjudicator, having directed himself properly in law, to answer the question set out in paragraph 24 above.[29]The IAT did not confine themselves, as in principle they might have done, to adopting the adjudicator's reasoning and affirming his decision. For my part, in any case, I am not satisfied that such an outcome would have been sustainable, because I am not satisfied that the adjudicator had addressed the critical question properly. But the IAT, who had granted permission to appeal at large, retook the decision, coming to the same conclusion as the adjudicator on different, or differently expressed, grounds.[30]To do the IAT justice it is first necessary to set out their reasoning: 28. We will deal first with the question of whether or not the deportation order is justified under Article 3 of 64/221/EEC on the basis of public policy or public security. It is not disputed between the parties that the appellant’s wife is a worker in this country and that therefore he has rights to remain as the spouse of a worker. Although the Secretary of State now does not pursue the original claim made in the letter of 29 April 2003 that the marriage of convenience, nevertheless we consider that he would be entitled to take into account, as indeed the Adjudicator and the Tribunal is entitled to take into account, the circumstances giving rise to this claim under the Regulations. In the case of Carpenter v Secretary of State to which we have been referred, the court states in paragraph 74: ‘Finally, the question of the risk of abuse should be considered, in particular the possible risk that the national rules of residence concerning the legal position of spouses of nationals who are nationals of non-member countries could be evaded by the spouse who is a national being tempted to “create” a Community connection. Thus it may be argued that the nationals of a member state might, for example, take up employment – even only for a short term – in another member state precisely in order thereby to “bring” themselves and the non-member country spouse within the scope of Community law. It might further be argued that the spouses who are nationals of non-member countries would thus be removed from the exclusive application of national law and would retain a legal position which might be more favourable than under national law, by thereby being given the possibility of residence based on Community law.’ 29. It is to be noted in this case that the appellant entered this country illegally, made his claim to asylum, but did not attend the hearing of the asylum appeal, was not represented there and, upon an adverse decision being given by the Adjudicator, went to ground in 1997 and did not merge until 2002 when he was convicted on criminal offences. During the intervening period he had developed a relationship with the woman who is now his wife and who he married after his conviction and the serving of a notice of intention to remove by the Secretary of State. He then pursued a claim under Article 8 which was dismissed, whereupon his wife then decided to take Irish nationality, thus enabling him to establish the present claim under European regulations. Whilst it may be that the marriage is a valid marriage and a bone fide one, the action of the wife in taking Irish nationality when she was already employed as a UK citizen in Sheffield, and continuing that employment after her change of nationality, must lead to suspicion that this act on her part was merely to enable a third claim to remain in this country to be established.30. The court in Carpenter made it clear that the rules are established in order that citizens of the various countries in the European Union my have a right to work within any country within that Union and that they have the right to be accompanied by their spouses. That is a perfectly valid object but if artificial situations are created by the citizens, this can only be an abuse of the Regulations; a situation which the court in Carpenter clearly deprecates.31. We do not agree with Mr Draycott’s submission that the Secretary of State has concentrated entirely upon the question of the appellant’s criminal record when coming to his decision. The letter of 29 April 2003 sets out other matters which have been taken into account by the Secretary of State including compassionate circumstances, the Article 8 claim and the appellant’s record which would include the fact that, following an adverse decision on his asylum claim, he went to ground. He started cohabitating with Mrs Machado prior to his convictions and, as Mrs Giltrow points out took no steps to regularise his status in this country, knowing at any time, as she must have known, that his status was that of an illegal entrant. He married her after he was convicted, made and had failed an Article 8 claim, whereupon his wife changed her nationality which gave rise to a third claim to remain, the one currently under appeal. So far as public policy is concerned, the whole background and the attitude of the appellant towards regularising his position in this country must clearly be considered and in our view has been considered by the Secretary of State.32. So far as the criminal convictions are concerned, it is argued that they are not of such seriousness as to warrant a decision based upon public policy to deport the appellant. The sum of £8000 may not be a considerable sum of money but the manner in which it was obtained shows clearly a deliberate policy of defrauding the government and the public from whose pockets come the social security benefits. These claims were made under no fewer than three false identities. Further more, and we think of some importance, is the fact that prior to this conviction, the appellant had been convicted of motoring offences and of violence towards a constable. The motoring offences may not of themselves be of great importance, being those of driving whilst prohibited from so doing, but the consequences of this apparent total disregard not only for court orders but for the law of the country, could be far reaching. The fact that the appellant has a conviction which precludes him from driving and then continues to drive, must mean that he was uninsured and, were he to commit such an offence again, he would still be uninsured. Were he to drive again against the prohibition and without insurance, and were he to have an accident which could result in serious injury to innocent members of the public , there could be no question of those being injured being able to seek any financial redress because there would be no insurance company to pay upon a claim. It cannot seriously be contended that there would be any merit in pursuing a civil claim against the appellant. The appellant has behaved with wanton disregard for the laws of this country and has been convicted both in respect of the fraud and of the motoring offences and, so far as the motoring offences are concerned, has disregarded the court’s orders33. It has been argued by Mr Draycott that the Adjudicator has not paid proper regard to the probation officer’s report. We disagree. We consider that his statements in paragraphs 49 and 50 that ‘However the appellant has used several identities in the offences of criminal dishonesty and with regard to the disqualified driving offences and that he has committed those offences at a time when he knew the lady was to become his wife’ does take full account of what the probation officer states. It is apparent that the appellant and his wife attended a session with the probation officer and gave an assurance to him that the appellant would hereafter lead a blameless life. The probation officer appears to have accepted that statement at its face value but the appellant’s past record, in particular that of adapting several identities in relation to criminal activities does not fill one with any confidence that the assurance given to the probation officer is of much value. The probation officer accepted it at its face value without any evidence from psychiatrists or those who have been responsible for the appellant in the course of custody; the assurance given is worth nothing more than its face value.[31]I would make the following respectful observations about this reasoning. First, it nowhere addresses the critical pair of questions: does the appellant's conduct manifest a real and sufficiently serious threat to a fundamental interest of society, and if so is it proportionate in all the circumstances to deport him? Secondly, it deals with the evidence piecemeal and at no stage assembles it into a picture which affords an answer to these questions. In part, no doubt, this is because the submissions had focused on particularities; but the obligation was nevertheless to stand back finally from these and address the legal issue.[32]Paragraphs 28 to 30 deal with the manipulative character of the appellant's conduct. For reasons I have given, I do not think that this attenuates whatever protection he is entitled to in law. If his marriage had been bogus, he would have forfeited this protection; but it was not said to be bogus. If his wife had secured Irish citizenship unlawfully, it would not avail her or him; but it is, so far as anyone knows, entirely lawful. Between them the marriage and the citizenship have legal consequences which in my judgment it is not open to an adjudicative body to dilute because it perceives them, perhaps quite accurately, as having been acquired with ulterior motives. Where these things may matter is in relation to the evaluation of the threat, if any, that the appellant presently poses to society's fundamental interests. But even here care has to be taken to distinguish abusive or manipulative conduct from the legitimate exploitation of legal rights and loopholes.[33]It is necessary to observe in this regard that the citation from Carpenter in paragraph 28 of the Reasons is from the Advocate-General's opinion, not from the judgment of the Court. The succeeding paragraph shows why: the Advocate-General accepted that abuse did not arise on the facts of that case. The passage is accordingly not replicated in the judgment of the Court. More to the point, however, is what I have said in the preceding paragraph of this judgment about abusive conduct.[34]Paragraph 31 of the Reasons considers and rejects Mr Draycott's criticism of the Home Secretary for having "concentrated entirely upon the question of the appellant's criminal record when coming to his decision". The IAT respond, correctly, that the whole immigration history was considered too. But this, with great respect, misses the point: it is that the Home Secretary has failed to consider whether at the date of his decision the appellant's record showed him to present a sufficiently serious threat to the public interest to warrant his removal.[35]Nor have they addressed the question themselves. In paragraph 32 they consider the intrinsic seriousness of his past offending. The closest they come to the question of a present threat is where they speculate about what would happen to his victims if he went back to driving without insurance. They have overlooked the fact that the Motor Insurers' Bureau maintains a fund for the victims of uninsured drivers. There is without doubt a great deal to be concerned about in the combination of the appellant's motoring record with his fraud convictions: they give real point to the question whether he continues to be a sufficient public menace to warrant removal, but by themselves they do not answer it.[36]Lastly, in paragraph 33, the IAT consider the probation officer's report on which Mr Draycott was placing reliance in relation to present and future risk. This was the text of the report:
“Mario Machado was released from HMP Doncaster on 27 March 2003 and I have supervised his Automatic Conditional Licence. The licence expired on 31 July 2003. Mr Machado reported as per National Standards and co-operated fully with the terms of his licence. He appeared eager to obtain work, but was unable to do so due to the restrictions of his situation. I visited his home on one occasion and on several visits to the office he was accompanied by his wife. There were no concerns that Mr Machado would re-offend during the licence period and in my professional opinion the risk of him re-offending in the future is low. In my dealings with him I always found him good humoured and communicative, willing to answer questions about his past and present life and seemingly determined to live a responsible and law-abiding life with his wife and her children by a previous relationship.”
[37]What the adjudicator had said about it was this49. Whilst I have considered the submissions made that the appellant is unlikely to become involved in for the criminal offences, the offences that the appellant became involved in and pursued over such a substantial period of time are serious offences. I note that there is a letter from the support services that indicate in their opinion the appellant is unlikely to commit further offences. However the appellant has used several identities in the offences of criminal dishonesty and with regard to the disqualified driving offences.50. The appellant has committed those offences at a time when he knew the lady that was to become his wife.[38]It seems to me, with great respect, that both the IAT and the adjudicator in the passage the IAT cite have been unacceptably dismissive of the probation officer's report. The probation service is not a "support service": probation officers are trained to be objective and cautious in relation to offenders, whom they may have to have recalled from parole to prison for breaching the terms of their licence. The appellant and his wife did not simply attend a session with the probation officer: it is plain from his letter that he had supervised the appellant through his licence period and had observed no sign of reoffending during its currency. He may well have been mistaken in his prognosis that Mr Machado would now lead a law-abiding life, but that does not mean that he was taking the appellant at face value. I consider that this report deserved better treatment than it received: not, in other words, that I would have given it more weight than the IAT did (that is irrelevant), but that their reasons for giving it none are unsound.[39]The probable source of these errors emerges at the end of paragraph 34 of the reasons: the assimilation of public policy to immigration policy. Where the decision concerns someone with no right to be here, immigration policy forms the principal, and usually the decisive, element in the decision. But in the present class of case, immigration policy, so far as it is in play, is coterminous with the rights flowing from the EU Treaty or, at the very least, the 2000 Regulations. Its upshot is that people in the appellant's position cannot be removed unless public policy requires it and removal is proportionate. The forensic exercise is correspondingly quite different.[40]Lastly, nowhere in the IAT's conclusions is the proportionality of removal addressed. Given that art.8 was separately canvassed, it was necessary to consider this - no doubt by reference to largely the same factors - before deciding whether deportation was the right course. I would place no weight on this point if the IAT's treatment of art. 8, from paragraph 35 (quoted by Gage LJ at paragraph 57 below) to the end of its Reasons, demonstrated a sound answer that must apply equally to the removal decision. But this part of the Reasons too seems to me less than satisfactory. I have already indicated my view that the proper place of art. 8 is within the issue arising under the 2000 Regulations, and much of the problem, I think, stems from considering respect for family life in the face of the accomplished fact that deportation on grounds of public policy has already been found to be both deserved and proportionate. Be that as it may, I do not consider that the treatment of the art.8 claim by the IAT can save their decision as a whole.[41]I would add that proportionality is not an issue that can ordinarily be addressed in one sentence. It does not demand complexity, but it calls for a structured approach. What is the legitimate object? Here, the enforcement of public policy by the elimination of criminal conduct - not the maintenance of immigration controls. Given (since otherwise proportionality does not arise) that the appellant poses a present and serious threat to public policy, is the effective termination of his family life, for which respect is commanded by art. 8 and upon which his spouse depends for the realisation of her EEA rights, a proportionate or an excessive means of dealing with the threat? The decision of the European Court of Human Rights in Amrohalli v Denmark (11 July 2002) demonstrates that a properly conducted examination of proportionality in a case of the present kind is quite capable of producing a decision in favour of the applicant.[42]Mr Draycott has submitted that the wife's acquisition of Irish citizenship and Mr Machado's acquisition of proxy EEA rights draws a line under his earlier immigration history, making it legally irrelevant. I do not accept this. While, as I have held, he can no longer be treated as an unlawful immigrant, it is not in my view illicit, in gauging whether he poses a present and serious threat to public policy, to look at his conduct during the years when he had acquired no such status. In view of the time now elapsed and the changed circumstances, great care has to be taken in deciding what use may fairly be made of it; but it is capable of having a bearing on the question, for example, whether he is a man who will break the law when it suits him.

Conclusion

[43]This court lacks jurisdiction, and in any event is not well placed, to make the findings and value-judgments which the law requires. If, as I would hold, the IAT's decision rejecting the appeal is legally flawed, and if - as has not been disputed - their upholding of the adjudicator's decision was not a foregone conclusion, I see no alternative but to remit the appeal for decision by a differently constituted tribunal. I do not consider that this is a case, like B v Home Secretary [2005] EWCA Civ 61, in which remission to the adjudicator is appropriate.[44]I refrain in these circumstances from any more comment than I have made in passing on the adjudicator's decision. It is not directly in issue before us, as it will be before the IAT.

Lady Justice Arden:

[45]I gratefully adopt the statement of the facts in the judgment of Lord Justice Sedley.[46]The question for this court on this appeal is whether the Immigration Appeal Tribunal made an error of law when it dismissed Mr Machado’s appeal to it. The principal errors on which Mr Paul Draycott, for Mr Machado, relies are in the treatment by the tribunal of proportionality. The decision of the Home Secretary to deport Mr Machado had to be proportionate from two perspectives. First, it had to be proportionate having regard to the needs of public policy and security (being the bases on which Mr Machado’s deportation would be permitted under the law of the European Union). Second, the decision of the Home Secretary had to be proportionate having regard to Mr Machado’s rights under article 8 of the European Convention on Human Rights. Mr Draycott’s case is that the tribunal did not deal with proportionality correctly.[47]I start by considering whether or not the Tribunal erred in law in their approach to the question whether the interference with the family life of Mr Machado involved in the making of the order was proportionate for the purposes of article 8(2) of the Convention. . This involves consideration of the family life of Mr Machado. The Home Secretary can only deport Mr Machado for reasons within article 8(2) if those reasons must justify interfering with the Machados’ right to family life. This is in addition to the right under European law of Mrs Machado, as a citizen of the Republic of Ireland, to be present in the United Kingdom. As a result of this right, the United Kingdom may not exercise its powers of deportation so as effectively to prevent her from exercising that right (see R v Immigration Appeal Tribunal and Surinder Singh ex parte the Home Secretary (case C-370/909) [1992] ECR 1- 4265.[48]The relevant paragraph of the decision of the Tribunal is paragraph 35, which is set out in paragraph [57] of the judgment of Gage LJ.[49]Article 8 of the Convention must be observed in this jurisdiction by virtue of the Human Rights Act 1998. It is also recognised and applied by European Union law : see Rutili v Minister for the Interior [1975] ECR 1219.: Mr Paul Draycott, for Mr Machado, however, submits that the test of proportionality is different under the relevant European Union law from that which is to be applied when article 8 arises in other contexts. He relies on paragraph 106 of the decision of the Court of Justice in Orfanopoulos vLand-Baden-Wurttemberg [2005] 1CMLR 433. This paragraph deals with the review of an administrative decision where under the national law there is no right of appeal to a court or that right of appeal is limited to points of law or the appeal has not suspensory effects. In those cases, the member state must provide a right of appeal to a competent authority which effectively retakes the original decision. In my judgment the standard of review set by paragraph 106 is applicable to only to the adjudicator. Where the appeal is to the tribunal or the court, the tribunal or court may adopt some other standard of review, subject to article 6 of the Convention and to the other provisions of domestic law. In my judgment, the proportionality exercise required to be performed by the tribunal for the purposes of article 8 is thus not different in character simply because the exercise has to be performed under European Union law. Therefore I agree with my Lords that the application of article 8 in this case should not have been treated as separate from the other issues which arise under European Union law.[50]In Huang v Home Secretary [2005] EWCA 105, this court considered that standard of review in cases involving challenges to the action of the Home Secretary. This court distinguished decisions that involved an element of policy as well as human rights from those where such element of policy was absent. This court held that in the former case (which is the situation here) the court performs a more intrusive review than under the traditional Wednesbury grounds in accordance with the decision of the House of Lords in R(Daly) v Home Secretary [2001] 2AC 532. In that case, Lord Steyn, which whom Lord Bingham and Lord Cooke agreed, described the form of review required in this way:
“[27] The contours of the principle of proportionality are familiar. In de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, [1998] 3 WLR 675 the Privy Council adopted a three-stage test. Lord Clyde observed that in determining whether a limitation (by an act, rule or decision) is arbitrary or excessive the court should ask itself: ‘“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”’ (See [1999] 1 AC 69 at 80, [1998] 3 WLR 675 at 684.) Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach (see Professor Jeffrey Jowell QC‘Beyond the Rule of Law: Towards Constitutional Judicial Review’ [2000] PL 671; Craig Administrative Law (4th edn,1999)pp 561–563; Professor David Feldman‘Proportionality and the Human Rights Act 1998’ in The Principle of Proportionality in the Laws of Europe (1999) pp 117, 127 et seq). The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review in as much as it may require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence, ex p Smith [1996] 1 All ER 257 at 263, [1996] QB 517 at 554 is not necessarily appropriate to the protection of human rights. It will be recalled that in Ex p Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on art 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd 8969 (the convention)) (the right to respect for private and family life) foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v UK (1999) 29 EHRR 493. The court concluded (at 543 (para 138)): ‘“whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.”’ (See [1999] 1 AC 69 at 80, [1998] 3 WLR 675 at 684.) ‘the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the domestic courts of the question of whether the interference with the applicants’ rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the Court’s analysis of complaints under Article 8 of the Convention.’ In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued. [28] The differences in approach between the traditional grounds of review and the proportionality approach may therefore sometimes yield different results. It is therefore important that cases involving convention rights must be analysed in the correct way. This does not mean that there has been a shift to merits review. On the contrary, as Professor Jowell has pointed out, the respective roles of judges and administrators are fundamentally distinct and will remain so (see [2000] PL 671 at 681). To this extent the general tenor of the observations in R (Mahmood) v Secretary of State for the Home Dept [2001] 1 WLR 840 are correct. And Laws LJ (at 847 (para 18)) rightly emphasised in Mahmood’s case ‘that the intensity of review in a public law case will depend on the subject matter in hand’. That is so even in cases involving convention rights. In law context is everything.”
[51]In the present case the Tribunal applied the test of the range of reasonable responses (see paragraph 35 of their judgment). It is clear from the passage which I have cited from Daly that this is not the right test. The test laid down in Daly lays down the minimum test which the tribunal must apply. In this case the tribunal must additionally consider whether this case is one in which the tribunal should exercise its powers under paragraph 22(2) of schedule 4 to the Immigration and Asylum Act 1999 (set out in paragraph 14 of the judgment of Sedley LJ). These powers enable the tribunal to go beyond the mere review of the decision of the adjudicator.[52]For the above reasons I agree that the decision of the tribunal in this case cannot stand. It must be set aside and the case remitted to a differently constituted tribunal. The case should not be remitted to an adjudicator for the reasons given by

Lord Justice Sedley. Lord Justice Gage:

[53]I agree that this appeal must be allowed. I gratefully adopt Sedley LJ’s summary of the facts and of the law. I agree that the focus of this appeal centres on the decision of the IAT.[54]For reasons which I will express shortly I would not be as critical as Sedley LJ of either the adjudicator or the IAT in so far as each concluded that the appellant’s convictions coupled with his immigration history were such that the Secretary of State could properly consider making a deportation order on grounds of public policy. I would not, for instance, be critical of the observations of the IAT on the probation officer’s opinion. In my view the IAT was entitled to as to treat his opinion with some scepticism.[55]However, I agree that nowhere in its decision does the IAT properly set out the two important questions which it was bound to answer. The closest it got to these questions is a recital of submissions on European case law made to it by Mr Draycott: see paragraphs 20 and 21. Thereafter the whole tenor of the reasoning is more consistent with discussion and emphasis on past conduct rather than on future threat. For that reason in my opinion the decision cannot stand.[56]The matter which has also caused me concern, particularly in regard to the IAT’s decision, is its treatment of the question of proportionality. As Sedley LJ points out, in this case proportionality arises in two respects. First, it must be considered on the issue of whether the threat to a fundamental interest to society is such that it is proportionate in all the circumstances to deport the appellant. Next, the issue of proportionality arises under Article 8 of the ECHR. I agree with Sedley LJ that it is sensible for the two to be considered together since the factors to be taken into account may be the same or, at least, subject to considerable overlap. But clearly both elements have to be taken into account.[57]At paragraph 35 the IAT state: “Turning to the Article 8 claim, we would accept that a private and family life has been established in this country, as the Adjudicator has done. It is therefore a question of whether, in order to maintain a proper immigration policy, it would be disproportionate for the Secretary of State to deport the appellant. We bear in mind the cases of Razgar [2003] INLR 543, Edore [2003] INLR 361, Djali [2003] EWCA Civ 1371 and the recent determination of the Tribunal in the case of M [2004] UKIAT 00024 which established the principle that it is not within the powers of an Adjudicator to substitute his views for those of the Secretary of State, that the function of the Adjudicator and the Tribunal is only to consider whether the decision of the Secretary of State is one within a range of reasonable responses”.[58]It does not appear from this paragraph that the IAT considered proportionality as a factor in the context of the fundamental threat to society. Further, in the context of Article 8, in my opinion, the test applied by the IAT was too restrictive. At the least, the IAT should have subjected the Secretary of State’s decision to careful and anxious scrutiny in order to satisfy itself that the decision had struck a fair balance between the legitimate aim of the state and the appellant’s Convention rights: see Samaroo v Secretary of State [2000] INLR 55.[59]In the final sentence of the decision, the IAT state its conclusion that the decision of the Secretary of State was one within a reasonable range of responses and was proportionate. This sentence repeats what in my opinion represents a too restrictive approach.[60]Mr Swift in a written representation to the court submits that the case of Amrollahi v Denmark 11 July 2002, relied on by Mr Draycott, establishes no point of principle applicable in this case. I agree; but, in my opinion, it does demonstrate that if the IAT had correctly directed itself on the issue of proportionality it would not necessarily have reached the same conclusion.[61]For these reasons I too would allow this appeal and remit the case to a differently constituted tribunal.

ORDER

Appeal allowed. Case remitted to IAT for reconsideration. Respondent to pay Applicant’s costs of appeal. (Order does not form part of approved judgment)

Cited in 2 later judgments