LG (Italy) v Secretary of State for the Home Department [2008] EWCA Civ 190

[2008] EWCA Civ 190Case No C5/2007/1408
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ASYLUM AND IMMIGRATION TRIBUNAL
IMMIGRATION JUDGE PAGE AND MR P RODGERS JP
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/03/2008
Before
LORD JUSTICE MUMMERYLADY JUSTICE ARDENLORD JUSTICE CARNWATH
Between
LG (ITALY)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Cecilia Hulse (instructed by Messrs. Duncan Moghal) for AppellantTim Eicke (instructed by Treasury Solicitors) for RespondentHearing Hearing date : 7th February 2008
JudgmentCarnwath LJ:Introduction
[1]This is an appeal against the decision of the Asylum and Immigration Tribunal (the “AIT”) dated 19 January 2007. The AIT, on a reconsideration, dismissed the Appellant’s appeal against the decision of the Secretary of State that he should be deported on grounds of public policy, public security or public health.[2]The Secretary of State’s decision was made under the Immigration (European Economic Area) Regulations 2000 (made pursuant to EU Directive 64/221) From 30th April 2006 they were superseded by the Immigration (European Economic Area) Regulations 2006 (the “2006 Regulations”), under Directive 2004/38. It is common ground that, by virtue of transitional provisions (sched 4 para 5), the appeal was rightly considered by the AIT under the 2006 Regulations.[3]There are two principal issues: 1) (On the appeal) whether, on the basis that, as found by the AIT, LG satisfied the 10-year residence criterion under the 2006 Regulations, the AIT had been entitled in law to hold that there were “imperative grounds of public security” for removing him; 2) (Under the respondent’s notice) whether the AIT erred in law in holding that LG satisfied the 10-year residence criterion, in view of the fact that for the preceding 7 years he had been in prison.

Facts

[4]LG was born on 18 October 1969 and is an Italian national. He has lived in the United Kingdom since 1985. On 10 November 2005, the Secretary of State made a Deportation Order against LG under section 3(5)(a) of the Immigration Act 1971 and regulation 23 of the 2000 Regulations on the grounds that his presence in the United Kingdom posed a threat to the requirements of public policy, and his deportation would be conducive to the public good.[5]The decision followed LG’s five criminal convictions between 1996 and 2001. The most recent in 9 October 2001 was for robbery and causing grievous bodily harm with intent. The offence was described by

the judge as “a brutal, senseless, cowardly attack upon an elderly gentleman”; he added:

“I think you are a thoroughly dangerous man… I don’t think for offences of robbery of this type it gets much worse”
The court imposed two separate but concurrent sentences of 12 years imprisonment. (They were later reduced on appeal to 9 years, for technical reasons). He had been arrested in January 2000, and has been in prison ever since.[6]An appeal against the Secretary of State’s decision was dismissed by the AIT on 20th December 2005 (still under the 2000 Regulations), but reconsideration was ordered, initially on procedural grounds only. However, by the time of the reconsideration hearing in November 2006, the 2006 Regulations had come into force, and there had been a reported decision of the AIT under them: MG & VC (EEA Regulations 2006 “Conducive” Deportation) Ireland [2006] UKAIT 00053. It was argued for LG that, under the 2006 Regulations, as an EEA national he had obtained a permanent right of residence, based on 5 years residence in the UK. In adjourning the matter for a second stage hearing, SIJ Chalkley indicated that this issue should be looked at by the Secretary of State as a matter of urgency “in order that public funds should not be wasted” (see decision para 11.9-11).[7]The second-stage hearing took place before IJ Page and Mr P Rodgers in January 2007. Before them the argument had shifted. It was now argued for LG that he had had ten years’ continuous residence in the United Kingdom, and that accordingly under the 2006 Regulations there needed to be “imperative grounds of public security” to justify the deportation order (para 28). It does not appear to have been argued on behalf of the Secretary of State at this stage that his period in prison did not qualify as “residence” for this purpose. The debate turned principally on whether he had been absent for more than six months in 1996 (para 51-2). On this issue of fact, the tribunal found in his favour, accepting that “the balance of the evidence” demonstrated that LG had had “ten years’ continuous residence for the purposes of the appeal” (para 56-8).[8]However, they agreed with the Secretary of State, that, even applying that “imperative grounds” criterion, the order was justified. They rejected the appellant’s argument, based on the decision of the AIT in MG & VC,that the expression “imperative grounds of public security” implied a reference to “the commission or suspicion of terrorist offences” (para 63). Unless compelled by clear authority, they were - “… unable to accept… that this ground cannot include the history of serious criminal offending that this appellant has committed and any risk of repetition…” (para 65) On that basis, they considered, in agreement with the sentencing judge, that LG was “a very dangerous man”, and that he “continues to pose a very serious public risk indeed”. They took account not only of the seriousness of his offences, but also of his apparent unwillingness to accept any real responsibility for the injuries to his victim. They held also that the removal was proportionate for the purposes of Article 8 (para 62-68). Accordingly the appeal was again dismissed.[9]On 26 April 2007 SIJ Spencer granted permission to appeal to the Court of Appeal stating:
“The argument that the tribunal made a material error of law in its interpretation of the requirement of “imperative grounds of public security” in relation to deportation of an EEA national who had resided in the United Kingdom for a continuous period of ten years contained in regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006 has a real prospect/chance of success and a ruling by the Court of Appeal on the point would provide helpful guidance for the tribunal in future cases.”
In response to the appeal the Secretary of State offered to consent to an order remitting the case to the AIT. According to Mr Eicke’s skeleton argument, the Secretary of State considered that the tribunal may have made “a fundamental error” by directing itself “by reference to purely domestic law rather than by reference to the legislation and guidance relevant to EC free movement law”. However, that offer was not acceptable to the appellant, who (perhaps understandably) wished the court first to determine the substantive point on which guidance had been sought by the SIJ when granting leave. Before us, the Secretary of State sought and obtained permission out of time to file a respondent’s notice, raising the second principal issue identified above.[10]As to LG’s current position, we were told that he was detained under immigration powers when he would otherwise have been released under licence. He was subsequently granted bail under his licence conditions, which included living in a bail hostel. It seems, however, that no bail hostel accommodation was made available for him and that in consequence his bail was rescinded on the application of the Home Office. He therefore remains in custody. The circumstances of that detention are not however before us.

The legislation

[11]The Secretary of State’s statutory power to deport is derived from section 3(5)(a) of the Immigration Act 1971, which provides:
“A person who is not a British citizen is liable to deportation from the United Kingdom if the Secretary of State deems his deportation to be conducive to the public good.”
Nothing turns on the 1971 Act as such, since the criteria for deportation of EU citizens have since become subject to a detailed code under European legislation. The 2006 Regulations which now apply to this case were designed to transpose the relevant provisions of Directive 2005/38 into English law. As I understand it, there is no dispute as to their conformity with the Directive. The Directive, including its Preamble, remain relevant as aids to interpretation.

The 2006 Regulations

[12]The parts material to this case are those dealing with the acquisition of a right to permanent residence (reg 15), with removal (reg 19), and with “relevant decisions” taken on “public policy” or “public security” grounds (reg 21): 15. (1) The following persons shall acquire the right to reside in the United Kingdom permanently: (a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years. … 19… (3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if (a) he does not have or ceases to have a right to reside under these Regulations; or(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21. … 21(1) In this regulation a "relevant decision" means an EEA decision An EEA decision means “a decision under these regulations” on various matters including “removel from the United Kingdom”: reg 2(1). taken on the grounds of public policy, public security or public health.… (3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security. (4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who— (a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989. (5)…” (emphasis added)[13]For present purposes, it is unnecessary to set out in detail the succeeding parts of the regulation, which provide in effect a list of guiding considerations. For example, matters to be taken into account include “the principle of proportionality”. The decision is to be based on “the personal conduct of the person concerned”, which must represent “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”; previous criminal convictions do not “in themselves” justify the decision (reg 21 (5)). In relation to a UK resident, the decision-maker must take into account - “…considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin” (reg 21(6)).

The hierarchy and the “imperative grounds” test

[14]As appears from the emphasised words above in regulation 21(1)-(4), the 2006 Regulations have introduced a new hierarchy of levels of protection, based on criteria of increasing stringency: 1) A general criterion that removal may be justified “on the grounds of public policy, public security or public health”; 2) A more specific criterion, applicable to those with permanent rights of residence, that they may not be removed “except on serious grounds of public policy or public security”; 3) The most stringent criterion, applicable to a person “who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision”, who may not be removed except on “imperative grounds of public security”. The regulations provide no further guidance on the meaning of these expressions.[15]In some respects the present wording of the regulation (following the Directive) reflects the language used by the ECJ in an early case, R v Bouchereau [1981] 2 All ER 924, where the court commented on the “public policy” grounds: “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.” (para 35) The Court of Appeal has long accepted that removal on “public policy” grounds may be a justified response to sufficiently serious criminal conduct, if combined with evidence of a propensity to reoffend, and in particularly serious cases even without it (see Marchon v IAT [1993] ImmAR 384; Goremsandu v Secretary of State [1996] ImmAR 250; R(Schmelz) v IAA [2003] EWCA Civ 29). The “imperative grounds” test is new, and has not as far as we know been the subject of judicial consideration in the higher courts, in this country or elsewhere.

The 2004 Directive

[16]In the Directive, the Preamble provides some background to the thinking behind the new code. Paragraph 3 states:
“Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens.”
[17]Paragraph 17 refers to the new permanent right to residence after five years:
“Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen in the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.”
[18]The new provisions relating to decisions on entry and removal are described as designed to ensure – “…a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their families may be denied leave to enter or may be expelled…. Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin. Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life…” (Preamble paras 22-24)[19]In the Directive itself, Article 28 (Protection against expulsion) provides the basis for the three-part hierarchy adopted in the 2006 Regulations, and uses the same expressions. The only significant difference is that the most stringent category refers to “imperative grounds of public security, as defined by Member States”. The 2006 Regulations contain no such qualification, nor any specific definition.

The Operational Enforcement Manual

[20]We were also referred to the Department’s Operational Enforcement Manual, which contains guidance on the use of these provisions, including the “imperative grounds” test. Mr Eicke even suggested that the Operational Manual should be regarded as containing the UK’s “definition” of “imperative grounds of public security” for the purpose of Article 28. I cannot accept that. We have had no evidence as to the status of the Manual, but I take it to be a working guide to the Department’s policies and practices (see MacDonald Immigration Law and Practice 6th Ed para 1.54). There is certainly nothing to indicate that it was intended to embody a formal definition for the purposes of Article 28. If it had been intended to apply a specific UK definition, as provided for in that article, I would have expected to find it in the regulations themselves.[21]That view was reinforced when it became clear to us (after the hearing) that the relevant part of the Manual had changed, as recently as December 2007. Chapter 76 of the earlier version contained the following:
“A conviction for murder, a terrorism offence, a drug trafficking offence, a serious immigration offence, or a serious sexual or violent offence carrying a maximum penalty of 10 years or more might constitute serious grounds of public policy or public security… Imperative grounds of public security will involve national security matters, or crimes that pose a particularly serious risk to the safety of the public or a section of the public. Imperative grounds in this respect might be where the person has been convicted of murder, a terrorism offence, a drug trafficking offence, a serious immigration offence, or a serious sexual or violent offence carrying a maximum penalty of 10 years or more and been sentenced to a custodial sentence of 5 years or more.”
(emphasis added)[22]In the revised version the relevant passage appears in chapter 69. It first explains “serious grounds of public policy or public security”:
“This means committing crimes that pose a particularly serious risk to the safety of the public or a section of the public and having a propensity to reoffend.”
Examples are given, including conviction for murder, a terrorism offence or – “… a serious sexual or violent offence carrying a maximum penalty of 10 years or more with a proven track record of re-offending…” The following paragraph refers to regulation 21(4), which it explains as follows:
“… if somebody has resided in the UK for a continuous period of at least 10 years prior to the decision to deport (excluding time spent in custody) there must be imperative grounds of public safety (sic). The difference between serious and imperative grounds is one of severity: alongside the propensity to re-offend, generally these grounds will include offences that carry a maximum penalty of at least 10 years and the person will have been sentenced to a custodial sentence of at least 5 years.”
(emphasis added)[23]We had no evidence as to the reasons for the rewriting, other than that (according to a message from Mr Eicke after the hearing) the whole section had been “updated and revised”. The most notable changes are, first, the weight given in the later version to “propensity to reoffend”, and, secondly, (in the emphasised words in each passage) the change from a distinct definition of the “imperative grounds” test to its characterisation as a matter simply of relative “severity”. The first change seems uncontroversial. The second will require further discussion.

Submissions on the appeal

[24]The sole issue raised by the appeal itself relates to the AIT’s interpretation of the “imperative grounds” test. (Ms Hulse initially sought also to reopen issues under Article 8 of the Human Rights Convention, but she accepted that this line of attack was not within the scope of the grounds of appeal.)[25]She submitted that the tribunal had failed to apply the guidance in MG & VC (see above), which showed that this test requires something more than “the ordinary risk of a convicted criminal committing further offences”. In that case, the first AIT judge had refused to confirm a deportation order, in spite of the appellant’s conviction of robbery, because he had “the motivation and the ability” to obviate the risk of reoffending. This decision was confirmed on reconsideration by the tribunal (presided over by Mr Ockelton, Deputy President). I should set out the relevant passage in full:
“These appeals are undoubtedly to be considered within the calculus of removals for which provisions are made in the new Regulations. We remind ourselves that under those Regulations an EEA national who has a permanent right of residence in the United Kingdom can be removed only on “serious grounds of public policy or public security”; if the EEA national is under the age of eighteen or has resided in the United Kingdom for more than ten years he can be removed only on “imperative grounds of public security”
. The meaning of the last phrase is not absolutely clear. What is clear is that the grounds for removing any EEA national with a right of residence is more strongly expressed than it was under the previous regulations, by the insertion of the word “serious” before “grounds”. Further, in the case of a minor or long-term resident even serious grounds are not enough and no grounds merely of public policy are enough. The word of intensification is “imperative” and the grounds must be grounds of “public security”. At the hearing, Mr Montilla indicated that his instructions were that the phrase “imperative grounds of public security” was a reference to the commission or suspicion of commission of terrorist offences. It may well be that that is what is intended by that phrase in the English version of the Directive and in the Regulations, bearing in mind the similar specialised meaning that “security” has in the 1971 (and subsequent) Acts. Whether or not that is so, we do not thinkthat it is a phrase which is appropriateto cover the ordinary risk to society arising from the commission of further offences by a convicted criminal. That is the risk which has in the past been met by removal decisions based on grounds of “public policy”. (emphasis added)[26]In reading that passage, it is important to bear in mind that Mr Montilla was appearing for the Secretary of State. His “instructions” that the phrase “public security” was directed to the risk of “terrorist offences” might reasonably have been thought to represent the Secretary of State’s considered view of the correct approach. However, as has been seen, that narrow approach is not reflected in either version of the Manual, nor in the Secretary of State’s submissions in this court. Nor was it adopted by the tribunal. In the event it was not necessary for the tribunal to rule on the precise scope of the test.[27]I do not consider that Ms Hulse gains any useful support from that passage. Their conclusion was not based simply on the seriousness of the crime as such, but rather on the risk posed of its repetition by a “very dangerous man”. It is not suggested that their conclusion was not justified on the facts. Indeed, it was entirely in line with the view of the sentencing judge. Even applying the approach suggested in MV & VC,this was not simply “the ordinary risk to society” arising from commission of further offences by a convicted criminal, but as they found, a “very dangerous man” who posed “a very serious public risk indeed”.[28]I must bear in mind that the Secretary of State was prepared to concede the appeal, on the grounds that the tribunal had erred by looking at the matter solely in terms of domestic legislation. However, I find the criticism difficult to understand from that source, given the way the case was argued, which did not depend on any reference to European issues. The arguments on both sides centred round the “imperative grounds” test, applied in accordance with its ordinary meaning, and that was how the tribunal approached it.[29]My initial view therefore was that the appeal must fail, in that, on the evidence and arguments before them, the tribunal had not been shown to have erred in law.

The wider picture

[30]However, I have noted also that permission to appeal was granted specifically to enable this court to give guidance for future cases. The need for such guidance is underlined by the inconsistencies on the Secretary of State’s side, not only in the submissions made at different times to the AIT, but also in the two versions of the Manual. I have also had the advantage of reading Arden LJ’s judgment, which highlights the problem of giving a distinct meaning to the word “imperative”, as compared to “serious”. It seems possible that in the French text, which she quotes, the words imperative (“imperieuses”) and serious (“graves”) have been transposed in error. I note that the Italian and Spanish versions, which use similar words, follow the English order. This linguistic aspect clearly needs more detailed attention than we have been able to give it. In any event, I am persuaded by her, on balance, that it is open to us to allow the appeal for the reasons given by her (even if not on grounds which were argued before the AIT), and that the fair course is that proposed by her. I will add some brief comments of my own.[31]On the basis of the relatively limited arguments we have heard, I would not myself feel confident in attempting to lay down any definitive guidance. In any event, I would not wish to do so until the Secretary of State has reached a more settled view both of the legal interpretation of the provisions, and of the policy considerations governing their application in practice. In the latter respect European law recognises “an area of discretion” for Member States (Van Duyn v Home Office [1974] ECR 1337 para 18); and the Directive specifically allows for the “imperative grounds” test to be subject to specific definition by Member States.[32]The following points should be taken into account: 1) Weight must be given to different tests within the new hierarchy. The words “imperative grounds of public security” at the third level are clearly intended to embody a test which is both more stringent and narrower in scope than “serious grounds of public policy or public security” at the second level. 2) “Public security” is a familiar expression, but it does not appear to have been subject of judicial definition. I see no reason to equate it with “national security”. That expression was discussed in Secretary of State v Rehman [2001] UKHL 47, where Lord Slynn said:
“There must be some possibility of risk or danger to the security or well-being of the nation which the Secretary of State considers makes it desirable for the public good that the individual should be deported…” (para 15) “Public security” to my mind is a broader concept. The earlier version of the manual referred in this connection to – “… national security matters, or crimes that pose a particularly serious risk to the safety of the public or a section of the public”
. The words “risk to the safety of the public or a section of the public” seem to me reasonably consistent with the ordinary understanding of “public security”. In the latest version of the manual, the utility of that description is reduced, because it is used for the second level, “public policy or public security”, without distinction between the two parts. “… national security matters, or crimes that pose a particularly serious risk to the safety of the public or a section of the public”. 3) The word “imperative”, as a distinguishing feature of the third level, seems to me to connote a very high threshold. The earlier version of the manual treats it as equivalent to “particularly serious”. In the latest version, the expression “particularly serious risk” is used for the second level. The difference between the two levels, that is, between “serious” and “imperative”, is said to be “one of severity”, but there is no indication why the severity of the offence in itself is enough to make removal “imperative”. 4) The same thinking is reflected in the examples of offences given in the manual. Both levels require a serious offence linked to a propensity to re-offend. The second “serious” level encompasses “a violent offence carrying a maximum penalty of 10 years”; the third “imperative” level requires not only a maximum penalty of 10 years but also an actual sentence of at least five years. It is not clear why the mere fact that a five year sentence has been imposed should make removal “imperative”. 5) Neither version of the Manual seems to me to give adequate weight to the distinction between levels two and three, or to the force of the word “imperative”. To my mind there is not simply a difference of degree, but a qualitative difference: in other words, level three requires, not simply a serious matter of public policy, but an actual risk to public security, so compelling that it justifies the exceptional course of removing someone who (in the language of the Preamble to the Directive) has become “integrated” by “many years” residence in the host state.[33]The last point inevitably overlaps with the matters relevant to the second principal issue, raised by the respondent’s notice. The interpretation of the “imperative grounds” test may take some colour from the context in which it is to be applied. If those intended to be protected are limited to European citizens, who have taken advantage of freedom of movement under the Treaty to become fully integrated into the society of the host country, then one would expect a very stringent test for removal. If on the other hand, this category extends to anyone who happens to have lived in the country for 10 years, lawfully or not, even if he has spent most of the time in prison, then a broader interpretation may be justifiable.[34]Accordingly, since it may become material when the matter is reconsidered by the AIT, I will comment also on the second issue.

The second issue – which level of protection?

[35]As has been seen, it was first claimed that LG had acquired a permanent right of residence as a result of five years’ residence, so that the second level of protection should apply. Before the AIT the emphasis shifted to a claim to the highest level of protection based on 10 years’ residence.[36]Mr Eicke submits that neither claim can be established. Regarding the second level, he says that LG does not have the right of permanent residence under regulation 15(1), because he has not resided in the United Kingdom “in accordance with these regulations”. The equivalent provision in the Directive, Article 16(1), requires that someone should have “resided legally” for five years in the host state. The word “legally”, Mr Eicke submits, is explained by the Preamble which refers to five years’ residence “in compliance with the conditions laid down in this Directive”. The Directive is concerned with the rights accruing to those exercising their rights of free movement in accordance with the EU Treaty. While LG has been in prison, he has not been exercising those rights, and has held no relevant status under the 2000 and 2006 Regulations. His possible status as a worker prior to his arrest in January 2000 is irrelevant, since there is nothing in the 2000 or 2006 Regulations to apply them retrospectively in this respect.[37]Mr Eicke submits that the same condition is to be read into the 10-year “imperative grounds” test under regulation 21(4). For this he has to overcome the problem that in regulation 21(4), unlike regulation 15(1), the reference to “residence” is unqualified. This reflects a similar difference between the corresponding parts of the Directive. Article 16(1), which confers the right to permanent residences, refers to Union citizens who have “resided lawfully” for five years in the host Member State. Article 28, which introduces the 10-year test, refers simply to “residence”, without any reference to lawfulness. However, Mr Eicke argues that here also a “purposive” construction requires account to be taken of the relevant part of the Preamble. If the purpose is to reward genuine integration based on long residence, it would make no sense to give special status to someone whose prolonged presence in the country was attributable solely to the seriousness of his crime.[38]The first part of the argument, relating to the five-year test, was not pursued before the tribunal, and we have heard no detailed argument on it. I am prepared assume, without deciding, that Mr Eicke’s interpretation is correct. The second part, relating to the 10-year test, presents more difficulty, because of the contrasting wording of the two regulations. The argument was not presented in this form to the tribunal. This may have been because in the earlier case of MF & VC, the tribunal had thought it obvious that time in a UK prison was residence in the UK. However, the revised version of the manual anticipated the argument by providing that the 10 years was to be taken “(excluding time spent in custody)”.[39]I have considerable sympathy for the submission, which would produce a more logical and coherent scheme. It would also seem consistent with the more flexible European approach to interpretation, which gives particular weight to the Preamble (see Halsbury’s Laws 4th Ed Vol 51 para 2.266; Clive Lewis, Remedies and the Enforcement of European Community Law p 15). However, it would not be right for us to seek to reach a concluded view on an issue which is not necessary for our decision, which was not argued at all before the tribunal, and on which even in this court we were referred to none of the relevant textbooks or authorities. Ultimately, of course, it is a matter of European law, on which a reference may in due course be required.

Conclusion

[40]On the arguments before the tribunal, I find it difficult to fault their reasoning. However, the argument before us, and the material now available, have shown the issues in a different light, which discloses errors in their approach. The case has also opened up wider issues of general importance and some difficulty, which are likely to arise in other cases. It will be difficult for the tribunal or the court to give clearer guidance, until the Secretary of State, who has primary responsibility under the Directive for determining issues of public policy and public security, has herself reached a coherent and settled view. Before this case, or any other case raising the same points, comes back before the tribunal, I hope that the Secretary of State’s representative will be more adequately briefed, and that the President, or his nominee, will have had an opportunity to give appropriate directions, to ensure that the issues are fully examined and argued before a suitably qualified panel.[41]In conclusion, I agree with the disposition proposed by Arden LJ and also with her final comment.

Lady Justice Arden :

[42]I have read with admiration the judgment of Carnwath LJ and I gratefully adopt his statement of the facts. I agree with him on the second issue, although I prefer to express no view on the question whether any, and, if so, what portion of any time spent in prison falls to be left out of account in determining how long a person has been resident in the United Kingdom for the purposes of Directive (“the Directive”) 2004/38/EC of the European Parliament and of the Council dated 29 April 2004 on the rights of citizens of the Union and their family members to move and reside freely within the territories of the Member States.[43]On the first issue, in my judgment, this matter should be remitted to the AIT for a fresh determination in accordance with Regulation 21(4), interpreted in the light of the Directive. In summary, my reasons, which I expand below, are as follows:(1) Regulation 21(4) must on general principles be interpreted so far as possible to have the same meaning as the equivalent words in Article 28(3) of the Directive;(2) As explained by Carnwath LJ, the Directive draws a distinction between “serious grounds of public security” and “imperative grounds of public security”;(3) The AIT have not considered the meaning of the regulations in the light of the Directive in that they have not quantified and taken into account the distinction between “serious grounds of public policy or public security” and “imperative grounds of public security”. (1). Regulation 21(4) must on general principles be interpreted so far as possible to have the same meaning as the equivalent words in Article 28(3) of the Directive[44]There is no doubt that Regulation 21 is designed to implement the corresponding provisions of the Directive. In those circumstances, it is well-established that it must be interpreted on a “see through basis”. As far as possible it must be interpreted so as to conform to the underlying Community law (see, for example Marleasing SA v La Comercial Internacional de Alimentacion SA [1990] ECR 1-4135). This duty arises even if the Directive has been correctly transposed. Accordingly, the court must interpret the expression “imperative grounds of public security” in Regulation 21(4) in the same way that the Court of Justice of the European Communities (“the Court of Justice”) would interpret that phrase in Article 28 of the Directive. (2). As explained by Carnwath LJ, the Directive draws a distinction between “serious grounds of public security” and “imperative grounds of public security”[45]There is no doubt that the Directive draws a distinction between serious grounds of public policy or public security and imperative grounds of public security. They must therefore bear different meanings. However, we have not had full argument on the distinction to be drawn. I have examined the French version of the Directive and refer to that below. In my judgment, the meaning of these words must be the subject of further argument in the AIT.[46]I must deal first with one point that arises. The Directive adds after the words "imperative grounds of public security" the words "as defined by Member States". I agree with Carnwath LJ that, in so far as that definition is to be by organs other than the courts, it must be found in an enactment not in a Home Office manual. At the moment, the definition is only in a manual. However, that does not mean that the expression "imperative grounds of national security" has no meaning. In the absence of definition in national law, the national courts, exercising their function as Community courts, must strive to give to those words the meaning which they have in Community law. To do this, the court must look at other language versions of the Directive.[47]Article 28 of the French version of the Directive is as follows:
“Article 28 Protection contre l’éloignement 1. Avant de prendre une décision d’éloignement du territoire pour des raisons d’ordre public ou de sécurité publique, l’État membre d’accueil tient compte notamment de la durée du séjour de l’intéressé sur son territoire, de son âge, de son état de santé, de sa situation familiale et économique, de son intégration sociale et culturelle dans l’État membre d’accueil et de l’intensité de ses liens avec son pays d’origine. 2. L’État membre d’accueil ne peut pas prendre une décision d’éloignement du territoire à l’encontre d’un citoyen de l’Union ou des membres de sa famille, quelle que soit leur nationalité, qui ont acquis un droit de séjour permanent sur son territoire sauf pour des raisons impérieuses d’ordre public ou de sécurité publique. 3. Une décision d’éloignement ne peut être prise à l’encontre des citoyens de l’Union, quelle que soit leur nationalité, à moins que la décision ne se fonde sur des motifs graves de sécurité publique défines par les États membres, si ceux-ci: (a) ont séjourné dans l’État membre d’accueil pendant les dix années précédents; ou (b) sont mineurs, sauf si l’éloignement est nécessaire dans l’intérêt de l’enfant, comme prévu dans la convention des Nations unies sur les droits de l’enfant du 20 novembre 1989.”
Protection contre l’éloignement (a) ont séjourné dans l’État membre d’accueil pendant les dix années précédents; ou (b) sont mineurs, sauf si l’éloignement est nécessaire dans l’intérêt de l’enfant, comme prévu dans la convention des Nations unies sur les droits de l’enfant du 20 novembre 1989.”

Protection contre l’éloignement

[48]Like the English version, the French text of the Directive uses different expressions for the concepts to be found in Article 28(2) and (3). Thus the French text confirms that there is a distinction between "serious grounds of public policy and public security" and "imperative grounds of public security". (It is also clear that public policy alone is no longer a relevant ground for ordering deportation once a person has been present for the purposes of the Directive for 10 years). The distinction which the French text draws is between "raisons impérieuses” and “motifs graves”. “Raisons impérieuses” is sometimes translated as “compelling reasons”. If that is the meaning which that expression bears, it would suggest that it is not enough, when dealing with protection at the highest level, to find that the reasons of public security are “compelling” (a meaning considered by Carnwath LJ at [32(5)] above). If this were so, imperative grounds of public security for the purposes of Regulation 21(4) would mean something more than compelling reasons.[49]As part of the process of interpretation the court may also need to consider whether there is any commonly accepted understanding as to the meaning of these words in other legal systems of the Member States. We have not been addressed on these matters and so it is not possible to attempt a meaning of the relevant words at this stage. If there were any real doubt the question might be suitable for a reference to the Court of Justice. (3). The AIT have not considered the meaning of the Regulations in the light of the Directive in that they have not quantified and taken into account the distinction between “serious grounds of public policy or public security” and “imperative grounds of public security”[50]The relevant paragraphs of the decision of the AIT are paragraphs 55 to 69. At paragraph 69 the Tribunal states:
“For the reasons we have given above we find that the respondent has met the evidential burden of showing that there are imperative grounds of public security for removing this appellant from the United Kingdom to Italy and we have found that the Tribunal’s decision in MG and VC above is not sufficiently clear authority to have established that the meaning of this phrase “imperative grounds of public security” entitles this appellant to remain in the United Kingdom given the seriousness of his offences and the continuing risk which we find has been identified by the probation officer in her report of 17 August 2006 and our conclusions about the evidence before us, which includes all the evidence not specifically referred to in the determination. We therefore dismiss the appeal against the decision to deport above for the reasons given.”
[51]In the paragraphs leading to this concluding paragraph, the tribunal concludes that there is a continuing risk that the appellant will reoffend in the future. The tribunal particularly relies on the probation report of Avril Harries dated 17 August 2006. It also relies on its impressions of the evidence which the appellant had given before it. Its conclusion was that the appellant had not faced up to the fact that he had committed a very serious assault with intent. In so doing, the tribunal must have rejected the explanations which the appellant gave of his remorse and hopes for the future recorded at [37] to [40] of the tribunal’s decision. The tribunal was aware that it had to consider whether there were "imperative grounds of public security". The tribunal noted that the Deputy President, Mr CMG Ockleton, had expressed a doubt as to the meaning of the phrase "imperative grounds of public security”. The tribunal expressed the view that if the meaning of the phrase was unclear to him then it was unable, given the serious risk which it had identified, to find that something more was required for the respondent to show before deportation could follow for someone resident in the United Kingdom as an EEA national for a continuous period of 10 years [64]. In short, the tribunal’s view was that, in the absence of clarification as to what the phrase meant, it proposed to find that what it had to do was to look at the appellant's convictions and whether there was a "substantial future risk" of reoffending [67]. They found that this was present and on that basis it came to the conclusion set out above.[52]It will be apparent from the above analysis of the tribunal's decision that the tribunal was unable to give any meaning to "imperative grounds of public security” which created a higher hurdle for the Secretary of State than “serious grounds” of public security. In those circumstances, there is a risk that the tribunal applied the wrong test. In my judgment, it is sufficient to find an error of law to find, as I do, that they expressed no view as to what the distinction from “serious grounds of public policy and public security” was. I have every sympathy for the dilemma in which the tribunal found itself but that does not absolve it of the duty of decision. I do not consider that I can say more than this because the proper meaning of the expression "imperative grounds of public security" has not been fully argued before this court. However, I am satisfied that it is not enough for the Secretary of State to submit that the decision was right in the result. In those circumstances, I see no option but that the matter has to go back to be fully argued in front of the tribunal.

Disposition

[53]For these reasons, I would remit this matter to the AIT. I would allow the appeal on that basis and dismiss the respondent’s notice. It will be for the AIT to decide what order is appropriate. The order for remission does not imply that a different order from that already made would necessarily be made when the matter is heard again by the AIT.

Lord Justice Mummery :

[43]I agree with the judgment of Carnwath LJ.

Cited in 13 later judgments

and 4 more of the most senior