HR (Portugal) v Secretary of State for the Home Department [2009] EWCA Civ 123

Case No C5/2008/2027[2009] EWCA Civ 123
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM & IMMIGRATION TRIBUNAL
[AIT No. IA/10970/2006]
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Tuesday, 10 th February 2009
Before
LORD JUSTICE PILLLORD JUSTICE GOLDRING
Between
HR (Portugal)AppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript 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)
Mr B Bedford (instructed by Sultan Lloyd Solicitors) appeared via video link for Appellant.. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED..
Judgment
[1]This is a renewed application for permission to appeal. A deportation order has been made against HR, the applicant. He is a Portuguese citizen, aged 31 years. He claims to have resided in the United Kingdom since at least 15 October 1997. He seeks to rely on provisions which impose a different test for deportation when a person has been has been resident for 10 years: regulation 21 of the Immigration (European Economic Area) Regulations 2006. He has a bad criminal record. The decision of the tribunal was that, applying other tests, including the five-year test, he was not entitled to stay. However, it was conceded on behalf of the Secretary of State before the tribunal that different considerations would apply if the ten-year period and test were applicable.[2]The application for permission was refused by Stanley Burnton LJ on paper in these terms:
“The decision to deport was made on 5 September 2006. At that date, the Applicant had not been in this country for 10 years. Indeed, on his own account, he was in Portugal in 1997/98 to perform his military service. Presence in this country after the date of the deportation order cannot and does not count as residence for the purposes of the 2006 Regulations. Thus the issue whether periods of imprisonment are to be excluded from the duration of residence does not arise. If it did, I should have granted permission to appeal, given the existing authorities, but I am strongly of the view that they are to be excluded. It would make nonsense of the Directive and the Regulations if the most serious crimes, punished by a period of custody exceeding 10 years, were of itself to affect the right of residence of the convicted person and prejudice the right of expulsion on public policy grounds. There is nothing in the other points raised. In particular, the Tribunal was not satisfied that the Applicant had any subsisting relationship with his partner or daughter, but was entitled to find that their relationship could continue in Portugal.”
[3]I make several comments following submissions by Mr Bedford, who, by video link, appears for the applicant today. The first is that in relation to the period 1997/1998 we do not make any finding of fact; that is not our function. We assume for present purposes, that is, for the question of leave, that residence did begin on the date claimed; that is, late in 1997. If that is so, a ten-year period would have been completed by late 2007, and certainly by the date relied on by Mr Bedford, which is early in 2008. We comment further that Mr Bedford has not pursued other grounds. The sole ground of appeal pursued, and on which leave is sought, is that the ten-year test should be applied; that is in issue having regard to criminal offences, and a period of imprisonment. We agree with Stanley Burnton LJ that it is appropriate to grant leave on the issue whether periods of imprisonment, and the applicant has had more than one of those, can count towards the 10-year period for the purpose of the test. We make no comment on the merits of the issue, though note the comment Stanley Burnton LJ has made.[4]The fresh point made, and it is unfortunate that it has only become clear this morning, is that the relevant decision to deport was not the decision taken in September 2006. The papers are poorly prepared. The court received a bundle of papers last night. The relevant point is not made in Mr Bedford’s skeleton argument by reference to what for present purposes is the critical document. Through no fault of Mr Bedford’s, the members of the court received his further skeleton argument only during the hearing. Mr Bedford has referred to regulation 21. 21(1) provides that:
“21. —(1) In this regulation a ‘relevant decision’ means an EEA decision taken on the grounds of public policy, public security or public health.”
EEA decisions are further defined in regulation 2(1), the definition paragraph.[5]A deportation order was made in September 2006, dated 5 September, and was made by reference to what was then Rule 364 of the Immigration Rules. Mr Bedford’s point is a short one; he refers to a further letter written on behalf of the proposed respondent on 5 February 2008:
“On 5 September 2006 you were issued with a notice of the decision to deport. Further to your appeal against the decision to deport, it was noted you during a substantial hearing, dated, 19 December 2007, that the Reason for Deportation letter … accompanying your Notice for Deportation letter, had not taken into account that at the time of your conviction your status was that of an EEA national exercising your treaty rights. It is for this reason, consideration has now been given to your liability to deportation as a Portuguese national, ie [an] EEA national. It has been decided that deportation is the appropriate course of action in this case. The reasons for this decision are set out below.”
Thus, submits Mr Bedford, the Home Office have recognised that the earlier deportation order was not valid. The 2006 Regulations should have been taken into account, and if the relevant order is that of early 2008, the legal point, open for argument, as to the relevance of custodial sentences does arise.[6]I refer to another document which is in the bundle very recently submitted. That is dated 19 January 1978. That is clearly a mis-type. It refers to the 2006 Regulations, and the date should be 19 January 2008. That is headed “Decision to Make a Deportation Order”. What is the relevant date, having regard to the need to apply the 2006 Regulations, is open to that extent. We note that Mr Bedford makes the further point, though he has produced no evidence to support it, that the decision dated 19 January 1978 was not served upon his client until very much later, so that he would wish to argue for an operative date later than January 2008 and, if necessary, may do so.[7]My Lord, Lord Justice Goldring, has helpfully pointed out that the date on the document may be, and almost certainly is, not the date of the order; though, reading it, that is the impression one might get. It is the date of birth, which we have elsewhere as being 19 January 1978. The document is misleading but it does appear that, whatever other dates are relevant for the purposes of the argument, 19 January 2008 is not a relevant date.[8]For the reasons I have given, I would grant permission to appeal in this case on the ground to which I have referred.

LORD JUSTICE GOLDRING: I agree.

Order

Application granted.