Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245

Case No C5/2014/1644[2015] EWCA Civ 1245
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Mr. Justice Foskett and Upper Tribunal Judge Eshun
[2014] UKAITUR DA011392012
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 3 December 2015
Before
LORD JUSTICE MOORE-BICKVice-President of the Court of Appeal, Civil DivisionLORD JUSTICE DAVISLADY JUSTICE SHARP
Between
SECRETARY of STATE for the HOME DEPARTMENTAppellantJACEK STRASZEWSKIRespondentC5/2015/1355IN THE COURT OF APPEAL (CIVIL DIVISION)ON APPEAL FROM THE UPPER TRIBUNAL(IMMIGRATION AND ASYLUM CHAMBER)Upper Tribunal Judge Conway[2015] UKAITUR DA002252014
Between
SECRETARY of STATE for the HOME DEPARTMENTAppellantDARIUS KERSYSRespondent
Ms Susan Chan (instructed by the Government Legal Department) for appellantMr. Richard Drabble Q.C. and Ms Gilda Kiai (instructed by Wilson Solicitors) for Mr. StraszewskiMr. Kersys appeared in person for in personHearing Hearing date : 21 st October 2015
JudgmentLord Justice Moore-Bick :Background
[1]These two appeals by the Secretary of State for the Home Department against decisions of the Upper Tribunal have been heard together because they raise similar questions concerning the application of Regulation 21 of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”).[2]Nationals of states making up the European Economic Area (“EEA nationals”) who have acquired a right of permanent residence in this country enjoy enhanced protection against deportation. The degree of protection varies in accordance with the period of residence. The present appeals concern nationals of Poland and Lithuania, each of whom has acquired a right of permanent residence, having lived in this country for over five years. Each has been convicted of a number of criminal offences, as a result of which the Secretary of State has decided that it would be appropriate to deport him. The question that arises for decision is whether that course is open to her. Regulation 21[3]The Regulations were made in order to implement Directive 2004/38/EC, sometimes known as the ‘Citizenship Directive’, but since they do not depart from the terms of the Directive in any significant respect, it is common ground that there is no need to refer to the Directive itself. In the Regulations an “EEA decision” includes a decision under the Regulations that concerns a person’s removal from the United Kingdom. Regulation 19(3)(b) gives the Secretary of State power to remove an EEA national if she has decided that his removal is justified on grounds of public policy, public security or public health, in accordance with regulation 21.[4]The material parts of Regulation 21 itself provide as follows: “21.— Decisions taken on public policy, public security and public health grounds(1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.(2) . . .(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) . . .(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles— (a) the decision must comply with the principle of proportionality; (b) the decision must be based exclusively on the personal conduct of the person concerned; (c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; (d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision; (e) a person’s previous criminal convictions do not in themselves justify the decision.(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of 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.” (a) the decision must comply with the principle of proportionality; (b) the decision must be based exclusively on the personal conduct of the person concerned; (c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society; (d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision; (e) a person’s previous criminal convictions do not in themselves justify the decision. Jacek Straszewski[5]Mr. Straszewski was born in Poland on 24th February 1987 and is therefore now a few months short of his 29th birthday. He came to this country with his mother in October 1998 when he was 11 and by the end of 2003 had acquired a right of permanent residence. On 9th June 2010, while drunk, he attacked another man with a broken glass, causing serious injuries to his face and neck. He later pleaded guilty to a charge of unlawful wounding. Subsequently, while on bail for that offence, together with another man he broke into a flat occupied by two young women with a view to stealing anything of value. When the occupants returned home they saw the door to the flat open and accosted the burglars. The two men repeatedly punched and kicked the women before making their escape. On 19th November 2010 Mr. Straszewski pleaded guilty to two counts of robbery and was sentenced to 42 months’ imprisonment. Subsequently, on 24th March 2011, he was sentenced to 15 months’ imprisonment consecutive in respect of the earlier offence of unlawful wounding. He was released from prison on 26th December 2012 and was immediately taken into immigration detention.[6]In the light of the Mr. Straszewski’s convictions the Secretary of State decided that his removal was in the public interest and was justified on the grounds of public policy and public security. She therefore made a decision to deport him. His appeal to the First-tier Tribunal was allowed on the grounds that he had resided in the United Kingdom for more than ten years and that a decision to remove him could not be taken except on imperative grounds of public policy or public security, as provided for in regulation 21(4). Despite the gravity of the respondent’s offending, the tribunal did not consider that requirement to be satisfied.[7]The Secretary of State appealed to the Upper Tribunal. Much of the tribunal’s decision is directed to the question of Mr. Straszewski’s period of lawful residence in this country, because that had an important bearing on the level of protection to which he was entitled. It held that he had not resided lawfully in this country for as long as ten years and was therefore entitled to only the lower level of protection provided for by regulation 21(3). That is not now in dispute. The tribunal therefore set aside the decision of the First-tier Tribunal and remade the decision. The question it had to decide was whether the Secretary of State’s decision to remove Mr. Straszewski was justified on serious grounds of public policy or public security. Having considered the nature of his offending and various reports directed to the risk of his further offending, including two from an independent psychiatrist, Dr. Joanna Dow, the tribunal concluded that he did not pose a serious threat of harm to the public and that his removal was not permitted by regulation 21(3). It also found that removal would involve a disproportionate interference with his right to respect for family and private life under article 8 of the European Convention on Human Rights. It therefore dismissed the appeal.[8]This is the Secretary of State’s appeal against the decision of the Upper Tribunal. Miss Chan submitted on behalf of the Secretary of State that the tribunal’s decision was flawed because it had failed to explain why in the light of Dr. Dow’s report the respondent did not pose a serious threat of harm to the public and because when reaching its decision it had failed to take into account the public interest in deterring other foreign nationals from offending or the need to reflect the public’s revulsion at the commission of serious crimes of the kind of which Mr. Straszewski had been convicted. She relied on the decision in RU (Bangladesh) v Secretary of State for the Home Department [2011] EWCA Civ 651 in support of her submission that factors of that kind ought to be taken into account when considering whether the removal of an offender pursuant to the Regulations is justified. In substance, she sought in that respect to assimilate the position of an EEA national to that of any other foreign criminal whose removal is required under section 32 of the UK Borders Act 2007.[9]Mr. Richard Drabble Q.C. for the respondent submitted that there was a fundamental difference between the principles underpinning section 32 of the UK Borders Act, which apply to foreign criminals generally, and those which underpin the Regulations applicable to EEA nationals. He submitted that the Directive and the Regulations are to be understood against the background of the right of free movement enshrined in the Treaties establishing the European Union and that factors such as deterrence and public revulsion, which are relevant when considering deportation under the UK Borders Act, have no part to play in a decision under the Regulations. He submitted that it was open to the Upper Tribunal in this case to reach the conclusion that Mr. Straszewski’s conduct did not provide serious grounds of public policy or public security sufficient to justify a decision to remove him. Darius Kersys[10]Darius Kersys is a national of Lithuania who came to this country in April 2004 and subsequently acquired a permanent right of residence. In January 2013 he was convicted of three offences of identity fraud, by which he and his wife used bank cards belonging to a vulnerable elderly neighbour whom they had befriended in order to obtain sums of money totalling about £112,000 from his bank account after his death. The sentencing judge described it as “ a mean-spirited and nasty piece of offending”, a sentiment which no doubt most people would share. On 21st January 2014 the Secretary of State decided to make a deportation order against Mr. Kersys under regulation 21. His appeal to the First-tier Tribunal was successful, notwithstanding that it was of the view that the public would regard his offences as “despicable”, and the Secretary of State’s appeal to the Upper Tribunal was dismissed. She now seeks to overturn the tribunal’s decision on the grounds that it failed to give any or adequate weight to the public’s adverse reaction to offending of this kind. The arguments deployed on either side were similar to those advanced in relation to Mr. Straszewski, although Miss Chan recognised that the offences committed by Mr. Kersys were less serious than those that had been committed by him. Deterrence and public revulsion[11]It is convenient to consider first the extent to which wider factors, such as the public interest in deterrence and the need to demonstrate public revulsion at the offender’s conduct, are factors that can properly be taken into account when deciding whether the removal of an EEA national who has acquired a permanent right of residence is justified on serious grounds of public policy or public security. RU (Bangladesh), on which Ms Chan placed some emphasis, was a case involving the deportation of a foreign criminal under section 32 of the UK Borders Act 2007. In such cases the statutory scheme envisages that the person facing deportation bears the burden of showing that his removal would not be in accordance with the law, usually because of the interference with his fundamental rights that it would entail. In such a case it is well established that the need to deter other potential wrongdoers and to reflect public revulsion at the offence in question are aspects of the public interest in deportation and as such are important factors for the decision-maker to take into account. Miss Chan submitted that they are equally important in a case falling within regulation 21. In my view, however, that fails to recognise the very different context in which the question of deportation arises.[12]One important purpose of the Citizenship Directive was to protect and support the Treaty right of free movement of nationals of Member States and, by extension, nationals of other EEA states. The origin and purpose of the Regulations are, therefore, both fundamentally different from those of section 32 of the UK Borders Act, which is directed to removing from this country aliens who have no right to be here other than in accordance with leave to remain granted by the Secretary of State. Leaving aside whatever protection against removal the European Convention on Human Rights may afford them, their position in law is inherently less secure than that of EEA nationals who are entitled to exercise Treaty rights. In a case where the removal of an EEA national would prima facie interfere with the exercise of his Treaty rights it is for the member state to justify its action. It is for this reason that I am unable to accept Ms Chan’s submission that in a case of the present kind the burden of showing that the decision is not in accordance with the law lies on the person who is to be deported.[13]Given the fundamental difference between the position of an alien and that of an EEA national, one would expect that interference with the permanent right of residence would be subject to more stringent restrictions than those which govern the deportation of nationals of other states. Moreover, since the right of free movement is regarded as a fundamental aspect of the Union, it is not surprising that the Court of Justice has held that exceptions to that right based on public policy are to be construed restrictively: see, for example Van Duyn v Home Office (Case 41/71) [1975] 1 C.M.L.R. 1 and Bonsignore v Oberstadtdirektor der Stadt Köln (Case 67/74) [1975] 1 C.M.L.R. 472.[14]Regulations 21(5)(b) and (d) provide that a decision to remove an EEA national who enjoys a permanent right of residence must be based exclusively on the personal conduct of the person concerned and that matters that do not directly relate to the particular case or which relate to considerations of general prevention do not justify a decision to remove him. On the face of it, therefore, deterrence, in the sense of measures designed to deter others from committing similar offences, has of itself no part to play in a decision to remove the individual offender. Similarly, it is difficult to see how a desire to reflect public revulsion at the particular offence can properly have any part to play, save, perhaps, in exceptionally serious cases. As far as deterrence is concerned, the CJEU has held as much in Bonsignore v Oberstadtdirektor der Stadt Köln.[15]Nonetheless, there have been instances in which deterrence and public revulsion have played a part in the decision. In R v Bouchereau (Case 30/77) [1978] 1 Q.B. 732 the defendant, a French national working in England, was convicted for a second time of possessing dangerous drugs (small quantities of amphetamine, cannabis and LSD). The magistrate was minded to recommend him for deportation, but he argued that it would be unlawful to deport him as he was a migrant worker exercising Treaty rights. The magistrate referred a number of questions to the European Court, the second of which was whether the provision that previous convictions do not in themselves justify a decision to deport, now to be found in regulation 21(5)(e), meant that such convictions were relevant only as demonstrating a propensity to offend in the future.[16]In his Opinion Advocate-General J-P Warner agreed with a submission of the UK government that, in exceptional cases where the personal conduct of an alien has been such that, while not necessarily evincing a clear propensity on his part to re-offend, it has caused such deep public revulsion that public policy requires his removal. The court dealt with the question as follows:
“28. The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy. 29. Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy. 30. It is for the authorities and, where appropriate, for the national courts, to consider that question in each individual case in the light of the particular legal position of persons subject to Community law and of the fundamental nature of the principle of the free movement of persons.”
[17]In my view the clear emphasis of that passage is on the fundamental nature of the principle of free movement and the need to identify a present threat to the requirements of public policy, while recognising that there may be cases in which past conduct alone may suffice. However, paragraph 29 must be read and understood in the context of the court’s answer to the third question, namely, whether “public policy” includes reasons of state in circumstances where no breach of the peace or public order is threatened. The court recognised that public policy may vary from country to country and may differ under different circumstances and at different times. National authorities must be allowed a degree of discretion in how they apply it within the limits imposed by the Treaty. The court then concluded with an endorsement of the underlying principles in these terms:
“35. 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.”
This seems to me to emphasise the need to look to the future rather than the past in all but the most exceptional cases and to emphasise the importance of the right of free movement. I agree with Mr. Drabble Q.C. that one can detect in the decision an understandable element of pragmatism in the recognition of the right to deport those who have committed the most heinous of crimes which is at odds with the principles of the Directive.[18]Bouchereau was considered by this court in R v Secretary of State for the Home Department ex parte Marchon [1993] 2 C.M.L.R. 132. In that case a Portuguese doctor living and working in this country was convicted of conspiring to import 4½ kg. of heroin, in respect of which he was sentenced to 11 years’ imprisonment. The Secretary of State gave notice that he intended to make a deportation order against him, which was challenged on the grounds that, since there was no risk of further offending, he could not be removed on serious grounds of public policy or public security. The court considered that the case fell within the scope of the observations made by the Advocate-General in Bouchereau and within the final sentence of paragraph 29 of the court’s judgment in that case. It described the offence as “very serious and horrifying” and as being “an especially horrifying offence, and repugnant to the public” because it had been carried out by a doctor. It therefore held that the appellant was liable to deportation and dismissed his appeal.[19]The role of deterrence was further considered in Nazli v Stadt Nürnberg (Case C-340/97) which concerned a Turkish worker who had been convicted of playing a minor role in dealing in 1,500 gm. of heroin, in respect of which the court had imposed a suspended sentence of 21 months’ imprisonment. The court considered that such a sentence was justified by the fact that the offence was an isolated lapse and unlikely to be repeated. The question whether it was open to the authorities to deport the offender solely in order to deter other foreigners from committing similar offences was referred to the Court of Justice. The court held that Community law precluded the expulsion of a national of a Member State for the purpose of deterring other foreign nationals without taking account of the personal conduct of the offender or of the danger which that conduct represented and that the same applied to nationals of Turkey under the Association Agreement between the EEC and Turkey. I can see some force in Mr. Drabble’s submission that the decision in Marchon can no longer be regarded as representing Community law.[20]Other decisions were drawn to our attention in which the courts have held that a particular EEA national may be deported because the nature of his offence is such as to bring the case within regulation 21, but they all turn to some degree on their own facts. The authorities to which I have referred support the general proposition that great importance is to be attached to the right of free movement which can be interfered with only in cases where the offender represents a serious threat to some aspect of public policy or public security. Save in exceptional cases, that is to be determined solely by reference to the conduct of the offender (no doubt viewed in the context of any previous offending) and the likelihood of re-offending. General considerations of deterrence and public revulsion normally have no part to play in the matter. In these respects the principles governing the deportation of foreign criminals in general differ significantly from those which govern the deportation of EEA nationals who have acquired a permanent right of residence. This conclusion is, in my view, supported by the decision of the CJEU in I v Oberbürgermeisterin der Stadt Remscheid [2012] Q.B. 799, a case concerning the meaning of the expression “imperative grounds of public security” to which I shall refer in more detail a little later. In that case the court laid some emphasis on the need to consider the personal conduct of the offender and his propensity to re-offend. Jacek Straszewski – the tribunal’s decision[21]The offences committed by Mr. Straszewski were undoubtedly serious, but viewed in the wider context I do not think that they can be regarded as of exceptional gravity or as being the kind of offences that would cause genuine revulsion among members of the public. When sentencing him for the robberies, the judge noted that both men had punched the women several times over a period of about five minutes, so the attack was both serious and sustained. It was also unprovoked and the offences were aggravated by having been committed at night by two men acting together. The unlawful wounding had also been of an unpleasant kind. Serious though the offences were, however, it is regrettably not difficult to imagine offending of a much more serious kind.[22]Our attention was not drawn to any case in which the CJEU has considered the kind of conduct that is likely to be sufficiently serious to justify deportation of an EEA national who enjoys a permanent right of residence but has not lived in the member state concerned for a period of at least ten years. Ms Chan did, however, draw our attention to the decision in I v Oberbürgermeisterin der Stadt Remscheid, in which the claimant had been convicted of multiple offences of sexual abuse, sexual coercion and rape of a 14 year old girl in respect of which he had been sentenced to 7½ years’ imprisonment. The CJEU was asked to decide whether the expression “imperative grounds of public security” referred only to conduct which threatened the security of the state itself, its population and the survival of its institutions or was broader in scope.[23]In giving its judgment the court emphasised that member states retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, but that the requirements of the Directive must still be interpreted strictly. Criminal offences which constitute a particularly serious threat to one of the fundamental interests of society or which pose a direct threat to the calm and physical security of the population may fall within the concept of “imperative grounds of public security”, as long as the manner in which such offences were committed discloses particularly serious characteristics. However, the court also emphasised that even then deportation will not be justified unless the conduct of the person concerned represents a genuine, present threat affecting one of the fundamental interests of society, which normally implies that he has a propensity to act in the same way in the future (see paragraphs 17-30).[24]I do not find that case to be of great assistance in determining whether in any individual case there are “serious” grounds of public policy or public security sufficient to justify deportation. It is clear, as the court confirmed, that the expression “imperative grounds of public security” creates a considerably stricter test than merely “serious” grounds, but since the application of the test is primarily for the member state concerned, which must take into account social conditions as well as the various factors to which the Directive itself refers, the question is likely to turn to a large extent on the particular facts of the case. It would therefore be unwise, in my view, to attempt to lay down guidelines. In the end, the Secretary of State must give effect to the Regulations, which themselves must be interpreted against the background of the right of free movement and the need to ensure that derogations from it are construed strictly. In that context it is worth noting that even in a case where it is considered that removal is prima facie justified on imperative grounds of public security, the decision-maker must consider, among other things, whether the offender has a propensity to re-offend in a similar way (judgment, paragraph 30).[25]In the present case the Secretary of State sought to justify Mr. Straszewski’s deportation on serious grounds of public policy or public security. “Public policy” for these purposes includes the policy which is reflected in the interest of the state in protecting its citizens from violent crime and the theft of their property. These are fundamental interests of society and therefore, although regulation 21(3) does not speak in terms of the risk of causing harm by future offending, in a case of this kind that is the risk which the Secretary of State is called upon to assess when considering deportation. That requires an evaluation to be made of the likelihood that the person concerned will offend again and what the consequences are likely to be if he does. In addition, the need for the conduct of the person concerned to represent a “sufficiently serious” threat to one of the fundamental interests of society requires the decision-maker to balance the risk of future harm against the need to give effect to the right of free movement. In any given case an evaluative exercise of that kind may admit of more than one answer. If so, provided that all appropriate factors have been taken into account, the decision cannot be impugned unless it is perverse or irrational, in the sense of falling outside the range of permissible decisions.[26]In the present case the tribunal had before it evidence in the form of a report prepared by the National Offender Management Service (“NOMS”) in January 2012 and the two reports of Dr. Dow, to which I have referred. The first of those reports is dated 28th April 2013. In it Dr. Dow described Mr. Straszewski as showing signs of dissocial personality disorder demonstrated by a low tolerance to frustration, a low threshold for the discharge of aggression which manifested itself in violence and a callous lack of concern for the feelings of others. In her view he also exhibited a reduced capacity to experience guilt or profit from experience. At that time she assessed his risk of general re-offending within a year of being returned to the community as medium, but that if he got a job, avoided his anti-social peer group and stopped the excessive use of alcohol and the use of illegal drugs, the risk of re-offending would be significantly reduced. Dr. Dow rated the risk of serious harm resulting from re-offending as medium (“serious harm” for that purpose meaning life-threatening harm or harm from which recovery is difficult or impossible). She thought that the level of risk depended to a considerable extent on whether he could keep off alcohol and drugs. His attitude caused her concern, because, despite having completed a course on victim awareness, it appeared to have shifted only minimally.[27]It has to be said that the picture painted by Dr. Dow at that time was not very promising and by the time she came to write her second report in December 2013 she was not a great deal more optimistic. She still thought that Mr. Straszewski posed a medium risk of re-offending (defining “medium” for this purpose as involving the existence of identifiable indicators of risk of harm such that the offender has the potential to cause harm, but is unlikely to do so unless there is a change in circumstances, such as a loss of accommodation or a lapse back into drug or alcohol misuse). Her assessment of the risk of causing serious harm also remained medium, but she was encouraged to see some improvement in his ability to reflect on the effects of his crimes and to show a degree of empathy that had been lacking on the previous occasion.[28]As the tribunal noted, the root cause of Mr. Straszewski’s offending was his misuse of drugs and alcohol. In the NOMS report he was assessed as presenting a high risk of re-offending, but the report is fairly superficial by comparison with those of Dr. Dow and the Secretary of State had not put forward any report to challenge her conclusions. The tribunal clearly considered Dr. Dow’s two reports with care and thought that her opinion that Mr. Straszewski was beginning to show some insight into his problems was reinforced by what he had said in evidence. By the time of its decision he had an offer of a job and could expect to receive more support from his mother and other members of his immediate family. In those circumstances it was, in my view, open to the tribunal to find that he did not represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society to justify his deportation. I reach that conclusion without having regard to the length of time Mr. Straszewski has lived in this country, the degree of his social and cultural integration and the extent of his links with Poland, matters that under regulation 21(6) must be taken into account before any decision to deport him is made. It is relevant to note, however, that he has spent most of his formative years in this country, speaks good English and cannot read or write Polish.[29]Ms Chan submitted that even if the tribunal’s decision was capable of being justified, it had failed to give adequate reasons for coming to its conclusion and that its decision should be set aside on that ground alone. I am unable to accept that argument. It is clear that the tribunal concentrated, correctly in my view, on the risk of future harm to the public as a result of re-offending. It is true that it did not refer expressly to some of the matters on which the Secretary of State had relied in her letter setting out the reasons for making a deportation order against Mr. Straszewski, but all the factors tending to indicate that he posed a sufficiently serious risk to public policy to justify his deportation were set out in Dr. Dow’s reports. The tribunal cannot have overlooked them, since it considered those reports with care. In the end the reasons for its decision are clear and can be stated quite shortly: although the offences committed by Mr. Straszewski were serious, they were not so serious, and the risk that he would cause serious harm to members of the public through re-offending was not so great, that they justified his deportation. I would therefore dismiss the Secretary of State’s appeal in this case. Darius Kersys – the tribunal’s decision[30]The Secretary of State submitted that the tribunal wrongly failed to take into account public revulsion as a factor that was relevant to an assessment of Mr. Kersys’s conduct for the purposes of deciding whether there were serious public policy grounds justifying his deportation. She also submitted that it failed to recognise that such conduct and the natural public reaction to it are relevant to the assessment of cultural and social integration required under regulation 21(6). As far as the latter question is concerned, I can see that some kinds of conduct, whether exciting public revulsion or not, might be evidence of a lack of cultural and social integration, but regrettably I do not think that that can be said of conduct of the kind in which Mr. Kersys and his wife indulged in this case. The offences did not bear the hallmark of a different cultural background; they could just as easily have been committed by other dishonest members of society. The case of Onuekwere v Secretary of State for the Home Department (Case C-378-12) [2014] 1 W.L.R. 2420, on which Ms Chan relied, does not in my view assist. It was concerned not with the expulsion of an EEA national, but with the question whether a person living with an EEA national could count periods spent in prison towards the five year period of residence necessary to qualify for a permanent right of residence. The CJEU certainly expressed the view that the imposition of a prison sentence demonstrated a failure to comply with the values expressed by society of the host state, but that was in the context of deciding whether time spent in custody counted as a period of residence for the purposes of the Directive. It is not surprising that the court considered that to hold that it did so would run counter to the aim of the Directive in establishing integration of a kind that is intended to be reflected in a permanent right of residence. I do not think the decision sheds any light on the requirements that must be satisfied before those who have acquired a permanent right of residence can be deported.[31]For the reasons given earlier, I do not think that public revulsion at the offender’s conduct has any part to play in deciding whether there are sufficiently serious grounds of public policy to justify his deportation, save in exceptional cases of a kind in which failure to remove the offender might itself tend to undermine confidence in the state’s ability to administer justice. This case falls far short of that. However, even if it were a factor to be taken into account in this case, I find it impossible to accept that a rational tribunal could have come to any other conclusion. Although the offences for which Mr. Kersys was sent to prison did not represent his first brush with the law, his previous convictions must have been of a modest kind, since the judge when passing sentence was content to treat him as a man of good character. Moreover, a report made by NOMS concluded that he posed a low risk of further offending and a low risk of causing harm to the public. In those circumstances I find it difficult to understand how behaviour, although properly described as “mean-spirited”, “nasty” and “despicable”, could possibly be said to represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society to justify overriding the right of free movement on which the permanent right of residence rests.[32]For those reasons I would also dismiss the appeal in the case of Mr. Kersys.

Lord Justice Davis :

[33]I agree.

Lady Justice Sharp :

[34]I also agree.

Cited in 6 later judgments