Secretary of State for the Home Department v Dumliauskas & Ors [2015] EWCA Civ 145

[2015] EWCA Civ 145

Case No C5/2014/0277

Case No C5/2013/2956

Case No C5/2014/0522

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday 26 th February 2015

Before

LORD JUSTICE JACKSON

LORD JUSTICE FLOYD

SIR STANLEY BURNTON

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellant

ARTURAS DUMLIAUSKASRespondents

LUKASZ WOZNIAKRespondent

ME (NETHERLANDS)Respondent

(Transcript of the Handed Down Judgment of

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Karen Steyn QC and Paul Greatorex (instructed by the Treasury Solicitor) for Secretary of State

Hugh Southey QC and Glen Hodgetts (instructed by Wilson Solicitors LLP) for AD

Hugh Southey QC and Glen Hodgetts (instructed by South West Law Solicitors) for ME

for LW did not appear and was not represented

Hearing Hearing dates: 20, 21 January 2015

Judgment

Sir Stanley Burnton:

Introduction

[1]The Citizenship Directive (Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States) (“the Directive”), brought into force in the UK by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (“the Regulations”), confirms the right of free movement and of residence of EU citizens within the Union, and subjects that right to certain conditions. However, it also confers power on Member States to expel nationals of other Member States. These appeals concern the attempts by the Secretary of State to exercise the powers conferred by Articles 27 and 28 of the Directive, implemented by Regulation 21 of the Regulations. It has not been suggested that the Regulations do not faithfully transpose the provisions of the Directive, and for convenience I shall in general refer to the provisions of the Directive rather than those of the Regulations.

[2]Of the present Respondents, AD and ME have and had no right of residence conferred by the Directive. Before the Upper Tribunal, the Secretary of State conceded that LW did have a permanent right of residence, but reserved the right to withdraw her concession if her appeal to this Court is successful. Each of the Respondents was convicted of crimes for which prison sentences were imposed. In each case, the Secretary of State was of the opinion that his conduct did “represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” (Article 27.2) sufficient to justify his expulsion. The Upper Tribunal in each case came to the same conclusion, and in the case of LW was further satisfied that the requirement of serious grounds of public policy or public security (Article 28.2) was satisfied, but rejected the Secretary of State’s case on the ground that, having regard to the better prospects of the rehabilitation of the Respondent in question if he remained in this country, it would be disproportionate to expel him.

[3]In each case, the Secretary of State has appealed to this Court on the ground that the relative prospects of rehabilitation are irrelevant in the case of someone who has no permanent right of residence in this country. She also contends that the Tribunal gave manifestly excessive weight to rehabilitation, and that the evidence before the Tribunal did not justify its finding that rehabilitation was more likely in this country rather than the country of nationality.

[4]This is my judgment on the issues raised in these appeals. The facts and the decisions below AD

The facts and the decisions below

[5]AD is a citizen of Lithuania. He was born on 4 October 1965. He came to this country in 1998. He had served in the army of the USSR. The First-tier Tribunal summarised his criminal record as follows: Whilst in the United Kingdom the appellant amassed a criminal record comprising one offence against [the] person, twelve theft and kindred offences, one offence relating to police, courts, prisons, one drugs offence, 6 firearms and offensive weapons offences. On 8 June 2010 the appellant was convicted of robbery and sentenced to three and a half years’ imprisonment concurrent with 2 counts of theft in respect of going equipped to steal.

[6]At the date of the First-tier Tribunal decision, AD remained in custody.

[7]As a result of his service in Afghanistan, AD had become addicted to heroin. His offending was connected with his addiction: essentially, he said that he committed his offences to obtain money for drugs.

[8]There was a consultant psychiatrist’s report before the Tribunal. She assessed AD as suffering from some residual symptoms of post-traumatic stress disorder. In her opinion, he suffered from mental and behavioural disorders due to the use of opioids. He met the criteria for dependence syndrome. He was currently on a clinically-supervised maintenance or replacement regime, i.e. controlled dependence. She noted that AD had been abstinent from heroin since his detention in 2010 “although this [was] in a highly controlled environment”. Similarly, he was abstinent from alcohol in his protected environment. She graded his risk of reoffending in the next year if returned to the community in the UK as medium, and his risk of serious offending as low. She thought that if he remained free of illicit substances and drank alcohol in moderation, obtained gainful employment, appropriate accommodation and continued to engage with healthcare professionals, his risk of reoffending would be significantly decreased.

[9]There was also a probation officer’s letter, which referred to the restrictions that would apply if AD were released, which would include requirements to attend appointments with the Community Mental Health Team, co-operation with care or treatment, and the requirement to attend appointments with the local Drug Treatment Agency and to co-operate with their recommended care or treatment. Similarly, he would be required to attend appointments with an alcohol treatment provider and to co-operate with their recommended care or treatment. AD told the Tribunal that he would comply with such conditions if he were released.

[10]The Tribunal found that AD was “genuinely contrite and genuinely determined to rehabilitate himself – despite his previous relapses.”

[11]The Tribunal also found that AD, who had scarcely worked while in the UK, had not established that he was integrated into society in the United Kingdom. It stated: The appellant because of his drug addiction has throughout his period in the United Kingdom effectively lived on the fringes of society committing regular offences to fuel his drug addiction – and cannot be regarded as having integrated into United Kingdom society in any meaningful way.

[12]AD’s family connections in the UK were weak. He has a son and grandson here, but he had very limited contact with them. AD said that his son had not visited him in prison for 1½ years. He was single. His mother and sister are in Lithuania.

[13]Because of the risk of his relapse, the Tribunal found that his conduct represented a present threat. Accordingly, the precondition for his removal under Art 27.2 and Regulation 19(3) was satisfied.

[14]In these circumstances, the Secretary of State was entitled to remove AD provided she satisfied the test of proportionality. On this, the First-tier Tribunal was satisfied that he was “genuine in his determination to rehabilitate – and has aspects of his physical medical condition and the desire to spend time with his grandson, as factors encouraging rehabilitation”. There were “reasonable prospects of believing that the prospects of rehabilitation of the appellant in the United Kingdom are substantial”. No evidence had been put before the Tribunal of the prospects of rehabilitation in Lithuania. Paragraph 132 of the Tribunal’s determination contains the substance of its decision:

“We also emphasise that the existence of a present threat affecting the fundamental interest of society would very substantially diminish if the appellant did not relapse and availed himself of the supportive rehabilitative programmes which will be available. We reiterate that there is no indication that any such rehabilitative program would be available in Lithuania. We accept that Lithuania is an EEA country and that appropriate medical treatment would be available for the appellant in Lithuania. There is, however, no evidence that the Lithuanian authorities would have either the capacity or the interest to put in place the rehabilitative programme referred to in the letter from the appellant’s Probation Officer.”

[15]On this basis, the Tribunal found that the Secretary of State’s decision to remove AD did not comply with the requirement of proportionality, and it allowed his appeal.

[16]The Secretary of State appealed to the Upper Tribunal. In her application for permission to appeal, she contended that the relative prospects of rehabilitation are irrelevant to the assessment of proportionality in the case of someone who does not have the permanent right of residence under the Regulations and the Directive. She also contended that the First-tier Tribunal had erred in law in placing manifestly undue weight on the relative prospects of rehabilitation, and that the Tribunal had wrongly placed an onus of proof on the Secretary of State as to the availability of support for AD in Lithuania.

[17]The Upper Tribunal held that the relative prospects of rehabilitation in the UK and in Lithuania were a factor relevant to the assessment of proportionality; accordingly the First-tier Tribunal had not erred in taking it into account. The Upper Tribunal summarised its conclusion in paragraph 31 of its determination: 31. The negative impact of removal on rehabilitation will of course not always be a decisive factor. We accept that the impact will be greater in the case of integrated EU citizen but we do not accept that it is a factor not to be taken into account when dealing with a person such as the appellant who has been in this country for a number of years and has only limited ties with his country of origin as the panel found. While the Court of Appeal in Essa noted that the ECJ had not adopted the suggestion in the advocate general’s opinion that a decision maker should state precisely in what way the decision did not prejudice the offender’s rehabilitation no doubt the panel would have been assisted by some material on the matter. We are not satisfied that the panel materially misdirected itself in commenting on the absence of material. It may be that not every panel would have reached the same decision as we have said did have the benefit of hearing from the appellant and assessing the evidence with very great care. The panel did not reach this decision lightly. In the circumstances of this case we are not persuaded it materially misdirected itself. As it noted in paragraph 134 of its decision this is very likely to be the final opportunity of the appellant to demonstrate that he can take the advantage of the opportunity he has been offered. ME

[18]ME is of Somali origin, but has Dutch nationality. He said that he came to this country in 2002. He has a wife and children here, but he was separated from his wife. He suffers from schizophrenia. At the date of the First-tier Tribunal’s determination, he was detained in a mental hospital.

[19]In March 2010 he was convicted of arson (causing damage to property by fire and being reckless as to the danger to the life of others). The circumstances were set out in paragraph 5 of the determination of the First-tier Tribunal: On 27 October 2009, while he was a voluntary patient at a mental health unit, he started a fire in his room. The sentencing judge noted that he had set a fire in a hospital where he was a voluntary patient and did so at night when other residents were in bed. Fortunately the fire alarms alerted staff. The fire he lit caused considerable damage to the building and the cost of repairing the damage was great and the building had to be evacuated for several weeks. The patients, whose lives were put at risk; in particular those who had to be assisted by the fire service, were taken to hospital for treatment. The judge noted he had put at risk the lives of staff who had to deal with the situation and its consequences and that he had put at risk the fire officers who attended. The sentencing judge went on to say:

“I accept that this was not directed towards any individual apart from yourself and that your purpose was to harm yourself only but the risk to others that you created was huge …. I am satisfied that there is a significant risk of you causing serious harm to others by committing further specified offences in the future and that I must sentence you as a dangerous offender. A life sentence is not appropriate. I am persuaded that an extended sentence is sufficient to ensure that you are under the control of the criminal justice agencies for a significant period of time and that in your case that will be sufficient to protect the public from serious harm.” “I accept that this was not directed towards any individual apart from yourself and that your purpose was to harm yourself only but the risk to others that you created was huge …. I am satisfied that there is a significant risk of you causing serious harm to others by committing further specified offences in the future and that I must sentence you as a dangerous offender. A life sentence is not appropriate. I am persuaded that an extended sentence is sufficient to ensure that you are under the control of the criminal justice agencies for a significant period of time and that in your case that will be sufficient to protect the public from serious harm.”

[20]The First-tier Tribunal summarised the decision of the Secretary of State at paragraphs 6 and 7 of its determination: 6. The respondent said at paragraphs 14 and 15:14. The sentence is a clear indication that the sentencing judge considered that you posed a continuing risk to the public.

15. You have been diagnosed with schizophrenia. You are currently complying with your anti psychotic medication Palideridone Palmitate four weekly depot and 10mg Olanzapine daily and your behaviour is more settled. However it is noted that in the past there have been concerns about your compliance with medication in the community and that this has hampered your progress and stability. Your illness is of a nature to warrant you liable to detention in hospital on the basis of the relapsing nature of the mental illness and the potential risk to others as a result of this. Should you in future discontinue your medications without correct medical supervision it remains likely that you will relapse and the public would be vulnerable to the risk of you reoffending. 7. For the above reasons the respondent decided it was not reasonable to leave the public vulnerable to the risk of him reoffending in the event that he suffered a relapse in his mental state for any reason. Given the nature of the offence he committed and the threat that he posed to society, the respondent considered that even if he had permanent residence as a result of five years’ continuous residence in the United Kingdom, the requirement of serious grounds of public policy to be shown to justify the appellant’s deportation would have been met. 14. The sentence is a clear indication that the sentencing judge considered that you posed a continuing risk to the public. 15. You have been diagnosed with schizophrenia. You are currently complying with your anti psychotic medication Palideridone Palmitate four weekly depot and 10mg Olanzapine daily and your behaviour is more settled. However it is noted that in the past there have been concerns about your compliance with medication in the community and that this has hampered your progress and stability. Your illness is of a nature to warrant you liable to detention in hospital on the basis of the relapsing nature of the mental illness and the potential risk to others as a result of this. Should you in future discontinue your medications without correct medical supervision it remains likely that you will relapse and the public would be vulnerable to the risk of you reoffending. 7. For the above reasons the respondent decided it was not reasonable to leave the public vulnerable to the risk of him reoffending in the event that he suffered a relapse in his mental state for any reason. Given the nature of the offence he committed and the threat that he posed to society, the respondent considered that even if he had permanent residence as a result of five years’ continuous residence in the United Kingdom, the requirement of serious grounds of public policy to be shown to justify the appellant’s deportation would have been met.

[21]The substance of the decision of the First-tier Tribunal is to be found in paragraph 103: This appeal has been argued before us on the basis that the appellant is someone who should be allowed to remain in the United Kingdom subject to the requirements of the mental healthcare professionals looking after him and should he do so this would result in a low risk of harm to others. This we have been unable to accept and consequently while the respondent’s decision would interfere with his family life in the United Kingdom as described in Diane Jackson’s report, his removal is justified on protection grounds. The appellant is currently detained on a notional Section 37 Mental Health Act 1983 order. It has not been argued that he cannot be removed while subject to an order under the Mental Health Act.

[22]Accordingly, the First-tier Tribunal dismissed ME’s appeal against the Secretary of State’s decision to remove him.

[23]ME appealed to the Upper Tribunal. It held that the First-tier Tribunal had erred in law in two respects, in its consideration of rehabilitation and the sufficiency of reasons given about the impact of his deportation on his children. It set aside the decision. For present purposes, it is necessary to refer to what was said about rehabilitation:14. We now turn to the principal ground where we find an error of law, which is Point 3. It was accepted by Mr Hibbs that neither the Secretary of State nor the panel had considered whether the prospects of the appellant’s rehabilitation would be promoted or diminished by his deportation. One suspects that this was because submissions and citation of authority had not been directed to the issue. We sympathise with the panel for failing to consider it in those circumstances. Nevertheless, the decision of the Court of Appeal in R ota of Daha Essa v UT

[2012] EWCA 1718

, 21 December 2012 at [10], [12], and [16] indicates there is now a duty on the tribunal to consider this issue whether raised in the appeal or not, and an awareness of the duty should have followed the decision of the Court of Justice in C-145/09 Tsakouridis 23 November 2010 at [50].

15. Whilst we recognise that there may be force in Mr Hibb’s submission that the appellant has not availed himself of the opportunity to rehabilitate himself to date, we conclude that it cannot be said that consideration of this issue would make no difference to the outcome:- i) There was material in both Dr Taylor’s principal and supplementary report of 2 October 2012 to the effect that the appellant’s family ties, his visits to his children, his contact with his wife and his continuity of treatment in the UK were beneficial to his prospects of remaining symptom free and continuing with his medication. ii) Ms Jackson makes similar points at paragraphs 5.7 and 5.9 of her report. iii) His behaviour appears to have been better since his transfer to the Wickham Unit near his family. iv) The appellant has in addition a brother and a cousin in the UK and claims to have no relatives or family or other ties in the Netherlands. v) The appellant has remained in the UK for 10 or 11 years now and there is no evidence that he has returned to the Netherlands since his wife and children came to the UK in 2004. vi) His social links and support systems therefore all appear to be in the UK. i) There was material in both Dr Taylor’s principal and supplementary report of 2 October 2012 to the effect that the appellant’s family ties, his visits to his children, his contact with his wife and his continuity of treatment in the UK were beneficial to his prospects of remaining symptom free and continuing with his medication. ii) Ms Jackson makes similar points at paragraphs 5.7 and 5.9 of her report. iii) His behaviour appears to have been better since his transfer to the Wickham Unit near his family. iv) The appellant has in addition a brother and a cousin in the UK and claims to have no relatives or family or other ties in the Netherlands. v) The appellant has remained in the UK for 10 or 11 years now and there is no evidence that he has returned to the Netherlands since his wife and children came to the UK in 2004. vi) His social links and support systems therefore all appear to be in the UK.

[24]His appeal then came before the Upper Tribunal for the substantive hearing. On this occasion, counsel for the Secretary of State accepted that rehabilitation was a factor to be considered in the assessment of proportionality.

[25]The Upper Tribunal set out ME’s history in the United Kingdom: 17. ………. November 2004-April 2005: admitted to hospital having self-harmed and was treated for depression and psychotic symptoms. September 2006-February 2007: arrested for assault and subsequently detained in hospital pursuant to s.2 Mental Health Act 1983. On 30 December 2006 he set fire to a tee shirt in his bedroom. Discharged on oral anti-psychotic medication. August 2007 to June 2008: visited Somalia with relatives. 7 July 2008-11 December 2008: detained in mental hospital after having attempted to kill himself. Demonstrated aggressive and dis-inhibited behaviour. Treated with anti-psychotic medication and diagnosis on discharge was psychotic depression with vulnerability for intense emotional instability with a differential diagnosis of paranoid schizophrenia. 18 December 2008-2 June 2009: after a short period back in the community he was re-detained in mental hospital after self-harming and violent and destructive behaviour. 24 December he set fire to a jumper in his room stating he intended to damage hospital property. Diagnosed with paranoid schizophrenia on discharge into the community with community mental health follow up. June-October 2009: living in the community. He indicated shortly after release that he refused to take his medication. The treating psychiatrist considered that this did not lead him to become mentally unwell but there was evidence of personality problems and considerable family and social difficulties causing him to display behaviour that was consistent with symptoms of paranoid schizophrenia. October 2009-November 2009: Informal admission to mental hospital where he complained of hearing voices. He was no longer on medication and an opinion was given of personality disorder rather than psychosis. It was during this admission that he set light to his bed with a cigarette lighter. He was found watching two foot flames in his room. The fire service had to rescue two patients from their room who were treated for smoke inhalation. This was the index offence that led to his being charged and transferred to HMP Bristol. November 2009-8 June 2010: detained at HMP Bristol on remand pending trial and subsequently sentence. 8 June 2010 to 1 October 2010: admitted under sections 47 and 49 Mental Health Act 1983 to Fromeside medium secure hospital. Displayed dis-inhibited sexual behaviour, poor anger control and destroyed property. It was not thought that his behaviour related to psychosis or hallucinations. Diagnosed as severe stress and khat dependency. 14 October 2010-5 July 2011: transferred to HMP Guys March, Shaftsbury, Dorset to continue his sentence. Prison mental health staff concluded his mental condition improved when he took his medication. A consultant forensic psychiatrist recommended transfer back to hospital as he may be suffering from schizophrenia. 6 July 2011-30 May 2012: admitted to Theale Ward an enhanced low secure admission ward at Thornford Park Hospital, Berkshire. Some incidents of violent behaviour, damaging property and dis-inhibited behaviour. Following a case conference meeting in April and the appellant’s expressed wish to move to Bristol nearer his family, he was transferred to Wickham Unit, Bristol, a low secure rehabilitation unit rather than open unit as he presents a significant risk to himself and others and property when his mental state deteriorates.’ 30 May 2012 to date: Fairfax Ward, Bristol. Treating clinician diagnoses appellant as consistent with paranoid schizophrenia. From June 28 2012: granted permission for increase in leave to visit his family to up to four times a week. 10 July 2012: informed of decision to deport. ‘Whilst he was visibly upset to receive this information he did (not?) appear unduly angry and all his responses were appropriate. In the weeks following the news he continue(d) to present as settled mentally and was warm and polite on all interactions. He used his unescorted community leave with no issues and has been returning to the ward within curfew limits’. 8 August 2012: returned late and was reported by his family to be chewing khat. November 2004-April 2005: admitted to hospital having self-harmed and was treated for depression and psychotic symptoms. September 2006-February 2007: arrested for assault and subsequently detained in hospital pursuant to s.2 Mental Health Act 1983. On 30 December 2006 he set fire to a tee shirt in his bedroom. Discharged on oral anti-psychotic medication. August 2007 to June 2008: visited Somalia with relatives. 7 July 2008-11 December 2008: detained in mental hospital after having attempted to kill himself. Demonstrated aggressive and dis-inhibited behaviour. Treated with anti-psychotic medication and diagnosis on discharge was psychotic depression with vulnerability for intense emotional instability with a differential diagnosis of paranoid schizophrenia. 18 December 2008-2 June 2009: after a short period back in the community he was re-detained in mental hospital after self-harming and violent and destructive behaviour. 24 December he set fire to a jumper in his room stating he intended to damage hospital property. Diagnosed with paranoid schizophrenia on discharge into the community with community mental health follow up. June-October 2009: living in the community. He indicated shortly after release that he refused to take his medication. The treating psychiatrist considered that this did not lead him to become mentally unwell but there was evidence of personality problems and considerable family and social difficulties causing him to display behaviour that was consistent with symptoms of paranoid schizophrenia. October 2009-November 2009: Informal admission to mental hospital where he complained of hearing voices. He was no longer on medication and an opinion was given of personality disorder rather than psychosis. It was during this admission that he set light to his bed with a cigarette lighter. He was found watching two foot flames in his room. The fire service had to rescue two patients from their room who were treated for smoke inhalation. This was the index offence that led to his being charged and transferred to HMP Bristol. November 2009-8 June 2010: detained at HMP Bristol on remand pending trial and subsequently sentence. 8 June 2010 to 1 October 2010: admitted under sections 47 and 49 Mental Health Act 1983 to Fromeside medium secure hospital. Displayed dis-inhibited sexual behaviour, poor anger control and destroyed property. It was not thought that his behaviour related to psychosis or hallucinations. Diagnosed as severe stress and khat dependency. 14 October 2010-5 July 2011: transferred to HMP Guys March, Shaftsbury, Dorset to continue his sentence. Prison mental health staff concluded his mental condition improved when he took his medication. A consultant forensic psychiatrist recommended transfer back to hospital as he may be suffering from schizophrenia. 6 July 2011-30 May 2012: admitted to Theale Ward an enhanced low secure admission ward at Thornford Park Hospital, Berkshire. Some incidents of violent behaviour, damaging property and dis-inhibited behaviour. Following a case conference meeting in April and the appellant’s expressed wish to move to Bristol nearer his family, he was transferred to Wickham Unit, Bristol, a low secure rehabilitation unit rather than open unit as he presents a significant risk to himself and others and property when his mental state deteriorates.’ 30 May 2012 to date: Fairfax Ward, Bristol. Treating clinician diagnoses appellant as consistent with paranoid schizophrenia. From June 28 2012: granted permission for increase in leave to visit his family to up to four times a week. 10 July 2012: informed of decision to deport. ‘Whilst he was visibly upset to receive this information he did (not?) appear unduly angry and all his responses were appropriate. In the weeks following the news he continue(d) to present as settled mentally and was warm and polite on all interactions. He used his unescorted community leave with no issues and has been returning to the ward within curfew limits’. 8 August 2012: returned late and was reported by his family to be chewing khat.

[26]The Upper Tribunal stated:

“18. The Appellant has clearly been in the United Kingdom for more than five years. It has been found that he does not meet the 10 year residence requirement necessitating the consideration of imperative grounds. However in our judgement both the time that he has spent in the United Kingdom and the history of his residence here justifies the consideration of rehabilitation as a factor in the proportionality balance when considering removal.”

[27]The Upper Tribunal concluded: The question of whether the Appellant’s continued rehabilitation is best served in the United Kingdom or elsewhere is of course a comparative one. In this respect the evidence already discussed shows that the Appellant is being treated in a rehabilitative environment in the United Kingdom and has been so treated in the same establishment for the last 17 months. We are satisfied that he is making progress. The prospects of rehabilitation in the Netherlands are more difficult to ascertain. Dr Taylor is clear in her view that even if the Dutch authorities offer equivalent medical treatment the Appellant’s rehabilitation is more likely to be successful in the UK (28 May 2013 report) because of his established relationship with the mental health team and his family support. Dr Taylor believes that his deportation “is highly likely to have a significant negative effect on (his) mental health”. Dr Taylor says that in the event of the Appellant’s deportation she would, with his permission, “try and contact local medical services once we know where he is going.” The Respondent has not sought to adduce evidence of the rehabilitative support that would be available to the Appellant in the Netherlands other than to say that the Consulate of the Netherlands advises that he would be able to report to the local authorities to obtain assistance. The mental health care in the Netherlands is said to be of high quality and to be divided into around 50 mental health districts with a comprehensive system of in patient and outpatient mental health services including provision of preventive services. Ms Bretherton adds that the Netherlands is a European country.28. In our judgment the nature of the rehabilitative treatment that the Appellant would receive in the Netherlands is at best uncertain whereas the rehabilitative treatment that he is receiving in the United Kingdom is known, long term, continuing and progressing. It is the difference between a known and a speculative unknown where what is known appears to be effective.

29. Taking account of all of the above it is our judgment that the prospects of the Appellant’s rehabilitation are a matter that needs to be considered in the proportionality balance. Those prospects of not of themselves determinative but as a factor in the balance in the case of this Appellant they weigh very heavily indeed. The reason why they weigh so heavily is that this is an Appellant with no history of offending apart from the index offence but with a long history of mental health issues. The Respondent accepts in the skeleton argument put before us that the Respondent must show that the Appellant has a current propensity to commit crime (paragraph 4). The Respondent also accepts (paragraph 20) that the Appellant’s khat use, his failure to accept his schizophrenia and his non compliance are the factors that will combine such as to make him a serious risk. It is therefore only by an examination of his psychiatric rehabilitation that it is possible to view his propensity to re-offend because there is no suggestion, either from the Respondent or otherwise, that any other factors are in play. In our judgement the evidence that is before us shows quite clearly that the Appellant’s psychiatric rehabilitation is continuing, progressing and controlled in a secure environment and further that it is being benefited by the proximity and support of close family members. We cannot be satisfied that this rehabilitation would continue were the Appellant to be deported to the Netherlands and further we are satisfied on the unequivocal evidence of Dr Taylor that even if mental health treatment was available to the Appellant his deportation is likely to have a significant detrimental effect on his mental health.

30. Taking into account all of the above it is our judgment that in the particular circumstances of this case the deportation of the Appellant is not a proportionate response within the terms of regulations 21(5) and 21(6) of the Immigration (European Economic area) Regulations 2006. We therefore remake the decision of the First-tier Tribunal and allow this appeal. “is highly likely to have a significant negative effect on (his) mental health”. “try and contact local medical services once we know where he is going.” LW

[28]LW is a citizen of Poland, born in Nov 1984. In September 2006 he was convicted of driving without due care and attention: his driving had caused the death of a pedestrian, but at that date there was no offence of causing death by careless driving. In May 2007 he was convicted of offences of theft and failure to surrender to bail and was sentenced to a community order. In Feb 2008 he was convicted of fraudulent use of a vehicle excise licence and other road traffic matters; he was fined and disqualified from driving. More seriously, in Dec 2011 he pleaded guilty to 2 offences of robbery; he was sentenced to 32 months imprisonment on both, to run concurrently. This led to the Secretary of State’s decision to remove him. He was sent a questionnaire in which he stated that he had no wife or children and did not know where his mother was living.

[29]LW did not appear at the First-tier Tribunal hearing of his appeal in Oct 2012. The Tribunal dismissed his appeal, holding that he had not established that he had a permanent right of residence in this country, he remained a risk to the public in the form of violence to the person, had not addressed his offending behaviour, and sought to minimise his criminality. His element of private life here was slight.

[30]The Upper Tribunal upheld LW’s further appeal, on the ground that the First-tier Tribunal had failed to consider the relative prospects of rehabilitation. Para 13 of the Upper Tribunal Judge’s determination was as follows: 13. I accordingly set aside the determination of the Panel although their findings relating to the appellant’s family members in the United Kingdom, the extent of his relationship with those family members, the acceptance that he has been in the United Kingdom for some periods since 2006, the statement from Mayday Employment Limited that he was working for them between August 2009 and 17th September 2010, the nature of his convictions, and paragraph 39 of the determination but excluding the conclusion of the Panel that he remains a risk to the public in the form of violence and the final sentence.

[31]At the substantive hearing before the Upper Tribunal, in June 2013, it seems to have been accepted, surprisingly, that LW had a permanent right of residence. Upper Tribunal Judge Hanson referred to his criminality in paras 8 and 9 and 12-14 of his determination: 8. The appellant’s personal conduct is demonstrated by his convictions. The offence of robbery is said to have involved the appellant and a friend spotting their victim walking home at about 11.30 one evening. The victim and kicked to the floor and robbed of his wallet and house keys. On 10th September 2011 in the early hours of the morning the appellant spotted another victim walking through the park who he attacked and robbed of his mobile telephone and watch. The attack was so violent the victim lost consciousness. 9. The appellant is subject to the minimum level of MAPPA supervision as a result of the offence. MAPPA arrangements aim to reduce the effect on society of convicted offenders of a violent or sexual nature. The NOMS 1 assessment assessed the appellant as presenting a medium risk of harm to the public, especially men walking late at night and pedestrians. The appellant’s offender manager noted in the NOMS report that alcohol is a concerning aspect of his lifestyle given his self disclosure that he looses his temper easily when he has been drinking and acts of violence in the past. The sentencing judge, when addressing the appellant, stated “The public, primarily, need protection from the likes of you.” 10. … 11…. 12. Alcohol is not the only factor in the appellants offending but has been identified as a contributing factor. I make this observation as the offence of driving without due care and attention has no alcohol related element. On this occasion the appellant was driving to fast. He was forced to swerve to avoid an oncoming car as a result which he mounted the pavement and knocked down a pedestrian who later died. He was originally charged with causing death by dangerous driving but the CPS discounted the charge and proceeded with the due care and attention charge only. Similarly there is no evidence that alcohol was a contributing factor to his failure to surrender, shoplifting or fraudulent use of a vehicle excise licence although the respondent did not seek to deport him for these offences. 13. Where alcohol has been identified as a contributory factor is in relation to the two robbery offences. It is recorded in the NOMS 1 report: “Mr Wozniak does not consider alcohol to be a problematic area. He said that he does not go out very often and rarely drinks estimating this to be monthly or fortnightly or for special occasions such as birthdays. However, he admits that he was very drunk on the night of both of the offences and had been drinking vodka. He said that he looses his temper more easily when he has been drinking and often forgets what he has done. He said he has got into fights in the past but this is rarely in public and usually occurs with his brother and friends. Since being in custody Mr Wozniak has not completed and work around alcohol misuse and this therefore remains an address that requires intervention. Alcohol misuse is linked to both the risk of harm and offending behaviour. 14. As stated above there is evidence that work has since been undertaken in relation to alcohol awareness and the evidence of the appellant and his friends is that he has not drunk alcohol for a considerable period of time. I note however paragraph 9 of Miss Manning’s skeleton argument that if returned to Poland there is a risk of alcohol misuse and therefore criminal behaviour. If this is the case this must be an indication that if placed in a position of stress or away from his current arrangements and friends of influence there is a real risk he will drink again with the resulting risk to members of the public. I find if this is the case the risk identified by the author of the report and the sentencing judges comment about the need to protect the public from the appellant justifies his deportation; as there must be a real risk of conduct representing a genuine present and sufficiently serious threat to a fundamental interests of society which of a crime of violence, if he drinks again. I also note there is little evidence of professional work being undertaken to address his general propensity to offend, albeit at a petty level to date bar the robbery and driving resulting in the death if a pedestrian. “Mr Wozniak does not consider alcohol to be a problematic area. He said that he does not go out very often and rarely drinks estimating this to be monthly or fortnightly or for special occasions such as birthdays. However, he admits that he was very drunk on the night of both of the offences and had been drinking vodka. He said that he looses his temper more easily when he has been drinking and often forgets what he has done. He said he has got into fights in the past but this is rarely in public and usually occurs with his brother and friends. Since being in custody Mr Wozniak has not completed and work around alcohol misuse and this therefore remains an address that requires intervention. Alcohol misuse is linked to both the risk of harm and offending behaviour.

[32]Judge Hanson then cited paragraphs 3, 4 and 5 of the decision of the Upper Tribunal in Essa (EEA): rehabilitation/integration

[2013] UKUT 00316 (IAC)

, to which I refer below, and concluded:19. There is evidence of attempts at rehabilitation by voluntarily not using alcohol. This evidence was not discredited by Mr Smart in cross examination. If such work continues with the support of family and the friends who attended court and have provided written statements, the prospects for the appellant not reoffending as a result of alcohol related issues must be positive. He has had the support of the probation services in the UK and I accept Mr Smart’s argument that there is a probation service in Poland with facilities to assist the appellant if the same are required on return. The key element to the success of his rehabilitation appears not to be the intention of professionals but rather the integration into the peer, family, and friendship group in the UK. It was submitted there is no family or such group in Poland although this does not mean past friendships could not be established as he lived in Poland from 1984 to 2005 or that there will be no family help, albeit the submissions made are of no family, friends or work prospects. In relation to this latter element I do not find it proved that he will be unable to secure work as the Polish economy is improving and the appellant has shown a willingness to undertake work if available in the UK.

20. I find this case falls within the class of those who at the time of this determination are or remain a present threat to public policy but where the factors relevant to integration suggest that there are reasonable prospects of rehabilitation. Such prospects are a substantial relevant factor in the proportionality balance as to whether deportation is justified. It is clear this appellant is well advanced in rehabilitation and that there is a substantial degree of integration. I have considered the issue of whether future protective factors are in place to ensure that the rehabilitation remains durable and find on the evidence that the appellants intention to remain in Banbury, where those assisting him reside, and his intention to avoid further offending in the future indicate that it should be a durable solution.

21. On the facts of this case I find it disproportionate to proceed to deportation when considering the regulation 21 facts with particular reference to regulation 21 (5) (a) and (6). The future is up to the appellant. If he reoffends his claim to have rehabilitated will be shown to be false and his deportation to Poland may then succeed. If he wished to remain in the UK he must continue to abstain from alcohol and steroids or any other substance which may result in aggression and loss of control, behave as a model citizen, and drive with the degree of care expected from any road user.

The provisions of the Directive and the Regulations

[33]Deportation is referred to in the Directive as expulsion. It is the subject of Recitals 23 and 24:23. 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.

24. 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...

[34]The words “having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State” would seem to refer to those who have acquired the right of permanent residence, since they will have availed themselves of the rights conferred by the Directive and become to a greater or lesser degree integrated into the society of the host State. “Genuinely integrated” could be read as a synonym for “having acquired the permanent right of residence”. However, that reading does not fit in with the references to “the degree of integration” in both of these Recitals. Moreover, the relevance of proportionality is made clear by the substantive provisions of the Directive. Article 27 provides:(1) Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

(2) Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures. The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

[35]An indication of the factors to be taken into account when deciding whether a person should be deported on grounds of public policy, and a further constraint in relation to certain EU citizens is provided in Article 28: Article 28 Protection against expulsion 1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin. 2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security. 3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member Stated, if they;(a) have resided in the host Member State for the previous ten years; or

(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989. Article 28 Protection against expulsion (a) have resided in the host Member State for the previous ten years; or (b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.

Protection against expulsion

[36]These provisions are reflected in Regulations 19 and 21: Exclusion and removal from the United Kingdom 19.—(1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21. (2) A person is not entitled to be admitted to the United Kingdom as the family member of an EEA national under regulation 11(2) unless, at the time of his arrival—(a) he is accompanying the EEA national or joining him in the United Kingdom; and

(b) the EEA national has a right to reside in the United Kingdom under these Regulations. (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. (4) A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom. (5) A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21. 20. … Decisions taken on public policy, public security and public health grounds 21.—(1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health. (2) A relevant decision may not be taken to serve economic ends. (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) 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. (7) In the case of a relevant decision taken on grounds of public health— (a) a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease to which section 38 of the Public Health (Control of Disease) Act 1984 applies (detention in hospital of a person with a notifiable disease) shall not constitute grounds for the decision; and (b) if the person concerned is in the United Kingdom, diseases occurring after the three month period beginning on the date on which he arrived in the United Kingdom shall not constitute grounds for the decision. Exclusion and removal from the United Kingdom (a) he is accompanying the EEA national or joining him in the United Kingdom; and (b) the EEA national has a right to reside in the United Kingdom under these Regulations. (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. Decisions taken on public policy, public security and public health grounds (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. (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. (a) a disease that does not have epidemic potential as defined by the relevant instruments of the World Health Organisation or is not a disease to which section 38 of the Public Health (Control of Disease) Act 1984 applies (detention in hospital of a person with a notifiable disease) shall not constitute grounds for the decision; and (b) if the person concerned is in the United Kingdom, diseases occurring after the three month period beginning on the date on which he arrived in the United Kingdom shall not constitute grounds for the decision.

Jurisprudence

[37]In Batista v Secretary of State for the Home Department

[2010] EWCA Civ 896

, Carnwath LJ made a tentative comment on rehabilitation, though not using that word: 27. I would add a further possible consideration, although it was not an aspect explored in any detail before us. Even in respect of those deemed sufficiently dangerous to justify deportation under the EEA rules, common sense would suggest a degree of shared interest between the EEA countries in helping progress towards a better form of life. The prospects offered by the relationship with Miss Deane in this country may have been fragile, as the tribunal thought, but in Portugal they would be practically non-existent. Although he has siblings in that country, there seems to have been no evidence that they would be able or willing to offer the support needed to prevent what the tribunal saw as his likely drift back to crime. There may be room for argument as to the relevance of such points under the Directive, but as at present advised I see no reason in principle why they may not be taken into account in the overall balance of proportionality. It will be a matter for the tribunal to consider whether they have any materiality in the present case.

[38]Rehabilitation was referred to by the Advocate General and by the Court of Justice in Land Baden-Wurttemberg v Tsakouridis

[2011] 2 CMLR 11

. The case concerned a Greek citizen who had committed serious drug offences in Germany, where he had resided for more than 10 years, so that imperative grounds of public security were required for his expulsion. None of the questions referred concerned rehabilitation, but as I have indicated, the subject was addressed. The Advocate General said: AG48. The idea, mooted since ancient times by theologians, philosophers and theorists, that a criminal sanction must contribute to the rehabilitation of the convicted person, is nowadays a principle which is shared and confirmed by all modern legal systems, including those of the Member States. Also, in 2006, the Council of Ministers adopted a recommendation on the European Prison Rules which provides that “detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty”. The International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly and signed in New York on December 16, 1966, also provides, in art. 10(3), that “[t]he penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”. AG49. The European Court of Human Rights has also held that:

“[o]ne of the essential functions of a prison sentence is to protect society, for example by preventing a criminal from re-offending and thus causing further harm. At the same time, the Court recognises the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment. From that perspective it acknowledges the merit of measures - such as temporary release - permitting the social reintegration of prisoners. ” ... AG94. In the present case, which concerns an expulsion decision applicable on the expiry of the criminal sanction imposed, I consider that the proportionality test takes on a special significance which requires the competent authority to take account of factors showing that the decision adopted is such as to prevent the risk of re-offending. AG95. In my view, when that authority takes an expulsion decision against a Union citizen following the enforcement of criminal sanction imposed, it must state precisely in what way that decision does not prejudice the offender’s rehabilitation. Such a step, which relates to the individualisation of the sanction of which it is an extension, seems to me to be the only way of upholding the interests of the individual concerned as much as the interest of the Union in general. Even if he is expelled from a Member State and prohibited from returning, when released the offender will be able, as a Union citizen, to exercise his freedom of movement in the other Member States. It is therefore in the general interest that the conditions of his release should be such as to dissuade him from committing crimes and, in any event not risk pushing him back into offending. “[o]ne of the essential functions of a prison sentence is to protect society, for example by preventing a criminal from re-offending and thus causing further harm. At the same time, the Court recognises the legitimate aim of a policy of progressive social reintegration of persons sentenced to imprisonment. From that perspective it acknowledges the merit of measures - such as temporary release - permitting the social reintegration of prisoners. ”

[39]The Court referred to these observations in paras 49 and 50 of its judgment:49. Consequently, an expulsion measure must be based on an individual examination of the specific case (see, inter alia, Metock [2008] 3 C.M.L.R.39 at [74]), and can be justified on imperative grounds of public security within the meaning of art.28(3) of Directive 2004/38 only if, having regard to the exceptional seriousness of the threat, such a measure is necessary for the protection of the interests it aims to secure, provided that that objective cannot be attained by less strict means, having regard to the length of residence of the Union citizen in the host Member State and in particular to the serious negative consequences such a measure may have for Union citizens who have become genuinely integrated into the host Member State.

50. In the application of Directive 2004/38, a balance must be struck more particularly between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned, assessed if necessary at the time when the expulsion decision is to be made (see, inter alia, Orfanopoulos v Land Baden-Württemberg (C-482/01 & C- 493/01) [2004] E.C.R. I-5257; [2005] 1 C.M.L.R.18 at [77]-[79]), by reference in particular to the possible penalties and the sentences imposed, the degree of involvement in the criminal activity, and, if appropriate, the risk of reoffending (see, to that effect, inter alia, R. v Bouchereau (30/77) [1977] E.C.R. 1999; [1977] 2 C.M.L.R. 800 at [29]), on the one hand, the risk of compromising the social rehabilitation of the Union citizen on the State in which he has become genuinely integrated, which, as the A.G. observers in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general.

[40]I have to say that I have considerable difficulty with what was said by the Advocate General in relation to rehabilitation. In the first place, it had no, or very little, relevance to the questions referred to the Court, which concerned the meaning of “imperative grounds of public security”. Secondly, it is only if there is a risk of reoffending that the power to expel arises. It is illogical, therefore, to require the competent authority “to take account of factors showing that the decision adopted (i.e., to expel) is such as to prevent the risk of re-offending”, when it is that very risk that gives rise to the power to make that decision. Secondly, in general “the conditions of [a criminal’s] release” will be applicable and enforceable only in the Member State in which he has been convicted and doubtless imprisoned. He will not be subject to the criminal justice system in the State of his nationality, in which, normally, he will have committed no relevant outstanding offence. For example, a prisoner released in this country on licence will not be the subject of the terms of that licence, or of supervision, in any other State. There is therefore a high degree of impracticality in the suggestion that a Member State “must state precisely in what way that decision does not prejudice the offender’s rehabilitation”, since in most cases, if the offender is the subject of supervision or licence, his expulsion will affect his rehabilitation. Moreover, it is difficult to see why the Member State should have to consider the relative prospects of rehabilitation if the subject is not raised by the offender himself. Generally it seems to me that the Advocate General’s remarks risk rendering the exercise of the right to expel difficult indeed, if not illusory, and in a manner not justified by the provisions of the Directive. Fortunately, I do not read the Court as having adopted those remarks, other than to accept the truism in the last sentence of paragraph AG95. In this respect, I respectfully entirely agree with what was said by Maurice Kay LJ, in a judgment with which the other members of the Court agreed, in R (Daha Essa) v UTIAC

[2012] EWCA Civ 1718

: 16. Finally, there is one matter upon which Mr Hall made submissions which I consider to be well-founded. The Advocate General, in the passage which I set out in paragraph 8, above, opined that it is incumbent upon a primary decision-maker who makes an expulsion decision "to state precisely in what way that decision does not prejudice the offender's rehabilitation". Although the CJEU expressly adopted part of paragraph AG95 in its judgment, I do not think that it adopted that part. In my respectful opinion it is overprescriptive. The comparative exercise envisaged by Lang J as the usual corollary of Tsakouridis may well be achieved without such a straitjacket.

[41]However, the judgment of the Court of Appeal in that appeal makes it clear that the relative prospects of rehabilitation are a factor to be taken into account. At first instance, Lang J had said: In my judgment, the judgment … in Tsakouridis establishes that the decision-maker, in applying regulation 21 of the EEA Regulations, must consider whether a decision to deport may prejudice the prospects of rehabilitation from offending in the host country, and weigh that risk in the balance when assessing proportionality under regulation 21(5)(a). In most cases, this will necessarily entail a comparison with the prospects of rehabilitation in the receiving country …

[42]Maurice Kay said that he entirely agreed with Lang J’s interpretation of Tsakouridis.

[43]The prospects of rehabilitation were considered by the Upper Tribunal, consisting of the President Blake J and UTJ Southern, in Secretary of State for the Home Department v Vasconcelos

[2013] UKUT 378 (IAC)

. The facts of the case are not significant. It concerned a citizen of Portugal who had committed offences of burglary and theft during the rioting in Manchester. I refer to the Tribunal’s decision for its approach to the prospects of rehabilitation:77. There is little or no evidence of integration by reason of strong family ties with his father or that side of his family or with a partner. The strength of his connection with his maternal aunt or her ability to promote his rehabilitation is contentious and has not been proven.

78. Nothing has emerged since the panel’s decision to throw doubt on their conclusion that the claimant presented an unacceptable risk of re-offending; and that his presence is a genuine and sufficiently serious threat on one of the fundamental interests of society apart from the mere fact of his conviction.

79. The criteria for making a decision to deport in accordance with the EEA Regulations are thus met. Having regard to his age, state of health, family, economic considerations, length of UK residence, and degree of social and cultural integration, an exclusion decision taking affect as if it were a deportation order would be proportionate. We accept that his present links with Portugal do not appear to be strong apart from his nationality and ability to speak the language but that single factor does not suffice to outweigh other ones.

80. His future prospects of rehabilitation are uncertain and whatever they are cannot be a weighty factor in the balance given the absence of integration and a right of permanent residence.

[44]I entirely agree with what was said in paragraph 80.

[45]The judgment of the Court of Justice in Tsakouridis was considered by the Upper Tribunal, consisting of the President Blake J and UTJ Warr, in Daha Essa v Secretary of State for the Home Department

[2013] UKUT 316 (IAC)

. The Tribunal concluded that the prospects of rehabilitation in the offender’s home State are relevant to the decision to deport only if he has acquired a permanent right of residence:23. As we observed in our ruling and directions the Court of Justice in Tsakouridis used the term ‘genuinely integrated’ to describe those for whom the prospects of rehabilitation were a relevant issue in the assessment of the balance.

24. Tsakouridis was a case where the Court examined the issue of imperative grounds relating to those who had resided in the host state for ten years or more. The Court of Appeal in the instant case did not elaborate on whether the principles apply generally or only to those who had permanent rights of residence. As the case below was determined on the basis of an assumption that the appellant had rights of permanent residence, we conclude that the Court of Appeal did not consider that only those with ten years residence could benefit from the principle.

25. In our directions for remaking, we invited the parties to consider the matter and suggested that the test was genuine integration rather than the precise number of years of residence. Mr Allan’s skeleton argument disputed that proposition and suggested that genuine integration was not a novel test but only shorthand for the structured approach based on length of residence.

26. We agree that the Court’s reference to genuine integration must be directed at qualified persons and their family members who have resided in the host state as such for five years or more. People who have just arrived in the host state, have not yet become qualified persons, or have not been a qualified person for five years, can always be removed for non-exercise of free movement rights irrespective of public good grounds to curtail free movement rights. If their presence during this time makes them a present threat to public policy it would be inconsistent with the purposes of the Directive to weigh in the balance against deportation their future prospects of rehabilitation.

[46]While I have considerable sympathy with this approach, I am unable to agree with it. I can think of no other example of a factor bearing on proportionality being relevant to those who qualify in a certain respect (here, lawful residence) but not others. Once proportionality is engaged, the factors to be taken into account do not vary with the qualifications of the individual concerned. In addition, what was said by the Upper Tribunal in that appeal is not consistent with its error of law decision in ME, referred to at paragraph 23 above. As I point out below, the cases of AD and ME highlight this conclusion. What is however affected by length of legal residence (in the sense used in Art 16.1) is the weight to be given to the respective prospects of rehabilitation. In addition, it seems to me that the decision of the Upper Tribunal in Daha Essa is inconsistent with what was said by Maurice Kay LJ in Daha Essa.

[47]Lastly, I refer to what my Lord Jackson LJ said in SE Zimbabwe v Secretary of State for the Home Department

[2014] EWCA Civ 256

[2014] Imm AR 4: 44. It is clear from the first part of paragraph 19 that the Upper Tribunal took into account SE's good progress to date in rehabilitation. The tribunal treated that as a factor in SE's favour. 45. The last sentence of paragraph 19 is directed to the effect of Essa (EEA: Rehabilitation/Integration)

[2013] UKUT 316 (IAC)

. This was a decision concerning EU citizens who committed offences and were being considered for deportation. Blake J observed at paragraph 37 that it was in the interests of the citizen, the host state and the Union itself that the offender should cease to offend. Accordingly, if the offender's rehabilitation is incomplete, it is relevant to consider the offender's prospects of future rehabilitation(a) if he is deported to his home state and

(b) if he remains in the host state. 46. I agree with that analysis. The European Union has a collective interest in promoting the rehabilitation of all EU citizens who have lapsed into crime. 47. What the Upper Tribunal was saying in the last sentence of paragraph 19 of its decision in the present case was that that analysis does not apply here, because SE is not an EEA national. I agree with that proposition. 48. SE is a violent offender, who has made good progress towards rehabilitation. At the time of sentence, his risk of re-offending was assessed as high. That risk is now assessed as medium. It is reasonable to suppose that if SE is deported to Zimbabwe, he will not receive the same level of support and assistance in continuing his rehabilitation process. However, it is also right to note that there was no evidence about this because the issue was not raised; the observation of the Upper Tribunal on the point was really in the nature of an aside. 49. From that point of view, it may be thought that it is desirable for SE to remain in the UK, so that he can access the services of probation officers and other professionals. On the other hand, in the general run of cases, I do not think that this is a valid consideration under

article 8 of ECHR

. The prospective deportee cannot say:

“I am a criminal. I am only part way through the process of rehabilitation. If I remain in the UK, I will probably become reformed with the help of probation officers and other professional staff. If deported to my home country, I am likely to return to my criminal ways. Therefore I should stay here.” 50. In my view, absent exceptional circumstances, this is not a valid argument. The offender cannot rely upon his own partially unreformed criminality as a factor relevant to either his family life or his private life. “I am a criminal. I am only part way through the process of rehabilitation. If I remain in the UK, I will probably become reformed with the help of probation officers and other professional staff. If deported to my home country, I am likely to return to my criminal ways. Therefore I should stay here.”

Discussion

[48]I am unable to accept the Secretary of State’s submission that the prospects of rehabilitation are irrelevant unless the offender has a permanent right of residence. Quite apart from the authority of the judgment of the CA in Daha Essa, to which I have referred above, rehabilitation is not infrequently linked to the health of the offender. That is obviously the case in respect of ME and AD. ME’s offending was inextricably linked to his mental health, as is the risk of his reoffending. In Article 28.1, health is expressly referred to as a factor to be taken into account in the determination of proportionality. If ME remains mentally healthy, he is unlikely to reoffend; if his mental health deteriorates, he is liable to reoffend.

[49]Much the same applies to AD. If he is drug free, he is less likely to offend. Keeping him drug free will promote his rehabilitation; it will also improve his health. If he were to resume his addiction to heroin, his health would undoubtedly suffer. So drugs are relevant to both health and offending.

[50]In the case of LW, it is the connection between alcohol and his offending that is involved. Excessive alcohol consumption is liable to damage health (and may lead to cirrhosis of the liver) as well as contributing to or causing offending behaviour.

[51]It is notorious that a great deal of offending is linked to illicit drugs and/or to alcohol. Addiction to drugs leads to crimes of acquisition, including theft, burglary and robbery, aimed at financing the purchase of drugs to feed the addiction. Alcohol affects self-restraint and is particularly associated with crimes of violence.

[52]I am bound to accept, on the authority of the judgment of this court in Daha Essa, that the Secretary of State, and therefore the Tribunal, must consider the relative prospects of rehabilitation, in the sense of ceasing to commit crime, when considering whether an offender should be deported. I have to say that but for that authority, I would have said that this was a factor to be considered if raised by the offender, but not otherwise, just as the effect of deportation on the health of an offender need not be considered unless it is made known to the Secretary of State that it is a relevant factor.

[53]However, different considerations apply to questions of evidence and the weight to be given to the prospects of rehabilitation. As to evidence, as a matter of practicality, it is easier for the Secretary of State to obtain evidence as to support services in other Member States. However, in my judgment, in the absence of evidence, it is not to be assumed that medical services and support for, by way of example, reforming drug addicts, are materially different in other Member States from those available here. This is not the occasion to conduct a comparative survey, but it is appropriate to mention, by way of example, that medical services in France are said to be excellent, and that Portugal has been innovative in relation to treating drug addiction.

[54]Lastly, in agreement with what was said by the Upper Tribunal in Vasconcelos, I do not consider that in the case of an offender with no permanent right of residence substantial weight should be given to rehabilitation. I appreciate that all Member States have an interest in reducing criminality, and that deportation merely exports the offender, leaving him free to offend elsewhere. However, the whole point of deportation is to remove from this country someone whose offending renders him a risk to the public. The Directive recognises that the more serious the risk of reoffending, and the offences that he may commit, the greater the right to interfere with the right of residence. Article 28.3 requires the most serious risk, i.e. “imperative grounds of public security”, if a Union citizen has resided in the host Member State for the previous 10 years. Such grounds will normally indicate a greater risk of offending in the country of nationality or elsewhere in the Union. In other words, the greater the risk of reoffending, the greater the right to deport.

[55]Furthermore, as I mentioned above, a deported offender will not normally have committed an offence within the State of his nationality. There is a real risk of his reoffending, since otherwise the power to deport does not arise. Nonetheless, he will not normally have access to a probation officer or the equivalent. That must have been obvious to the European Parliament and to the Commission when they adopted the Directive. For the lack of such support to preclude deportation is difficult to reconcile with the express power to deport. In my judgment, it should not, in general, do so.

My conclusions in these appeals

[56]I would allow the Secretary of State’s application to amend her grounds of appeal to include the contention that the weight given to rehabilitation was manifestly excessive.

[57]In AD, the First-tier Tribunal accepted that appropriate medical treatment would be available to him in Lithuania, but found that no rehabilitative programme for him, as a recovering drug addict, would be available in Lithuania. I consider that it erred in so doing. Appropriate medical treatment could well include support for his abstinence from hard drugs, and in any event it should not have been assumed that no support is available for a reforming addict. The Upper Tribunal should not have upheld the First-tier Tribunal’s assessment of proportionality, which was flawed for the reason I have given. The Secretary of State’s appeal should be allowed; the decision of the Upper Tribunal should be set aside, and AD’s appeal remitted to be heard by the Upper Tribunal afresh, in the light of the latest evidence. If, while at liberty, he has been abstinent, that may indicate that there are no longer grounds for his deportation, but that remains to be seen.

[58]In LW, as has been seen, the Upper Tribunal assumed that there would be facilities in Poland to assist him if required. The NOMS 1 report, cited above, was not encouraging: LW “did not consider alcohol to be a problem area”. Doubtless it was in part for this reason that the Upper Tribunal found that he presented a genuine and serious threat to fundamental interests of society. I find it impossible to reconcile this finding with the finding in paragraph 20 that there was a durable solution to his alcohol problem and his offending. I am also concerned that the weight given to the advantage of his remaining in this country, if there was a real risk of serious reoffending, was excessive. In his case, too, I would allow the Secretary of State’s appeal and remit the case to the Upper Tribunal for a fresh hearing.

[59]In the case of ME, the Upper Tribunal seems to have accepted that mental health care in the Netherlands was of high quality, and he would be able to report to the local authorities to obtain assistance. In these circumstances, it was inconsistent to proceed on the basis that his treatment in the UK was known and that in the Netherlands was a speculative unknown i.e. that on the evidence before the Tribunal there was a sufficiently substantial difference between his care here and his care in the Netherlands. Since this was a consideration that led the Upper Tribunal to its decision, I consider that the Secretary of State’s appeal in this case too should be allowed and his case remitted to the Upper Tribunal. I would add that if the Tribunal had proceeded solely on the basis that ME’s deportation would damage his mental health, my conclusion might have been different. Lord Justice Floyd

[60]I agree. Lord Justice Jackson

[61]I also agree.