Decker, R (on the application of) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1752

Case No C4/2014/0651[2017] EWCA Civ 1752
IN THE COURT OF APPEAL (CIVIL DIVISION)
[2014] EWHC 354 (Admin)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
PHILIPPA WHIPPLE QC
Sitting as a Deputy High Court Judge
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 03/11/2017
Before
LORD JUSTICE JACKSONLORD JUSTICE LEWISONLORD JUSTICE HAMBLEN
Between
The Queen on the application ofAppellantArthur Obafemi Cecil DeckerAppellantSecretary of State for The Home DepartmentFirst Respondent
Zainul Jafferji (instructed by Burton & Burton Solicitors) for AppellantSusan Chan (instructed by Government Legal Department) for First RespondentHearing Hearing date : 26 October 2017
JudgmentLord Justice Hamblen :Introduction
[1]This is an appeal against the decision of Philippa Whipple QC (sitting as a Deputy High Court Judge) dismissing the Appellant’s consolidated judicial review claims. Those claims had sought to challenge the Respondent Secretary of State’s deportation order signed on 27 January 2009 and the decision of the First Tier Tribunal (“FTT”) that the Secretary of State had been entitled to refuse to issue the Appellant with an EEA residence card.

Factual and Procedural Background

[2]The factual and procedural background to this claim is set out in paragraphs [1]-[27] of the judgment.[3]In outline, the Appellant is a national of Sierra Leone born on 31 December 1984 who arrived in the UK as a minor with entry clearance as a visitor on 19 May 2000. He came to the UK with his sister Winifred following the deaths of both his parents as a result of problems in Sierra Leone. They both claimed asylum, but their applications were refused. Winifred has now been granted indefinite leave to remain in the UK under the legacy exercise.[4]On 5 August 2005 the Appellant was convicted of seeking to obtain leave by deception and sentenced to 15 months detention in a young offenders’ institution (he had submitted forged medical documents to support an application for leave to remain in the UK). On 17 March 2008 the Appellant was notified of the Respondent’s decision to make a deportation order against him.[5]On 24 July 2008 the Appellant appealed against the Respondent’s notified intention to make a deportation order. However, on 4 January 2009, while the appeal was still pending, he moved to Ireland with his sister, Jennifer (a British citizen). He did not inform the Respondent of his departure. His appeal was withdrawn on 8 January 2009.[6]The Respondent signed the deportation order against the Appellant on 27 January 2009 (“the deportation order”).[7]The Irish authorities granted the Appellant an EEA residence card as an extended family member of his sister, Jennifer, who was exercising Treaty rights in Ireland.[8]In October 2009 the Appellant returned to the UK.[9]On 28 October 2009 the Appellant applied for an EEA residence card on the basis that he was dependent upon Jennifer and a member of her household. This application was first refused by the Respondent on 6 January 2010. It was further refused after reconsideration on 8 August 2011 and 11 January 2012.[10]On 27 March 2012 the Appellant’s appeal against the refusal to grant him an EEA residence card was dismissed by the FTT (“the FTT decision”).[11]On 9 May 2012 the Upper Tribunal refused permission to appeal.[12]On 20 August 2012 the Respondent issued her decision to refuse to revoke the deportation order.[13]Judicial review claims were issued:(1) against the decision to remove him, challenging the validity of the deportation order made whilst he was out of the country and the decision to detain him;(2) against the Upper Tribunal’s decision to refuse permission to appeal, and(3) challenging the refusal and certification of his application to revoke the deportation order. These were consolidated by consent order on 29 April 2013.[14]Following a hearing on 29 January 2014 the judge dismissed all three judicial review claims in her judgment of 19 February 2014. This is the decision under appeal.[15]On 27 June 2016 Sales LJ granted permission to appeal against that decision on grounds (1), (3) and (5) and refused permission on all other grounds.

The issues on the appeal

[16]The three grounds of appeal raise essentially two issues:(1) Whether the deportation order was invalid because the Appellant was outside the UK when it was signed (Grounds (1) and (5)). (Ground (5) argues that the refusal to revoke the deportation order was invalid, which is essentially the same issue as whether the order was valid in the first place);(2) Whether the incorrect approach under article 27 of the 2004 Citizen’s Directive was applied when the Appellant was refused an EEA residence card (Ground (3)). Issue (1) - Whether the deportation order was invalid because the Appellant was outside the UK when it was signed[17]The power to deport a person from the UK is granted by the Immigration Act 1971 (“the 1971 Act”). Section 3 sets out those who are liable to be deported from the UK: “3 General provisions for regulation and control … (5) A person who is not a British citizen is liable to deportation from the United Kingdom if—(a) the Secretary of State deems his deportation to be conducive to the public good; or(b) another person to whose family he belongs is or has been ordered to be deported. (6) Without prejudice to the operation of subsection (5) above, a person who is not a British citizen shall also be liable to deportation from the United Kingdom if, after he has attained the age of seventeen, he is convicted of an offence for which he is punishable with imprisonment and on his conviction is recommended for deportation by a court empowered by this Act to do so.” (a) the Secretary of State deems his deportation to be conducive to the public good; or (b) another person to whose family he belongs is or has been ordered to be deported.[18]Section 5(1) of the 1971 Act provides for the Respondent’s power to deport:
“5 Procedure for, and further provisions as to, deportation (1) Where a person is under section 3(5) or (6) above liable to deportation, then subject to the following provisions of this Act the Secretary of State may make a deportation order against him, that is to say an order requiring him to leave and prohibiting him from entering the United Kingdom; and a deportation order against a person shall invalidate any leave to enter or remain in the United Kingdom given to him before the order is made or while it is in force..”
[19]Section 5(6) of the 1971 Act makes provision for supervised departure:
“(6) Where a person is liable to deportation under section 3(5) or (6) above but, without a deportation order being made against him, leaves the United Kingdom to live permanently abroad, the Secretary of State may make payments of such amounts as he may determine to meet that person’s expenses in so leaving the United Kingdom, including travelling expenses for members of his family or household.”
[20]The judge rejected the Appellant’s argument that a deportation order signed whilst the subject of the order is outside the UK is not a valid order for the reasons set out at [28]-[50] (Ground 1) and [121]-[123] (Ground 5) of her judgment. In summary, her reasons for so concluding (with references given to the relevant paragraphs of the judgment) were as follows:(1) The relevant statutory provision, section 3(5) of the 1971 Act, did not contain any express requirement that the person must be present in the UK at the time the deportation order was signed [42];(2) “To read in such a condition would go against the grain of the statute” which under section 5(1) has the double effect of both removing the person from the UK and prohibiting that person from entering. The double effect would suggest that the order was to be effective whether the person was inside or outside the UK [43];(3) Reading in such a condition would undermine the policy of maintaining effective immigration control by removing foreign criminals and others whose presence in the UK was not conducive to the public good. It would result in a large gap, such that if the order was signed on a day when the subject was not in the UK, it would be invalidated, even if the subject had just gone to Calais for the day clandestinely to avoid deportation. If the person managed to slip back in unnoticed, the Respondent would potentially have to sign a second deportation order which could again be defeated in the same way if the subject left the country. That result made no sense [44-45];(4) Rules and instructions given to immigration officials were not intended to limit the validity of a deportation order in ways not envisaged by the statute, nor did they have that effect [46];(5) The contention that the Respondent’s position would undermine the policy incentive for voluntary departure was misplaced as the Appellant had not left “voluntarily” in order to return to Sierra Leone; he had left the UK to avoid deportation and promote his prospects of staying in the UK by getting a UK residency card [para 47];(6) The case of R v SSHD ex p William Duah Brew [1988] Imm AR 93 did not assist the Appellant. In that case as in this case, there was no realistic prospect that the subject of the deportation order would leave voluntarily [48].[21]In reaching these conclusions the judge referred to and relied upon findings made by the FTT, as set out in paragraph 40 of her judgment:
“40 The First Tier Tribunal found as a fact that the Claimant had moved to Ireland with his sister for the immediate purpose of avoiding the deportation proceedings which had been instituted against him and for the secondary purpose of enabling him to return to the United Kingdom in due course as the extended family member of a UK national who had exercised Treaty rights in Ireland: para 18. The First Tier Tribunal went on to conclude that: “21. It would undermine the maintenance of effective immigration control, one of the central purposes of the immigration rules, if the temporary absence of a foreign criminal from the United Kingdom for the express purpose of avoiding deportation, would invalidate a deportation order duly signed, on the grounds that it could not and was not served on him because of an absence from the United Kingdom that he had contrived. ….” “21. It would undermine the maintenance of effective immigration control, one of the central purposes of the immigration rules, if the temporary absence of a foreign criminal from the United Kingdom for the express purpose of avoiding deportation, would invalidate a deportation order duly signed, on the grounds that it could not and was not served on him because of an absence from the United Kingdom that he had contrived. ….”
[22]The Appellant challenges the judge’s decision and reasoning on the following principal grounds:(1) The natural and ordinary meaning of the word “deportation” is to remove somebody from a country. That can only be done if that person is in the country.(2) The judge erred in holding that a requirement of presence in the UK must be read into the 1971 Act. The power to deport is first and foremost a power to remove the subject from the UK. The Appellant relies on the text of section 5(1) of the 1971 Act, which states that a deportation order is “…an order requiring [the subject] to leave and prohibiting him from entering the United Kingdom” (emphasis added). To be valid the deportation order must do both those things. One cannot exercise the power simply to prohibit entry, but that is all the order could do in this case as one cannot require someone to leave who is not in the UK.(3) The provision for ‘supervised departure’ in section 5(6) of the 1971 Act would be ineffective if the Respondent could make a deportation order after departure.(4) The Respondent’s internal Instructions to its immigration officers state that “an order is invalid” if “the person was not in the UK on the date the order was signed”. An updated version of the Instructions settled after the dismissals of the judicial review claim in this case continues to state that a deportation order signed after the subject has departed is invalid.(5) Under paragraph 1(3) of Schedule 2 of the 1971 Act, the Respondent’s Immigration Officers are obliged to Act in accordance with the Enforcement Instructions and Guidance unless it is contrary to the Immigration Rules. Enforcement of the deportation order in this case was therefore in breach of this requirement even if the Respondent in principle had the power to issue it. The judge failed to consider whether the order was unlawful because the Respondent acted inconsistently with her own policy.(6) The leading immigration law text, McDonald’s Immigration law and Practice (8th edition) states that an order is invalid in such circumstances. It states at para. 15.65:
“Voluntary or supervised departure 15.65 Persons liable to deportation who are not detained may leave the UK voluntarily, paying for their own passage and leaving under their own auspices, at any time before a deportation order is signed. This may require liaison with the port if travel documents are held. The advantage of this option is that it does not preclude a future return under the Immigration Rules, since the power to sign a deportation order can only be exercised when the person is in the UK. If it is known that a person has embarked, enforcement action will cease. For this reason it may be unfair to reject representations to remain on compassionate grounds and sign a deportation order before giving the opportunity for a voluntary departure. However, the benefits of voluntary departure can easily be lost, if the reasons for the decision to deport are used to exclude the person from the UK on an attempt to re-enter. Voluntary departure is not the same thing as supervised departure. Reference to supervised departure has been deleted from the current Immigration Rules but it remains in the IDI, which suggest that it would be appropriate where a person agrees to leave immediately and signs a waiver regarding appeal rights. Supervised departure may be at the individual’s or the Secretary of State’s expense. Like other voluntary departures, supervised departure does not debar the subject from re-entering.” (7) This construction does not amount to allowing the Appellant to evade the deportation process, as the Respondent could have excluded him from entry to the UK under paragraph 320(19) of the Immigration Rules during his absence and, now that he has returned, could sign another deportation order. The possibility of voluntary departure is an important part of the immigration process. (8) Section 3(5) of the 1971 Act provides that a person is liable to deportation if the Secretary of State “deems his deportation to be conducive to the public good”
. As the Appellant was not in the UK as the time the order was signed, this condition was not met – his deportation was not possible and therefore could not be conducive to the public good. (9) The judge was wrong to distinguish the case of Brew. In that case it was argued (albeit unsuccessfully) that the subject of a deportation order had lost the opportunity to leave the country voluntarily when deportation proceedings were initiated without notice having been served upon him. The Appellant submits that the fact the court entertained this argument indicates that it would not have been possible for the Secretary of State to issue a deportation order after Mr Brew had left the country voluntarily (as if this were possible there would be no advantage to the opportunity to depart voluntarily). The Secretary of State did not argue this point in Brew, instead arguing that no advantage was lost as it was ‘unrealistic that he would ever have been allowed back’ had he left voluntarily. The case therefore turned on this latter point. (10) The provisions made with respect to deportation in legislation prior to the 1971 Act also support the Appellant’s submission - see section 3 of The Aliens Act 1905; section 1 of The Aliens Restriction Act 1914; section 9 of The Aliens Restriction (Amendment) Act 1919; article 20(1) of The Aliens Order 1953 (S.I. 1953 No. 1671); the preamble to and sections 6(1) and 9(1) of The Commonwealth Immigrants Act 1962. It is submitted that the predecessor power referred to in this legislation relates to a person within the UK and is a power to remove from the UK.[23]I accept that the normal meaning of “deportation” involves removal of a person from the country and that this will be reflected in the terms of a deportation order made under the 1971 Act. I also accept that if the Respondent knows that a person has left the UK she is likely to make an exclusion order rather than a deportation order. That does not, however, address the key issue in this case of whether a deportation order is invalid and of no effect if, as here, the Respondent makes a deportation order at a time when, unknown to the Respondent, the person to be deported is not in the UK. This must depend on the terms of the 1971 Act.[24]As the Respondent submits, it is section 3 of the 1971 Act which sets out the conditions for liability to deportation. In the present case, the relevant conditions were that the Appellant was not a British citizen and his deportation was deemed by the Respondent “to be conducive to the public good”.[25]Having so determined, notice of intention of deportation was given to the Appellant. He had the right to appeal against the notified decision to make a deportation order, a right which he exercised, but then abandoned.[26]Once the Appellant’s appeal rights were exhausted the deportation order was made pursuant to section 5 of the 1971 Act, which is described as setting out the “procedure for, and further provisions as to, deportation”. I agree with the Respondent that section 5(1) is descriptive of the effects of a deportation order, which is the triple effect of removal, prohibition from entry and the invalidation of any existing leave. Unlike section 3, it does not seek to impose a condition for liability for deportation.[27]Nowhere in the 1971 Act is presence in the UK of the subject of the deportation order made a pre-condition of the making of a valid deportation order. It may be that in such circumstances the first of the three effects of such an order will be rendered otiose but that does not affect the validity of the order, expressly or impliedly.[28]I also consider that there is the force in the point made by the FTT and the judge that to import such a condition of validity would undermine effective immigration control since it would enable and encourage the avoidance of deportation by the simple expedient of being abroad on the day that the order is made.[29]As to the various detailed arguments put forward by the Appellant as summarised above, these are addressed and answered in the judgment. Further and in brief:(1) As to (1), I agree that that the normal meaning of deportation is to remove somebody from a country, but that does not mean that presence in the UK is a pre-condition of the validity of a deportation order. That depends on the provisions of the 1971 Act, not mere language.(2) As to (2), it is correct that a deportation order will order the subject to leave the UK and that this is one of the three effects of such an order. The fact that it may not be necessary to put that part of the order into effect does not invalidate the entire order.(3) As to (3), as section 5(6) makes clear, supervised departure is dealing with an entirely different circumstance, namely that where a person who is liable for deportation leaves the UK to live permanently abroad. In such a case the immigration authorities will have been notified of the person’s intended permanent departure and there will be no need for a deportation order.(4) As to (4) and (5), these are instructions to officials as to how policy should be implemented. They cannot affect the proper construction of legislation – see Mahad v SSHD [2009] UKSC 16,[2010] 1 WLR 48 at [10]-[11] per Lord Brown. Administrative statements of policy cannot invalidate an order provided for in primary legislation.(5) As to (6), the passage in Macdonald is concerned with voluntary or supervised departure which presupposes that the immigration authorities have been notified that the person is willing to leave. In such a case, the making of a deportation order is unlikely but, if such an order was made, it could be said potentially to deprive that person of the opportunity lawfully to re-enter the UK, one of the recognised advantages of such a departure. That is very different to the present case where there was no notification to the authorities of the Appellant’s departure, which was found to be “for the immediate purpose of avoiding deportation proceedings”.(6) As to (7), had the Respondent been informed or known of the Appellant’s departure an exclusion order could have been made. By design, however, she was not so informed.(7) As to (8), the Respondent had deemed the Appellant’s deportation to be in the public good. The prescribed way to challenge such a decision is by appealing against that decision; not by clandestinely leaving the country. If relevant, in circumstances where the Respondent had not been informed of his departure she could reasonably remain of the view that deportation was in the public good.(8) As to (9), this is not a case of voluntary departure to live abroad and the judge was correct to conclude that Brew was of no assistance.(9) As to (10), this simply provides further examples of the normal meaning of deportation and the normal effect of deportation orders, but does not address the essential issue of validity.[30]For the reasons outlined above, and those given by the judge, I would dismiss the appeal on Issue (1). Issue (2) - Whether the incorrect approach under article 27 of the 2004 Citizen’s Directive was applied when the Appellant was refused an EEA residence card.[31]The decision challenged is the Respondent’s refusal to issue the Appellant with an EEA residence card under the Immigration (EEA) Regulations 2006. The 2006 Regulations transpose the Citizens’ Directive 2004/38/EC. The main material provisions of the Directive and the Regulations are set out below.[32]Whereas “family members” are defined under Article 2 as the spouse, civil partner, direct descendants under the age of 21 or dependent direct relatives in the ascending line, “other family members” are covered by Article 3.2(a). Article 3 provides: “Beneficiaries 1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them. 2…. the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons: (a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence… The host Member state shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people”.[33]Recital (6) to the Directive sets out the rationale for extending rights of residence to those other than “family members” as defined in Article 2. Unlike close family members, these “other” family members do not have automatic rights of entry and residence:
“(6) In order to maintain the unity of the family in a broader sense…the situation of those persons who are included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.”
[34]Article 27 appears in Chapter VI of the Directive headed “Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health”. Article 27 itself is titled “General principles” and indicates that Member States may restrict the freedom of movement and residence of Union citizens and their family members, on grounds of public policy, security or health. Article 27.2 provides:
“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]Article 28 of the Directive deals with “Protection against expulsion” and confers greater protection the longer that the Union citizen or their “family members” have been in the host member state. Thus:(1) Union citizens and family members can be expelled only on grounds of public policy or public security (Article28.1 );(2) Union citizens and family members who have the right of permanent residence, usually acquired after 5 years’ residence which is in compliance with the Directive in the member state, can only be expelled on “serious” grounds of public policy or public security (Article28.2 );(3) Union citizens who are minors or who have resided in the host member State for the previous 10 years can only be expelled on “imperative” grounds of public security (Article28.3 ).[36]The most relevant provisions of the domestic Regulations transposing the Directive are Regulations 7, 8, 17, 19, 20(1) and 21.[37]Regulation 7 defines a “family member” in materially the same terms as Article 2. It is accepted that the Appellant is not a “family member”.[38]Regulation 8 defines an “extended family member” in terms which would include the Appellant. It provides, so far as is material:
“8(1) In these Regulations ‘extended family member’ means a person who is not a family member of an EEA national under regulation 7(1)(a)(b) or (c) who satisfies the conditions in paragraph (2),(3),(4) or (5). (2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and- (a) the person is residing in a country other than the United Kingdom …and is dependent upon the EEA national or is a member of his household; (b)... (c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.”
[39]Regulation 11 provides that a “family member” of an EEA national “must be admitted to the UK” if the requirements of that Regulation are met. Under Regulation 19(1) such a person is not entitled to be admitted “if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21”.[40]Under Regulation 17(1) and (2) the Respondent “must” issue a residence card to a “family member”. Under Regulations 17(4) and (5) the Respondent “may” do so to an “extended family member”. Regulation 17(4) and (5) provide:
“17(4) The Secretary of State mayissue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if- the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and in all the circumstances it appears to the Secretary of State appropriate to issue the residence card. (5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.”
[41]Regulation 20 provides that the Secretary of State may refuse to issue, revoke or refuse to renew a residence card if the refusal is justified “on grounds of public policy, public security or public health”.[42]Regulation 21 sets out the principles by which decisions taken on these three grounds are to be made:
“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) A relevant decision may not be taken to serve economic ends. ….. (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.”
[43]In summary, under the Regulations a family member generally has an automatic right of entry whilst the issue of a residence card to an extended family member is a matter for the discretion of the Respondent under Regulation 17(4) and (5). If, however, the decision to refuse to issue a residence card to an extended family member is taken on public policy, public security or public health grounds then that decision must be taken in accordance with the provisions of Regulation 21. As the judge recognized, and the Respondent accepts, this will require consideration of whether the personal conduct of the person concerned represents “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” (Regulation 21(5)(c)).[44]The judge rejected the Appellant’s arguments challenging the Respondent’s decision to refuse to issue an EEA residence card for the following principal reasons:(1) The Appellant is an ‘other family member’ for the purposes of the Directive and does not fall within Article 27.(2) This interpretation did not require referral to the CJEU.(3) The Appellant does benefit from protection under the Regulations.(4) The reasons given by the FTT were sufficient to justify a finding that the Appellant represented a “genuine, present, and sufficiently serious threat affecting one of the fundamental interests of society” and thereby to satisfy the requirements of the Regulations, notwithstanding that the Tribunal had not referred directly to the applicable provisions.[45]The Appellant challenges the decision of the judge on the following principal grounds:(1) The judge erred in finding that he is not a family member for the purposes of Article 27(1) of the Directive (transposed by Regulation 21 of the Regulations).(2) The judge erred in concluding that a reference to CJEU was not necessary given the two possible views which had been identified as to its correct interpretation.(3) The judge erred in finding that the Appellant posed a “genuine, present, and serious threat”. Greater weight should have been given to the fact that there was a single conviction at a young age, and a low risk of reoffending.(4) The judge erred in accepting the failure of the FTT to refer to the correct test and principles applicable to the Appellant’s case under the Regulations. This alone should have been sufficient to find that the determination of the FTT was flawed.[46]In relation to grounds (1) and (2), the Respondent acknowledges that Article 27 as transposed is capable of applying to extended family members. This is because Chapter VI’s heading includes restrictions on rights of “entry” not just existing “residence”. In any event, the principles governing EEA decisions are incorporated into the domestic Regulations for decisions on issuing residence cards to extended family members by Regulations 17(5), 20(1) and 21.[47]The critical issue is therefore grounds (3) and (4) and whether an error of law has been made in the application of the Regulations.[48]In this connection, it is relevant to consider the history of the decision making in this case.[49]In the Respondent’s refusal letter of 8 August 2011, it was stated that extended family members are only entitled to a residence card under Regulation 17(4)(b) “if in all the circumstances it appears to the Secretary of State, as a matter of her discretion, appropriate to issue the card”. Reasons were then given as to why the discretion was not to be exercised in the Appellant’s favour. These included reference to the Appellant’s conviction for seeking leave to enter the UK by deception and his sentence of 15 months “imprisonment” (in fact detention in a Young Offenders Institution). No reference was made to Regulation 21 or the requirement that the Appellant represent “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.[50]In the Respondent’s letter of 11 January 2012, providing supplementary reasons for the refusal letter, reference was again made to the Respondent’s discretion under Regulation 17(4)(b) and the reasons for not exercising that discretion in the Appellant’s favour. Again, those reasons included reference to the Appellant’s conviction and “imprisonment”. In conclusion, it is stated that:
“Therefore it has been decided to maintain the decision to refuse to issue the confirmation that you seek with reference to Regulations 8(2), 9(2) and 17(4)(b) & 17(5)”
. Again, no reference was made to Regulation 21 or the requirement that the Appellant represent “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.[51]In the FTT decision it is noted under the heading “Legal Framework” that the Respondent considered the Appellant’s application “under the provisions of regulations 8, 9 and 17” of the Regulations. Under the heading “Issues in the Appeal”, the issues relating to the Regulations are described as being:
“(a) The appellant satisfies the requirements under Regulations 8, 9 and 17(4) of the EEA regulations [2006] for the grant of a right of residence. (b) In terms of Regulation 17(4) it would be appropriate in all the circumstances to grant the appellant a right of residence. ….”
[52]It is to be noted that no reference is made to Regulation 21 either in describing the parties’ cases or in defining the issues relating to the Regulations.[53]The FTT judge described “the substantive question in this appeal” as being “whether it would be appropriate to grant the appellant a residence permit in terms of section 17(4) of the EEA Regulations [2006]”. He concluded that it would not be appropriate to grant the Appellant a residence card and that the Respondent’s refusal to do so was a proper and lawful exercise of her discretion. The reasons given for so concluding were as follows:
“[22] It seems to me that the validity of the deportation order in turn depends upon whether the appellant is entitled to a residence permit as the extended family member of a person returning to the United Kingdom having exercised Treaty Rights in an EEA state. The substantive question in this appeal therefore is whether it would be appropriate to grant the appellant a residence permit in terms of section 17(4) of the EEA Regulations [2006] . Paragraph 17(4) confers a discretion on the decision maker. In my view it would not be appropriate in all the circumstances to grant the appellant a residence permit. For reasons that I now set out below I find that the respondent's refusal to grant the appellant a residence permit is a proper and lawful exercise of his discretion. (i) In considering whether a discretion should be exercised in the appellant's favour in granting him a residence permit I propose to disregard the fact that a deportation order was signed against the appellant in January 2009. I consider however that I am entitled to take into account that he had been convicted of a serious criminal offence. The appellant forged medical evidence to support his application for leave to remain. The gravity of this offence is reflected in the length of sentence that he received. (ii) The appellant states that he is contrite but it is not without significance that not very long after his release from prison he made an application for leave to remain as the spouse of an EEA national exercising Treaty Rights in the UK. That application was rejected on the grounds that his spouse was already married. I find as a fact the evidence established on a balance of probabilities that the application the appellant made to remain as a spouse was with the full knowledge that his spouse was already married. It was a further attempt at deception. In his evidence at this hearing the appellant has not made any attempt to set out the background to his relationship with the EEA national that he married in 2008. It is apparent from the evidence that the appellant did not at any stage inform the respondent that the person he claimed to have married was already married. The appellant's application was rejected on the basis of the respondent's enquiries that revealed this to be a sham marriage. The appellant has not explained what motive the EEA national would have had for not disclosing to him that she was already married. One cannot think of a reason why she should seek to deceive him if this was a bona fide relationship as the appellant claims. The appellant's marriage to an EEA national and subsequent application as her spouse must also be viewed against the context of a further attempt on his part to gain leave to remain after his use of deception in a previous application led to his criminal conviction and sentence. (iii) I have considered the contents of the psychiatric reports. I accept without hesitation that this appellant poses a low risk of re-offending. I also accept that the motive for his offence of deception was in order to try to gain leave to remain in the UK. (iv) The use of deception has the potential to undermine the efforts by member states to maintain effective systems of immigration control. (v) I accept that appellant has two sisters in the United Kingdom. I accept that he has a close relationship with his sisters and that the bonds between them are stronger because of his experiences in Sierra Leone where both his parents were killed. I also accept that he has a strong relationship with his nephews and that he plays a supportive role in their upbringing. (vi) I accept that the appellant has been financially dependent on his sister Jennifer. I take into account the tragic circumstances concerning the death of his parents in Sierra Leone. I do not however consider that his dependence on his sisters in the United Kingdom and in particular Jennifer, goes beyond normal emotional ties. In my view it has been a dependency based mainly on his need financial support because of appellant immigration status.” (vii) The appellant is in good health and has acquired a good standard of education in the United Kingdom. He did attempt to enter into a marriage in 2008. The evidence suggests that he is capable and indeed intends to establish an independent family unit. His dependence on his sister Jennifer it would seem has been forced upon him because of his immigration status and his consequent inability to earn an independent living. (viii) I accept that he has spent more than twelve years in the United Kingdom. He has in that time become accustomed to the life in the United Kingdom and has integrated to the extent that he was able to enter medical school in 2005. I take into account the considerable amount of voluntary work that he engages in and that he has formed strong friendships and social relationships in the UK. (ix) I accept that he would have difficulty in locating close family members in Sierra Leone. He did however spend his formative years in Sierra Leone as he arrived in the United Kingdom at the age of fifteen. He has attained a good standard of education. He has attained above average grates at A-level in very useful science subjects. The situation in Sierra Leone has become relatively normal and he would not be at risk of serious harm. He would be able to use the skills and education he has acquired in the United Kingdom to good effect. I accept that he has a close bond with his sisters and in particular with his eldest sister Jennifer who has been responsible for his financial maintenance. (x) He is close to his nephews and nieces. The appellant however would be able to receive his United Kingdom relatives in Sierra Leone as visitors. He would be able to continue contact with them through modern means of communication. His nephews would be able to contact him and visit him. I do not consider that his removal would in any way jeopardise the best interests of his young nephews and nieces. They have both parents living with them in the UK and that would continue to be the case after the appellant's removal. It is true that the appellant will suffer a measure of inconvenience and short term hardship in returning to a country that he left when he was fifteen years of age about twelve years ago. He has however the potential advantage of being able to continue to rely in the short term on his sisters in the UK for financial support. He also has the advantage of having gained a good standard of education that will give him the potential to earn an income upon his return to Sierra Leone or indeed to continue his medical studies at an institution in Sierra Leone.”
[54]It is to be noted that no reference is made in those reasons to Regulation 21 or to whether the Appellant represented “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. This specific issue is not addressed, nor are findings made as to the existence of such a threat.[55]From the above summary, it is reasonably apparent that Regulation 21 was not considered by the Respondent in her refusal letters or by the FTT in its judgment on appeal from that decision. It would appear that this was not a matter which at that stage had been relied upon by the Appellant, but Regulation 21 has to be complied with where decisions are taken on public policy or public security grounds, and one of the grounds relied upon is such a ground, namely the Appellant’s criminal conviction.[56]Permission to appeal was refused by the FTT. Permission was then sought from the Upper Tribunal and in the grounds of appeal reliance was placed for the first time on Article 27, it being noted that the criminal conviction was “the most significant factor weighing against the Appellant”, that it is “a public policy/public security ground” and that neither the Respondent nor the FTT had “considered the impact of the offending in accordance with the general principles set out in Article 27”. In refusing permission the Upper Tribunal judge noted this ground, but dismissed it on the basis that Article 27 “refers to family members as defined in Article 2”. It is now accepted by the Respondent that this is not correct and that in any event the issue had to be considered in accordance with the principles set out in Regulation 21.[57]The judge concluded that the FTT’s approach and reasoning involved no error of law. Her reasoning was as follows:
“89 As to the Claimant's past conviction: the FTT recorded that the Claimant had committed a serious criminal offence in forging medical evidence to support his application for leave to remain in 2003 (para 22(i)). The FTT was entitled to place some reliance on that conviction: that much is envisaged in the Regulations. The FTT then referred to the Claimant's further attempt at deception by marrying a person, knowing her to be married already; it considered that 2008 deception in the context of the previous conviction (para 22(ii)). The FTT then went on to consider various other various factors. It is clear that the FTT did not treat the Claimant's conviction as the sole reason for upholding the Defendant's refusal. 90 In weighing the fact of conviction, the FTT reminded itself (and accepted) that the Claimant was at low risk of reoffending (para 22(iii)). But the factors already recorded in paras 22(i) and 22(ii) were sufficient to amount to a coherent and rational basis for concluding that there was a genuine, present and serious threat affecting a fundamental interest of society. The threat was of dishonest conduct in dealings with the immigration authorities. The fundamental interest of society was the maintenance of an effective system of immigration control. 91 This was not to have regard to matters of general prevention, isolated from the case. Rather, this was to have regard to the particular features of the Claimant's own past: he has a track record of dishonesty (including criminal dishonesty) in his dealings with the immigration authorities. Therefore, the conclusion at para 22(iv) was not a conclusion based on issues of general prevention, but a conclusion drawn from the facts of this case, which reflected the particular threat posed by this Claimant's continued presence in the UK. 92 The principles listed at Regulation 21 comfortably extend to consideration of the various factors listed by the FTT at para 22. I do not consider that there was any error of law in the FTT's reasoning.”
[58]The main difficulty with this approach is that failing to consider and apply the correct test is itself an error of law. In considering the impact of the Appellant’s conviction the Respondent was required to have regard to Regulation 21 and whether the Appellant represented “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”. She did not do so. On appeal the FTT judge was similarly required to have regard to those matters. He did not do so.[59]It may well be that the FTT did identify the considerations relevant to Regulation 21 and whether the Appellant represented the requisite threat, but he did not ask or answer that question.[60]Nor is this a case where it can be said that it is obvious what the answer to that question would have been, had it been addressed. The FTT judge accepted without hesitation that the Appellant poses a low risk of reoffending. Further, his offence had been committed in 2003, when he was still a youth, and there had been no offending since then. Bearing in mind also the nature of the offence, there was clearly considerable room for argument as to whether the threat he represented was “genuine”, “present” and “sufficiently serious” for the purposes of Regulation 21.[61]In my judgment, this is therefore a case in which there is a clear error of law in the FTT’s decision. I would accordingly allow the appeal on Issue (2) and remit the matter for reconsideration by the Upper Tribunal. Lord Justice Lewison[62]I agree. Lord Justice Jackson[63]I also agree.