Schmelz, R (on the application of) v Immigration Appellate Authority [2003] EWHC 1859 (Admin)

Case No CO/4031/2002[2003] EWHC 1859 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Thursday, 15th July 2003
Strand
London WC2
B E F O R E:
MR JUSTICE SULLIVAN
Between
THE QUEEN ON THE APPLICATION OF SCHMELZClaimant-v-
Between
IMMIGRATION APPELLATE AUTHORITYDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S JUSS (instructed by Immigration Advisory Service) appeared for CLAIMANTMISS S BROADFOOT (instructed by Treasury Solicitors) appeared for DEFENDANT
J U D G M E N T(As approved by the Court)
Crown copyright©Tuesday, 15th July 2003
[1]MR JUSTICE SULLIVAN: This is an application for judicial review of a determination of the Immigration Appeal Tribunal notified on 29th May 2002 refusing the claimant leave to appeal against a determination of an adjudicator, promulgated on 24th April 2002, dismissing the claimant's appeal against a decision by the Secretary of State to make a deportation order against him under section 3(5) of the Immigration Act 1971.[2]The claimant had been convicted on 13th July 1995 of conspiracy to rob and sentenced to 12 years' imprisonment. He had been released on licence from that sentence on 1st March 2002.[3]In its determination the Tribunal said that the Adjudicator had taken account of all relevant matters and carried out the necessary balancing exercise. In these proceedings the challenge therefore focused upon the Adjudicator's determination. On behalf of the claimant Mr Juss submitted that the Adjudicator had failed to take account of matters favourable to the claimant, and that if he had taken account of all relevant matters he had failed to carry out the necessary balancing exercise, and had instead focused simply on the seriousness of the offence.[4]The background to the matter is set out in the Adjudicator's determination. The claimant is a citizen of Germany who was born in November 1950; thus he was 51 years old at the time of the hearing before the Adjudicator on 20th March 2002. The Adjudicator said that the basic facts were not in dispute. The appellant had come to Britain in 1979 and had worked in a business with his uncle. He was granted indefinite leave to remain in 1985. Although he had had a relationship with a woman, Sonya Radmore, that relationship had broken down while he was in prison. The Adjudicator said:
"There was no evidence of his work record in Britain or evidence that he had paid tax and National Insurance here. He does not own property here and has no close relatives in Britain. His mother who is in her 70s lives in a home in Germany. The [Secretary of State's] explanatory statement stated that on 1 March 1994 he was involved with at least six others in the hijacking of an armoured Securicor van and was later found to be the prime organiser of the crime. The van had been on a regular routine journey from Southampton to the Midlands. One of the hijackers had been employed by Securicor, and had delayed activation of the alarm system after his fellow Securicor driver, who was not involved, received a planned phone call claiming that there was a bomb underneath the van which would be detonated if the van did not follow a blue Ford Escort car. The robbery however was abandoned although fire was caused by the thermal cutting rods which were used to get into the van. The appellant had originally claimed that he was innocent of the crime. He told an Immigration Officer who interviewed him before his release that he had worked in Britain as a self-employed market trader and antique shop owner and that he has an offer of employment. The Secretary of State noted, in the explanatory statement that 'the judge had stated that the case against the appellant was overwhelming, and he was satisfied the appellant was the person who masterminded and recruited people for a very carefully planned robbery involving very considerable sums of money. In sentencing he had borne in mind the fact that no weapons had been used or physical injuries inflicted. A Securicor van driver had however been made to contemplate a most horrible death by being blown to bits, and never seeing his family again."
The Adjudicator then referred to the claimant's witness statements which stated that jobs were available for him. Letters from the prospective employers were submitted. The Adjudicator noted that the claimant hoped that he would be able to resume his relationship with Sonya Radmore, although she was not in court. The claimant also said that he had last seen his mother 15 years ago and was sure he would have difficulties in Germany. In paragraph 7 the Adjudicator said:
"In reply to questions from Mr Sigley [on behalf of the Secretary of State] he said that he had not started work but the job offer was subject to the results of the appeal. He said that he had been unable to work for some time before he went to prison because of a car accident in 1992. He confirmed he had a conviction for burglary in 1985."
[5]The Adjudicator then dealt at some length with evidence given by the appellant's probation officer, Ms Barrett. She gave evidence by reference to a report which she had prepared dated 20th March 2002:
"In it she stated that the appellant had been released on licence, which would expire in March 2003. She said that his Personal Officer has spoken highly of his integrity and good behaviour and impeccable manners and that he had managed the prison library which was a position of trust. He had had supervision while in prison and had undertaken a number of courses. She referred to a Public Protection Review held between probation colleagues, a Senior Probation Officer and the police which had assessed the appellant's risk of re-offending and risk to the public as low and stated that no further reviews would be necessary. She added 'by completing the Essential Thinking Skills accredited programme, Mr Schmelz has significantly reduced his risk of re-offending and his OGYRS Reconviction rate is minimal - 7%'. She referred to his friends within the community, his offer of employment and said although he experienced some initial difficulties on release the care and support he received from friends which was indicative of their loyalty had helped him to rehabilitate at a steady pace. She felt that the work which had been put into helping the appellant had had a positive outcome and recommended that that constituted a basis for remaining in Britain."
The Adjudicator then referred to Ms Barrett's explanation of the Offender Group Reconviction Scale Version 2. On the basis of that analysis the claimant's OGRS score for a reconviction for any offence was 7 per cent:
"OGRS estimates that the offender is of: Some risk for reconviction of a sexual or violent offence"
. The document points out that the OGRS score is an estimate of the probability that offenders with a given history of offending will be reconvicted within two years of sentence or release if sentenced to custody. It does not define the probability that a particular offender will be reconvicted. It also points out that it is only one aspect of risk assessment and that many other factors have to be taken into account when assessing the risk posed by a particular offender. It is an aid to judgment; it is not a substitute for judgment.[6]In answer to the question "Previous conviction for burglary," the OGRS answered "No". Cross-examination of the claimant had elicited the fact that he had been convicted of burglary in 1985 (above), but the Adjudicator took no point on this discrepancy.[7]In cross-examination Ms Barrett was asked about an earlier assessment report, dated 6th August 2001, which had stated that the likelihood of re-offending was high because the claimant had not engaged with any offence focused work and maintained that all the time he was innocent. Ms Barrett's response to that was that the claimant had made considerable progress since that report had been made.[8]The Adjudicator's determination records that the appeal was then adjourned for written closing submissions to be made. On behalf of the Secretary of State reference was made to the judgment of the Court of Appeal in Marchon:
"... which stated that deportation was appropriate despite there being no propensity to offend when the offence was seriously sufficient."
It was also contended on behalf of the Secretary of State that at 51 the claimant would be able to readjust to life in Germany.[9]Paragraph 12 of the Adjudicator's determination is as follows:
"In reply Miss Benjamin [who appeared on the claimant's behalf] emphasised that the appellant was exercising Treaty Rights and said that the Rules relating to the deportation of EU individuals made it clear that deportation must only be on the grounds of public policy, public security or public health and must be based exclusively on personal conduct as a present threat to the requirements of public policy and the measures must be a proportionate response to the risks posed by the person's conduct. She quoted from Macdonald's Immigration Law and Practice which stated 'This means that there can be no automatic deportation based simply on the gravity of the offence without consideration of the propensity to reoffend and all the individual circumstances'. She emphasised the terms of Council Directive 64/221 which stated that previous convictions should not in themselves constitute grounds for taking such measures and said that the decision in Bousignore said that a person should not be deported as a deterrent or preventative measure. She said that the law indicated that deportation was not a proportionate response if there was no, or little, risk of reoffending. She emphasised the evidence of Ms Barrett and set out a number of facts which she said I should take into account to which I have referred below."
[10]Before turning to paragraph 13 of the adjudication, in which the Adjudicator drew the threads together, it is helpful to consider the submissions to which he was responding in that paragraph. In her written submissions Miss Benjamin had indeed emphasised the fact that this was an EU case, and submitted that:
"... the propensity to re-offend is a crucial factor, which must be taken into account. If there is no or a low risk of propensity to re-offend then deportation is not a proportionate response."
She drew the Adjudicator's attention to a number of cases, including Bousignore, as authority for that proposition. In relation to proportionality, her submission said:
"... we would ask the Adjudicator to also have regard to the following: 1) The Criminal Court who sentenced the appellant made no recommendation for deportation ... 2) Consideration must be had to the fact the appellant maintains his innocence. Whilst accepting that the Adjudicator cannot go behind the decision making of the Criminal Court which convicted the appellant, it should be borne in mind that this was not a crime involving physical violence. 3) The appellant has been in the United Kingdom for 23 years. This is a considerable length of time. He has in fact spent the greater portion of his adult life in this country. 4) At the age of 51 it would prove difficult for the appellant to re-adjust to life in Germany. He has no friends nor family there other than an elderly mother. 5) Conversely, the appellant has a network of friends in the UK who have stood by him and have evidenced their willingness to support him since his release from prison. 6) Indeed, the appellant has been offered employment in the UK as a result of these contacts. We submit that with a criminal record, no friends or contacts in Germany and no proper employment record for the past 20 years, it would prove extremely difficult if not impossible for the appellant to find or keep a job in Germany. The likelihood therefore is that he faces unemployment and no social support network. It is difficult to see how the appellant could establish himself in society in these circumstances. 7) In the UK however, the appellant has the opportunity to re-integrate and make a valuable contribution."
[11]In her written submissions, Miss Sigley mentioned, inter alia, the fact that the claimant had no strong family connections in the United Kingdom, that his previous relationship with Sonya Radmore was not likely to recommence, and that his personal history "with regard to previous employment and offences can at best be described as unstable".[12]The Adjudicator responded to these points in paragraph 13 of his determination, which is as follows:
"In determining this appeal I take note of the criteria in paragraph 364 of HC395 and the determinations of judgments to which I have been referred by both Miss Sigley and Miss Benjamin. While I note that the appellant has been in Britain since 1979 I have no evidence of his employment during that time - there is no evidence that he paid tax or national insurance contributions. He owns no property here. He has no family here - I note that Miss Radmore did not attend the hearing and I consider that the appellant's claim that he hopes to get back together with her is not a claim on which I can place weight. I have taken into account the letter from the brother of Miss Radmore and the fact that he has received offers of employment but given his lack of an employment record I place little weight on these offers although I note that attached to Miss Benjamin's submissions was a letter from Southern and Continental Collection Services saying the appellant was working for them and he was therefore not working for one of the potential employers when letters were placed before me at the hearing. I place no weight on assertions made by Miss Benjamin that the court made no recommendation for deportation, as there is no evidence that that point was considered, or on the fact that he has maintained his innocence as he has been convicted. I do not see that the appellant would be banned from work in Germany because he has maintained no contacts there - he would be able to use his skills to apply for work as it appears he did when he obtained the job he now has here. I find therefore that there is little to weigh against the fact that this appellant had been sentenced for a particularly serious crime - the sentence of 12 years reflects that this was an aggravated theft which was combined with the threat of violence. I note the judgment of the Court of Appeal in Marchon and find that the fact that the risk of reoffending is not high does not outweigh the public interest in this appellant's deportation. He is being deported not to deter others from similar crimes but because the seriousness of the crime is such is that it is in the public interest that they should be protected from even a small risk of such a crime being committed again. Accordingly I dismiss this appeal."
[13]It is common ground that the test to be satisfied before a deportation order can be made is higher where the person to be deported is a national of an EU member state: see Marchon v Immigration Appeal Tribunal [1993] Imm AR 384 at 387.[14]In non-EU cases the relevant considerations are set out in paragraphs 362 to 364 of HC395. The Secretary of State may deport a person if he deems that person's deportation to be conducive to the public good. A person in the position of the claimant "may not be deported from the United Kingdom on the ground that removal is conducive to the public good except where this is justified on grounds of public policy, public security or public health": see Marchon at page 386. In Marchon the Court of Appeal referred to the decision of the European Court in R v Bouchereau [1978] 1 QB 732.[15]In Bouchereau the ECJ was asked to consider "whether the wording of article 3(2) of Directive No 64/221, namely, that previous criminal convictions shall not 'in themselves' constitute grounds for the taking of measures based on public policy or public security means that previous criminal convictions are solely relevant in so far as they manifest a present or future propensity to act in a manner contrary to public policy or public security ..." The court answered that question in paragraphs 27 to 29 of its judgment as follows:
"27. The terms of article 3 (2) of the Directive, which states that 'previous criminal convictions shall not in themselves constitute grounds for the taking of such measures', must be understood as requiring the national authorities to carry out a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy, which does not necessarily coincide with the appraisals which formed the basis of the criminal conviction. 28. The existence of a previous criminal conviction can, therefore, only be taken into account in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy. 29. Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy."
The court also considered the meaning of public policy in article 48.[16]In paragraph 33 of its judgment the court emphasised that where the concept of public policy is used as a justification for derogating from the fundamental principle of freedom of movement for workers within the EU, then it must be interpreted strictly. Paragraph 34 notes that the competent national authorities must be allowed an area of discretion within the limits imposed by the treaty. Paragraph 35 is as follows:
"In so far as it may justify certain restrictions on the free movement of persons subject to Community law, recourse by a national authority to the concept of public policy presupposes, in any event, the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society."
[17]In B v Secretary of State for the Home Department [2000] Imm AR 478 the Court of Appeal was concerned with the case of an Italian citizen who had arrived in this country with his parents aged seven and lived in the United Kingdom for over 35 years. He had been convicted of persistent sexual abuse of his daughter and sentenced to five years' imprisonment. He also had a previous conviction for assaulting his minor son. The Secretary of State concluded that it would be conducive to the public good to deport him. The Tribunal upheld that decision. The Court of Appeal concluded that in the light of the appellant's very long residence in the United Kingdom, applying the principle of proportionality, deportation was a disproportionate response. Simon Brown LJ said this in paragraph 45:
"The deportation of an EC national can be justified only by the existence of 'a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society' - see R v Bouchereau... And even if such a threat exists, deportation, because it interferes with the fundamental right of free movement of workers (article 48, now 39, of the Treaty of Rome) and the right to respect for private life (article 8 of the Convention), must be proportionate. The requirement for proportionality in this context means that deportation must be appropriate and necessary for the attainment of the public policy objective sought - here the containment of the threat - and also must not impose an excessive burden on the individual, the deportee."
[18]In that case the court concluded that, but for the fact that the appellant had lived in England since the age of seven, deportation would have been a proportionate response. In paragraph 35 Sedley LJ said:
"This is an offender whose propensity to offend may still exist, but whose opportunities to offend are now small. What really matters is the seriousness of what he has already done to his own children. The family factors are not strong: his parents, with whom he is living as a condition of his bail, have other children here to lean on. He is not without relatives in Sicily, and he has business skills which will travel with him. If it stopped here, I would hold that deportation was a proportionate response."
Sedley LJ then went on to consider the further factor, which he said was one of real weight, that that appellant had lived in this country since he was a small boy. Simon Brown LJ adopted a similar approach: see paragraphs 46 to 48 of his judgment. Ward LJ agreed with both judgments.[19]Did the Adjudicator carry out the necessary balancing exercise in the present case? In contending that the Adjudicator failed to do so, Mr Juss focused on the latter part of paragraph 13 of the determination, contending that the Adjudicator focused simply upon the seriousness of the offence.[20]In my judgment, that is not a fair reading of the Adjudicator's determination. It is trite law that decisions of this kind have to be read as a whole, reliance should not be placed on extracts plucked out of context. It is necessary to read paragraph 13 as a whole and in the context of the written submissions to which the Adjudicator said he was responding.[21]There is no suggestion that the Adjudicator either misrecorded any of the evidence, or that he omitted any relevant point in the claimant's favour in his recital of the background facts and the parties' cases. In particular, the Adjudicator set out a very full account of the evidence that had been given by Ms Barrett, the claimant's probation officer, and her explanation of the OGRS score.[22]I have set out above the written submissions presented by Miss Benjamin on behalf of the claimant, which invited the Adjudicator to have regard to a number of specific matters when assessing the proportionality of deportation. One has only to read those points and then read paragraph 13 to appreciate that the latter is a direct response to all of the points that were being argued on behalf of the claimant as to why it would be disproportionate to maintain the deportation order. Thus, the Adjudicator responded specifically to the proposition that the court which sentenced the appellant had made no recommendation for deportation; to the proposition that the appellant had maintained his innocence; to the proposition that it would be difficult for the appellant to readjust to life in Germany; to the proposition that the appellant had been offered employment in the United Kingdom, and so forth.[23]Mr Juss placed considerable emphasis in his submissions upon the fact that this was not an ordinary paragraph 364 of HC395 case; it was an EU case, where a higher threshold applied. That submission is expressly recorded in paragraph 12 of the Adjudicator's determination. If one reads Miss Benjamin's written submissions one can see that the Adjudicator has distilled the essence their essence: "... the Rules relating to the deportation of EU individuals made it clear that deportation must only be on the grounds of public policy, public security or public health and must be based exclusively on personal conduct as a present threat to the requirements of public policy".[24]Given the emphasis on treaty rights, the claimant's past employment record (references to "employment" include self-employment) and also his prospects for future employment were of particular relevance, since the treaty is particularly concerned to secure freedom of movement for employment and economic purposes throughout the Community.[25]Having heard the evidence, the Adjudicator made it plain in paragraph 13 of his determination that he was not impressed with the evidence relating to the claimant's past employment record or with his prospects for future employment. Submissions had been made about that issue. The Home Office had argued that the claimant's previous employment record was "best described as unstable". In essence, the Adjudicator accepted that submission; he was entitled to do so upon the evidence before him.[26]In addition to the employment matters with which the treaty is particularly concerned, the Adjudicator looked at the claimant's ties, whether of property or relationships, in the United Kingdom and concluded that he owned no property in this country, that he had no family here, and that weight could not be placed upon his claim that he hoped to get back together with his former partner, Miss Radmore. Mr Juss points out that the claimant did at one time have property but he had to dispose of that property on going into prison.[27]The fact remains that these were all particularly relevant factors in striking the balance. Plainly, if the claimant had a solid work record in this country and convincing prospects for future employment, if he had significant property in this country, if he had significant family ties, those would all have been matters which would have weighed in the balance in his favour. But having considered the matters to which he had been referred by Miss Benjamin, the Adjudicator concluded that there was little to weigh against the fact that the claimant had been sentenced for what he described as "a particularly serious crime".[28]In addition to these matters, Mr Juss referred to the length of time which the claimant had been in this country, to his age and to the fact that he had suffered from an injury.[29]It is plain that the Adjudicator had regard to those matters. He commenced the balancing exercise in paragraph 13 by noting that the claimant had been in Britain since 1979. At the outset of his determination he had recounted the claimant's date of birth, and there is mention also of the fact that he had been unable to work for some time before he went to prison because of his car accident in 1992. There is a further reference to a medical report, which referred to various problems which the appellant had had in his legs and hips.[30]Upon the face of the determination, the Adjudicator did carry out a balancing exercise: he expressly weighed the factors said to be in favour of allowing the claimant to remain in the UK against the seriousness of the offender. In doing so he did consider all of the material considerations. There is nothing to indicate that he failed to consider a factor that had been advanced on behalf of the claimant. Having heard the evidence, he was entitled to conclude that there was little to weigh against the seriousness of the offence. It is true that the claimant had been in this country for 21 years, but he had not arrived as a child, as was the case of the appellant in the B case, he had arrived when he was 29 years old, and nearly 21 years had been spent in prison.[31]Since the Adjudicator referred to the submission made on the claimant's behalf as to the approach to be adopted in relation to the deportation of EU individuals, and accurately summarised that submission, it is not realistic to submit that he then failed to have regard to that test when drawing the threads together in the next paragraph of his determination. As I have mentioned, he dealt specifically with the matter with which the treaties are particularly concerned, that is to say freedom of movement for economic purposes throughout the community.[32]Moving on from the balancing exercise, Mr Juss accepts that there may be cases, Marchon is one example, where the offence is so serious that, even if there is a small or no risk of re-offending, deportation of an EU citizen may still be justified on the grounds of public policy. However, he distinguishes those cases from the present case because he submits that they were concerned with the kind of offences that can fairly be described as affecting one of the "fundamental interests of society". In B the appellant had been convicted of persistent sexual abuse of his daughter for which he had been sentenced to five years' imprisonment. In Marchon a consultant psychiatrist in a national health hospital had been convicted of smuggling heroin. He was sentenced to 14 years' imprisonment, which was reduced on appeal to 11 years. Mr Juss referred to the fact that the offence was aggravated in that case by the fact that the offender was a doctor, who would have been only too well aware of the grievous effects of heroin addiction.[33]In his submissions, Mr Juss sought to play down the seriousness of the offence in the instant case. He emphasised the fact that there had been no violence and that no-one had been hurt. He submitted there had been "no aggravating features" in relation to the robbery, and that it had been singularly unsuccessful, in effect a botched job.[34]In my judgment, those submissions are belied by the 12 year sentence imposed by the trial judge. This plainly was not A-N-other robbery. The claimant was convicted after a trial. In sentencing him, the trial judge would have been in the best possible position to judge both the seriousness of this particular robbery and also the extent of the claimant's involvement in it. The trial judge was satisfied, and this is plainly reflected in his sentence, that this was a very carefully planned robbery involving very considerable sums of money, and he was further satisfied that the claimant was not merely a foot soldier or a lieutenant in the organisation, he was the person who masterminded and recruited at least six others to participate in the conspiracy. If there had been any basis for contending that the trial judge's assessment of either the claimant's role in the robbery or the seriousness of the robbery was wrong, then that could and should have been the subject of an appeal to the Court of Appeal Criminal Division. In the absence of any successful appeal, the 12 year sentence can properly be taken as a measure of the seriousness of the offence, and the Adjudicator was thus entitled to conclude that this was "a particularly serious crime".[35]I accept that if matters had stood there, then the claimant would have had a legitimate complaint because no account would have been taken of whether or not there was any risk of such a crime being committed again: and hence whether there was a genuine and sufficiently serious threat to the requirements of public policy. It is plain, however, that the Adjudicator did have regard to the probation officer's evidence. He set it out in some detail. She had contended that the risks of re-offending could fairly be described as low. The Adjudicator did not dissent from her assessment. His approach was that given the seriousness of this particular crime, the public should be protected "from even a small risk of such crime being committed again". The Adjudicator was not of course obliged to accept the evidence of the probation officer, but had he disagreed with her assessment of future risk, then one would have expected him to provide reasons for so doing. Thus, Mr Juss might well have had cause to complain if, for example, the Adjudicator had concluded in paragraph 13 that there was a high or medium risk of the claimant re-offending. But he did not. His conclusion was based upon the probation officer's assessment of future risk as being low. He then had to balance that degree of risk against the degree of seriousness of the offence. The fact that he concluded that it was necessary to carry out such a balancing exercise shows that he was well aware of the fact that this was an EU case where deportation could not be justified simply on the basis that the Secretary of State thought it was conducive to the public good, but only if it was justified on the grounds of public policy.[36]The sole remaining question, therefore, is whether the Adjudicator was entitled to conclude that the seriousness of this particular crime was such that it was in the public interest "that they should be protected from even a small risk of such a crime being committed again".[37]In advancing the argument that this conclusion was disproportionate, Mr Juss has not identified any particular feature which would mean that deportation would impose an excessive burden upon the claimant, the deportee.[38]In saying that, I do not ignore the fact that the claimant had been in this country for 21 years at the time of the Adjudicator's decision. Having looked at the evidence, the Adjudicator concluded that this had not resulted in any particular family, property or employment ties. Moreover, this was not a case where the claimant had effectively lived in this country for the whole of his life. As I have said, he arrived in this country when he was 29, and of the 21 years during which he has been living here a not insignificant portion of that time has been spent in prison.[39]Approaching the question of proportionality from the other side of the balance, that is to say the interests of society, Mr Juss submitted that this particular offence did not engage the fundamental interests of society. He referred to the decision of the ECJ in Nazli [2000] ECR1-957. In that case Mr Nazli, a Turkish citizen, was ordered to be deported from Germany following his arrest and conviction for being an accomplice to trafficking 1.5 kilograms of heroin. However, the trial court had suspended his sentence of 21 months' imprisonment given the particular features of the offence and the limited extent of his involvement in it. The ECJ noted in paragraph 59 of its judgment:
"The Court has thus concluded that Community law precludes the expulsion of a national of a Member State on general preventative grounds, that is to say expulsion ordered for the purpose of deterring other aliens ..."
In paragraph 62 it said:
"In the main proceedings, however, it is clear from both the grounds of the order for reference and the very wording of the second question submitted that, in the view of the national court, the measure adopted to expel Mr Nazli is capable of justification only on the basis of general preventative grounds having the sole objective of deterring other aliens."
Thus, the court concluded that expulsion was contrary to Mr Nazli's treaty rights.[40]Mr Juss relies upon paragraph 58 of the judgment in Nazli, which is as follows:
"While a Member State may consider that the use of drugs constitutes a danger to society such as to justify, in order to maintain public order, special measures against aliens who contravene its laws on drugs, the public policy exception that all derogations from a fundamental principle of the Treaty must nevertheless be interpreted restrictively, so that the existence of a criminal conviction can justify expulsion only in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy..."
He seeks to distinguish cases such as Marchon, involving drug importation, or cases where serious sexual offences have been committed, which any right thinking person would find utterly repugnant, from the present case.[41]As I have already mentioned, this cannot fairly be described as A-N-other robbery. It was a serious conspiracy, very carefully planned, and involving very considerable sums of money. It was open to the Adjudicator to conclude that this was an offence which was sufficiently serious to engage the fundamental interests of society. Even though no violence had been used, a threat of extreme violence, blowing up the vehicle, had been made.[42]The Adjudicator made it very clear that the claimant was not being deported to deter others from similar crimes, which would have been contrary to the decision in Nazli. He concluded that deportation was justified because the seriousness of the crime was such that the public should be protected from even a small risk of repetition. He reached that conclusion having placed into the balance all of the factors that had been urged on behalf of the claimant.[43]In my judgment, it cannot be said that in the circumstances of this case the deportation order was disproportionate. For these reasons, this application must be refused.[44]MR JUSS: My Lord, there is just the one point on which I seek permission to appeal to the Court of Appeal. That is whether it can be said that a lengthy period of imprisonment for 12 years can be equated with the fundamental interests of society. Given that that is a very real issue that could be visited by the Court of Appeal I wonder whether your Lordship might grant permission to appeal just on that point.[45]MR JUSTICE SULLIVAN: Yes, thank you. What do you want to say about that, Miss Broadfoot?[46]MISS BROADFOOT: My Lord, the question that is put is, can 12 years' imprisonment engage the fundamental interests of society. In my submission, your Lordship's judgment did not say that they were. The fundamental interests of society were engaged because of the seriousness of the offence, it was reflected in the sentence but it is not dependent or determined entirely by the sentence. So on that basis, my Lord, I would oppose an application for leave to appeal.[47]MR JUSTICE SULLIVAN: Yes. Thank you. Not without some hesitation, Mr Juss, I give you permission to appeal.[48]MR JUSS: I am grateful, my Lord.[49]MR JUSTICE SULLIVAN: I bear in mind the subject matter, and it seems to me it is appropriate that if you want to argue this in front of the Court of Appeal you should have the opportunity to do so.[50]MR JUSS: Thank you. My Lord, I am legally aided, if I could have the appropriate legal order as well.

MR JUSTICE SULLIVAN: Yes.

[52]MISS BROADFOOT: My Lord, I would simply say no order for costs, the Secretary of State is not seeking its costs.

MR JUSTICE SULLIVAN: No order for costs other than your legal aid assessment.