B v Secretary Of State For Home Department

Deportation of an EU national requires a genuine and sufficiently serious threat to a fundamental interest of society. Even where that threshold is met, deportation must be proportionate. The court must assess whether it is appropriate and necessary to achieve the public-policy objective and whether it imposes an excessive burden on the individual. On a statutory appeal, proportionality is a question of law. The appellate court must form its own view, while respecting primary factual findings and the tribunal’s evidential advantage. Article 8 private-life interests are additional to free-movement rights. Near-lifelong residence and social integration may make deportation, in substance, akin to exile and disproportionate despite very serious offending.

The appellant, an Italian national who had lived in the United Kingdom since childhood, appealed against an Immigration Appeal Tribunal decision upholding his deportation under section 3(5) of the Immigration Act 1971. His deportation followed convictions for prolonged sexual abuse of his daughter and an earlier assault conviction.

The IAT accepted the seriousness of the offending and found a propensity contrary to public policy. It treated the relevant human-rights considerations as covered by European Union principles. The central questions were whether there was a sufficiently serious present threat and whether deportation was a proportionate response, having regard also to Article 8 of the European Convention.

1. Appeal allowed. The IAT’s decision, and consequently the Home Secretary’s decision, could not stand. The appeal was allowed with costs.
2. Under Article 39 of the Treaty of Rome and Article 3 of Directive 64/221, deportation of an EU national requires personal conduct amounting to a genuine and sufficiently serious threat affecting a fundamental interest of society. Previous convictions are relevant only insofar as the circumstances disclose such a present threat. Sufficiently serious offending may satisfy the public-policy threshold with or without a propensity to reoffend.
3. Deportation must nevertheless be proportionate. The measure must be authorised by law, respond to a pressing social need, be appropriate and necessary to the legitimate public-policy aim, and avoid imposing an excessive burden on the individual. The public-policy objective is not simply removal; the court must assess whether removal is necessary to achieve the relevant public-good ends.
4. Proportionality was a question of law on the statutory appeal. The court had to decide it afresh. Primary findings based on oral evidence required respect, but inferences, legal propositions and reasoning were open to scrutiny. The exercise differed from, and was more demanding than, review for Wednesbury unreasonableness.
5. Article 8 added protection for the appellant’s private and family life. The IAT had erred in treating Article 8 as superfluous after consideration of EU law. The appellant’s 36 years’ residence, arrival at age seven, weak links with Italy and substantial connections with the United Kingdom made deportation substantially akin to exile. In the circumstances, the interference was disproportionate notwithstanding the gravity of his offending and any continuing propensity.
6. The court did not need finally to determine the application of Article 8(2). It observed that justification would likely turn on present propensity and public-safety considerations rather than past conduct alone.

• Court of Appeal (Civil Division): allowed the appeal against the Immigration Appeal Tribunal’s decision and refused permission to appeal to the House of Lords.
• Immigration Appeal Tribunal: upheld the Home Secretary’s deportation decision under section 3(5) of the Immigration Act 1971.
• Home Secretary: decided in April 1997 to make a deportation order.