Schmelz, R (on the application of) v Immigration Appellate Authority

Deportation of an EU national requires justification on grounds of public policy, public security or public health. Previous convictions alone are insufficient. The conduct must disclose a present, genuine and sufficiently serious threat affecting a fundamental interest of society.

The decision-maker must conduct a proportionality assessment. That requires consideration of the seriousness of the offence and the risk of repetition, balanced against the burden deportation would impose on the individual. A low risk of reoffending does not necessarily prevent deportation where the offence is exceptionally serious and the measure protects the public from repetition rather than deters others.

The claimant, a German national who had lived in the United Kingdom since 1979, challenged an Immigration Appeal Tribunal determination refusing leave to appeal against an adjudicator’s dismissal of his appeal against a deportation order made under section 3(5) of the Immigration Act 1971. He had been sentenced to 12 years’ imprisonment for conspiracy to rob and had been released on licence.

The challenge alleged that the adjudicator had concentrated on the seriousness of the offence, failed to consider the claimant’s low risk of reoffending and other favourable circumstances, and failed to apply the stricter EU test. The central issue was whether a proper proportionality and public-policy assessment had been carried out.

1. Application refused. The adjudicator’s determination had to be read as a whole and in context. It showed that all material matters relied upon by the claimant had been considered, including his residence, age, employment prospects, relationships, property, medical problems and the evidence of his probation officer.
2. For an EU national, deportation could not be justified merely because removal was conducive to the public good. The conduct had to constitute a present threat to public policy, and the threat had to be genuine and sufficiently serious so as to affect a fundamental interest of society. The principles in R v Bouchereau and [1978] 1 QB 732 applied.
3. The adjudicator had carried out the necessary balancing exercise. He accepted, or did not reject, the assessment that the claimant’s risk of reoffending was low, but weighed that risk against the seriousness of the offence and the limited factors favouring the claimant’s continued residence. The claimant’s employment, family and property ties in the United Kingdom were weak, and his long residence began when he was an adult and included a substantial period in prison.
4. The 12-year sentence was proper evidence of the seriousness of the offence. The adjudicator was entitled to regard the conspiracy as carefully planned, involving substantial sums, a threat of extreme violence and the claimant’s role as organiser and recruiter. The offence was capable of engaging a fundamental interest of society even though no physical violence had occurred.
5. Deportation was not ordered as a general deterrent. It was ordered to protect the public from even a small risk of repetition. That distinguished the case from the impermissible preventative or deterrent approach identified in Nazli [2000] ECR I-957. The deportation order was not disproportionate.
6. Permission to appeal was granted on the question whether a 12-year sentence could engage the fundamental interests of society. There was no order for costs other than legal aid assessment.

1. Immigration Appeal Tribunal: refused leave to appeal against the adjudicator’s determination.
2. Adjudicator: dismissed the claimant’s appeal against the Secretary of State’s deportation decision.
3. High Court (Administrative Court): refused judicial review, granted permission to appeal on a limited point, and made no order for costs other than legal aid assessment.