Schmelz v The Immigration Appeal Tribunal

A Community migrant worker may be expelled only where personal conduct demonstrates a serious threat to a fundamental interest of society. General deterrence cannot justify removal, and the commission of a crime ordinarily is insufficient by itself. Exceptionally, past criminal conduct may itself justify deportation where the offending is sufficiently serious. The proportionality assessment requires a balance between the public interest and the individual circumstances, but the tribunal retains a significant area of discretion. An appellate court must ask whether the assessment was within the limits of lawful judgment, rather than substitute another view merely because more than one outcome is possible.

Mr Schmelz, a German citizen with indefinite leave to remain, faced exclusion following his conviction and 12-year sentence for conspiracy to rob. An adjudicator dismissed his appeal, and the Immigration Appeal Tribunal refused leave to appeal on 29 May 2002. Sullivan J dismissed judicial review. The Court of Appeal considered whether the adjudicator and Tribunal had erred in applying Community-law restrictions on deportation and the proportionality test, particularly in light of the asserted low risk of reoffending and the claimant’s personal circumstances.

Appeal dismissed unanimously. The Immigration Appeal Tribunal was entitled to refuse leave, and Sullivan J was right to dismiss the judicial review. Neither the adjudicator nor the Tribunal had erred in law.

1. Community law required a demonstrated serious threat to a fundamental interest of society, assessed by reference to the individual’s personal conduct. Deportation could not be based on general deterrence, and a conviction alone ordinarily did not justify removal.
2. There were exceptional cases in which past criminal conduct itself justified deportation of an EC citizen. The court applied the principle recognised in Marchon v Immigration Appeal Tribunal [1993] Imm AR 384. It was open to the adjudicator to treat the aggravated conspiracy to rob, involving a grave threat to the innocent driver, as falling within that exceptional category.
3. The adjudicator had not treated the 12-year sentence as automatically decisive. He had considered matters capable of weighing against deportation, including the low risk of reoffending, alleged family connection, property ownership and employment. The proportionality assessment was not merely a Wednesbury review. It allowed the tribunal a significant area of discretion, and the balance struck was within the limits of lawful judgment.
4. As a further observation, the court stated that under sections 101(2) and (3) of the Immigration Act 2002, the proper focus of an appeal concerning refusal of leave was whether the Tribunal had made an error of law, rather than a fresh assessment of the adjudicator’s decision. The severity of deportation’s impact and the existence of more than one possible proportionality assessment did not themselves justify permission to appeal.
5. The court also directed attention to the need for properly prepared and economical bundles under the Practice Direction on citation of authorities, [2001] 1 WLR 1001.

Order: appeal dismissed. No order as to costs. Public funding assessment of the appellant’s costs.

1. Court of Appeal (Civil Division): On appeal from Sullivan J, the court dismissed the appeal. [2004] EWCA Civ 29
2. High Court, Administrative Court: Sullivan J dismissed judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal.
3. Immigration Appeal Tribunal: Refused leave to appeal against the adjudicator’s determination, notified on 29 May 2002.
4. Adjudicator: Dismissed Mr Schmelz’s appeal against the proposed exclusion from the United Kingdom.