Machado v Secretary of State for the Home Deptment

Removal of a non-national spouse of an EEA national on public policy grounds requires more than past convictions or general immigration concerns. The person’s conduct must demonstrate a real and sufficiently serious present threat to a fundamental interest of society, and removal must be proportionate in all the circumstances.

Lawful marriage and lawful acquisition of EEA nationality cannot be discounted because they appear strategically obtained, although related conduct may bear on the assessment of present threat. Article 8 should be considered within the overall proportionality assessment. An appellate tribunal must address these questions directly and must not confine itself to whether the decision fell within a range of reasonable responses.

The appellant, an Angolan national, had entered the United Kingdom unlawfully, failed in an asylum claim, and later received custodial sentences for fraud, driving while disqualified and obstructing the police. He married a British national while serving his sentence. His wife subsequently acquired Irish citizenship, giving rise to his claimed status as the spouse of an EEA national.

The Secretary of State made a removal decision under the Immigration (European Economic Area) Regulations 2000. An adjudicator rejected the appeal, and the Immigration Appeal Tribunal upheld that decision. The appeal concerned whether the Tribunal had properly assessed present threat, public policy, proportionality and the appellant’s Article 8 rights.

1. Appeal allowed. The Immigration Appeal Tribunal’s decision was legally flawed and the appeal was remitted to a differently constituted Tribunal. The case was not remitted to the adjudicator. The respondent was ordered to pay the appellant’s costs of the appeal.
2. Under regulations 21(3) and 23 of the Immigration (European Economic Area) Regulations 2000, removal on public policy grounds must be based exclusively on personal conduct. Previous convictions alone are insufficient. The conduct must establish a real and sufficiently serious present threat to a fundamental interest of society, and removal must be proportionate in all the circumstances: [2005] 1 CMLR 18, §79; [2000] ICR I-957, §§57–58.
3. The Tribunal failed to answer the critical questions of present threat and proportionality. It concentrated on past conduct and immigration history, assimilated public policy to immigration policy, and did not assemble the evidence into an assessment of the appellant’s current threat. Past immigration history could be considered, but only with care in light of elapsed time and changed circumstances.
4. The lawful marriage and lawful acquisition of Irish citizenship could not be treated as diluting the protection conferred by the Regulations merely because they appeared motivated by an ulterior purpose. Abusive or manipulative conduct had to be distinguished from the legitimate exercise of legal rights. Such conduct might nevertheless be relevant to the assessment of present threat.
5. Article 8 had to be considered as part of the overall proportionality assessment, rather than as a separate and sequential issue. Proportionality required a structured assessment of the legitimate objective, the present threat, the relationship between removal and that objective, and whether terminating family life was excessive in view of the Convention and EEA rights. The Tribunal’s range-of-reasonable-responses approach was too restrictive.
6. The Court of Appeal’s jurisdiction was confined to errors of law. Subsequent evidence could not determine whether the Tribunal had erred, although fresh developments could be raised in a request to the Secretary of State to review the decision. The Secretary of State could rely on explanatory material supplied after the removal notice had been challenged, although providing materially deficient reasons in the original notice was thoroughly bad practice.

1. Court of Appeal (Civil Division): Allowed the appeal, set aside the Immigration Appeal Tribunal’s decision and remitted the case to a differently constituted Tribunal.
2. Immigration Appeal Tribunal: Upheld the adjudicator’s rejection of the appeal against the removal decision.
3. Adjudicator: Rejected the appeal against the Secretary of State’s removal decision.