Bulale v Secretary of State for the Home Department

An EEA national with a permanent right of residence may be removed for serious violent offending where personal conduct presents a genuine, present and sufficiently serious threat to a fundamental interest of society. Previous convictions alone cannot justify removal, but their underlying circumstances may evidence such a threat.

In the absence of detailed Community guidance, national authorities have an area of discretion to assess seriousness. They must apply Community law conscientiously, interpret public-policy derogations strictly and consider the seriousness attributed to the conduct by domestic law. The requirements of serious grounds of public policy and a sufficiently serious present threat are separate and cumulative. Removal must also be proportionate after considering the individual's circumstances and integration.

The Secretary of State decided to deport the appellant, a Netherlands citizen, under the Immigration (European Economic Area) Regulations 2006 because his repeated offending and propensity to commit serious robbery presented a public-policy risk. His appeal was dismissed by an Asylum and Immigration Tribunal panel. Senior Immigration Judge Lane upheld that determination on reconsideration.

The appellant appealed to the Court of Appeal. The principal issue was whether his propensity to commit robberies constituted serious grounds of public policy and a sufficiently serious threat for the purposes of regulation 21. The court also considered whether it could decide that previously unraised issue, whether guidance should be sought from the European Court of Justice, and whether deportation was proportionate.

1. Appeal dismissed. The first tribunal was entitled to find that the appellant presented a high risk of committing further robberies of a serious kind. It had examined the competing assessments of that risk and given detailed, cogent reasons for preferring the less favourable assessment. Its conclusion disclosed no error of law.

2. Protection of the public from sufficiently serious violent crime is a fundamental interest of society. A propensity to commit serious robbery threatens that interest. The tribunal was entitled under the Immigration (European Economic Area) Regulations 2006 to find both serious grounds of public policy and a genuine, present and sufficiently serious threat.

3. Public-policy derogations from freedom of movement must be interpreted strictly. Their scope remains subject to Community control. Nevertheless, the circumstances justifying recourse to public policy may vary between countries and over time. In the absence of detailed Community guidance, national authorities have an area of discretion. Provided they conscientiously apply Community legislation, they may consider the seriousness attributed to the relevant conduct by domestic law.

4. The requirement under article 27(2) of Directive 2004/38/EC for a genuine, present and sufficiently serious threat and the requirement under article 28(2) for serious grounds of public policy are separate and cumulative. The interpretation of one does not alter the other. A reference to the European Court of Justice was unnecessary because the Community legislature had deliberately used general standards that left an area of judgment to national authorities.

5. Although the seriousness issue had not been raised below and was not Robinson-obvious, the Court of Appeal could consider it. Once a point concerning the state's compliance with its international obligations had occurred to the court, the court could pursue it. This exceptional course gave parties no general licence to reformulate their cases on appeal.

6. The tribunal adequately considered proportionality. The appellant was a young unmarried adult without particular dependency upon his family in the United Kingdom. He spoke Dutch and had spent his childhood and school years in the Netherlands. Its conclusion that removal was proportionate was unchallengeable. Buxton LJ delivered the judgment; Smith and Waller LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed by [2008] EWCA Civ 806. The court upheld Senior Immigration Judge Lane's decision and the first tribunal's determination.
2. Asylum and Immigration Tribunal on reconsideration: Senior Immigration Judge Lane upheld the dismissal of the appellant's appeal.
3. Asylum and Immigration Tribunal: The first tribunal dismissed the appeal against the Secretary of State's deportation decision.