BF (Portugal) v Secretary of State for the Home Department

Under Immigration (EEA) Regulations 2006, a tribunal must determine whether personal conduct presents a genuine, present and sufficiently serious threat to a fundamental interest of society before deciding whether deportation is proportionate. Proportionality is not a free-standing conclusion that can be reached without deciding the existence and extent of the present threat.

A tribunal may reject risk assessments, but it must give adequate reasons for doing so. Merely reciting the evidence and stating a conclusion does not meet that requirement.

The Secretary of State made a deportation order against BF, a Portuguese national with permanent residence in the United Kingdom, following convictions for battery and threatening to kill a former partner. The parties accepted that he could be removed only on serious grounds of public policy or public security.

The Asylum and Immigration Tribunal, in a determination promulgated on 7 November 2008, [AIT No. IA/04704/2008], allowed his appeal. It found the offence serious but concluded that deportation was disproportionate. The Secretary of State appealed, contending that the tribunal had failed to decide whether BF remained a genuine, present and sufficiently serious threat.

Decision

The court unanimously allowed the Secretary of State’s appeal and remitted the matter to the tribunal for redetermination.

1. The tribunal had to address the statutory inquiries in their proper sequence. It first had to identify the relevant personal conduct and decide whether it represented a genuine, present and sufficiently serious threat affecting a fundamental interest of society under regulation 21(5)(c) of the Immigration (EEA) Regulations 2006. Only then could it assess proportionality. A proportionality finding could not stand independently of findings about the existence and extent of the threat.

2. The tribunal found that the offence was serious and that there was a high propensity to reoffend. However, it made no clear finding whether the serious threat present at the time of the offence remained present at the hearing. Nor did it decide whether any such threat affected a fundamental interest of society.

3. The tribunal was entitled to consider all relevant evidence and was not bound to accept the risk assessments. But those assessments described a high or very high risk of serious harm to a former or future partner. If the tribunal rejected them, it had to explain why. Its narrative account of the evidence and its unreasoned conclusion did not disclose that analysis.

4. A continuing risk of serious harm to a new partner was capable of amounting to the statutory threat. Sullivan LJ gave the judgment, with Patten and Jacob LJJ agreeing. Jacob LJ added that reciting evidence without deciding the critical statutory question was insufficient.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 923, allowed the Secretary of State’s appeal and remitted the matter for redetermination.
• Asylum and Immigration Tribunal: In a determination promulgated on 7 November 2008, [AIT No. IA/04704/2008], allowed BF’s appeal against the deportation order.