Batista v Secretary of State for the Home Dept

An EEA national with a permanent right of residence may be removed only on serious grounds of public policy or public security. A tribunal’s failure expressly to repeat that statutory formulation will not invalidate its decision if, read as a whole, it has applied the requisite stringent standard.

Under article 8 of the Human Rights Convention, proportionality is not decided by asking only whether there are insurmountable obstacles to the family relocating. The tribunal must determine whether family members would in fact accompany the deportee, whether it is reasonable to expect them to do so, and the overall consequences if deportation causes family separation. Serious offending and public protection may nevertheless outweigh family life considerations, depending on the gravity and circumstances of the offending.

The appellant, a Portuguese national, appealed against the Asylum and Immigration Tribunal’s dismissal of his appeal against a deportation order. He had substantial criminal convictions, including serious burglary and violence, but had also undertaken therapy in prison and relied on his relationship with his long-term partner and their child.

The tribunal found a very high risk of reoffending and upheld deportation. It treated him as having a permanent right of residence, but did not expressly apply the requirement of serious grounds of public policy or public security. It also concluded that there were no insurmountable obstacles to his partner and child joining him in Portugal.

The appeal raised the levels of protection under the Citizens’ Directive 2004/58/EC and the Immigration (EEA) Regulations 2006, and whether the tribunal had lawfully assessed proportionality under article 8.

1. Appeal allowed unanimously and remitted. Lord Justice Carnwath, with whom Lady Justice Black and Lord Justice Maurice Kay agreed, allowed the appeal on the article 8 ground and remitted the case to the Upper Tribunal.

2. The third ground failed. Time spent in prison did not count towards the acquisition of the highest level of protection based on ten years’ continuous residence, even where the person had a permanent right of residence. The Court also proceeded on the basis that the appellant had acquired permanent residence. Although the tribunal’s reasoning was imperfect, its assessment of the appellant’s serious offending, risk of renewed violence and danger to the public was capable of satisfying the more stringent requirement of serious grounds under regulation 21(3) of the Immigration (EEA) Regulations 2006.

3. The tribunal’s article 8 reasoning was legally flawed. Its use of an insurmountable obstacles approach did not answer the required proportionality question. Following EB(Kosovo) v Secretary of State [2008] UKHL 41 and VW (Uganda) v Secretary of State [2009] EWCA Civ 5, it had to make a careful, fact-sensitive balance. It had to ask whether the partner and child would in fact move to Portugal, whether it was reasonable to expect them to do so, and, if not, what the overall consequences of enforced family separation would be.

4. The evidence was that the appellant’s partner was unwilling to leave the United Kingdom because of her established life, work, accommodation and close family connections. The tribunal did not reject that evidence or find her stance unreasonable. It was therefore wrong to assume that family life could be expected to continue in Portugal without first addressing the likely separation and its consequences for the mother and child.

5. Public protection remained a weighty countervailing consideration. In a deportation case, serious criminal offending may justify a result that would be disproportionate in an ordinary immigration-control removal case. The tribunal could also consider whether the appellant’s prospects of support and rehabilitation in Portugal, as compared with the fragile relationship and support available in the United Kingdom, had material bearing on proportionality. Those matters required reconsideration under the correct legal approach.

• Court of Appeal (Civil Division): Allowed the appeal and remitted the proportionality issue to the Upper Tribunal: [2010] EWCA Civ 896 .

• Asylum and Immigration Tribunal: On 21 January 2009, dismissed the appellant’s appeal against the deportation order (case no. IA/17955/2008).