Kluxen, R v

Where an offender is a foreign criminal within section 32 of the United Kingdom Borders Act 2007, a sentencing court should not recommend deportation. The Secretary of State must make the deportation decision, subject to the statutory exceptions.

Where section 32 does not apply, deportation recommendations will be rare. The Nazari and others and Bouchereau tests are substantially the same and apply irrespective of EU citizenship. A sentencing court should not consider Convention rights, effects on family members, political conditions abroad, Article 28 of Directive 2004/38, or the Immigration (European Economic Area) Regulations 2006. Those matters concern an actual deportation decision by the Secretary of State.

Three non-British offenders appealed recommendations for deportation made when they were sentenced in the Crown Court. Patricia Kluxen, a Ghanaian national, had received concurrent sentences totalling 30 months’ imprisonment for facilitating unlawful entry and possessing false identity documents. German Rostas and Superman Adam, Romanian nationals and EU citizens, had each received two years’ detention for conspiracy to steal.

The court listed the appeals together to determine whether different principles governed deportation recommendations for EU and non-EU offenders. Each appellant had received a single custodial sentence exceeding 12 months after the relevant provisions of the United Kingdom Borders Act 2007 came into force.

1. The appeals against the deportation recommendations were allowed. Each appellant was a foreign criminal under section 32 of the United Kingdom Borders Act 2007. Section 32(5) required the Secretary of State to make a deportation order unless a section 33 exception applied. A judicial recommendation therefore served no useful purpose and the statutory scheme removed any need for the sentencing court to make one. The recommendations were quashed.
2. Condition 1 in section 32 is met only where a single offence attracts imprisonment or detention of at least 12 months. Consecutive sentences which reach that length in aggregate do not suffice. The words in section 38(1)(b) referring to an aggregate sentence of “more than 12 months” must be read as meaning 12 months or more, to avoid inconsistency within the scheme.
3. Although unnecessary to decide these appeals, the court gave guidance for offenders outside section 32. A deportation recommendation should then be exceptional. The Nazari and others test, whether continued presence is detrimental to the United Kingdom, and the Bouchereau test, whether personal conduct presents a genuine, present and sufficiently serious threat to a fundamental interest of society, are substantially the same. The latter test survived Directive 2004/38 and applies to a recommendation because it is a measure for the purposes of Article 27(2).
4. A sentencing court should not determine Convention rights, effects on innocent family members, or political circumstances in the proposed destination. Nor do Article 28 of Directive 2004/38 or regulations 19 and 21 of the Immigration (European Economic Area) Regulations 2006 govern a judicial recommendation. They regulate the Secretary of State’s actual removal decision.
5. Kluxen’s renewed application for leave to appeal her custodial sentences was refused. Her offending was planned, for gain, involved false documents and concerned children unrelated to her. The total sentence of 30 months was not arguably manifestly excessive.

• Court of Appeal (Criminal Division) The court allowed all three appeals against the deportation recommendations and quashed them. It refused Kluxen’s renewed application for leave to appeal her sentences.
• Earlier Court of Appeal hearing Rostas’s appeal against his two-year sentence was dismissed. Adam’s sentence was reduced to 18 months.
• Crown Court Kluxen was sentenced at Lewes Crown Court to concurrent sentences totalling 30 months’ imprisonment and was recommended for deportation. Rostas and Adam were sentenced at Merthyr Tydfil Crown Court to two years’ detention and were each recommended for deportation.