Essa, R (On the Application Of) v Upper Tribunal (Immigration & Asylum Chamber) & Anor

When deciding whether to deport a Union citizen, proportionality under EU law includes the risk that removal will compromise the citizen’s social rehabilitation in the Member State where genuine integration has occurred. This reflects the interests of the European Union generally, as well as those of the individual and the host state.

The decision-maker will ordinarily need to compare the prospects of rehabilitation in the host and receiving states. Consideration of isolated facts bearing on rehabilitation does not suffice unless the required EU dimension has genuinely informed the assessment. This exercise is distinct from proportionality under article 8 of the Convention, although relevant considerations may overlap.

The appellant, a Dutch national born in Somalia, had lived in the United Kingdom from childhood. Following his conviction for robbery and sentence to five years’ detention, the Secretary of State decided to deport him under section 3(5)(a) of the Immigration Act 1971.

The First-tier Tribunal dismissed his appeal. Both the First-tier Tribunal and Upper Tribunal refused permission to appeal. Lang J subsequently dismissed his application for judicial review: [2012] EWHC 1533 (QB).

The central issue was whether the First-tier Tribunal’s proportionality assessment under the Immigration (European Economic Area) Regulations 2006 had addressed the EU interest in the appellant’s social rehabilitation and compared his rehabilitation prospects in the United Kingdom and the Netherlands.

1. Appeal allowed. The First-tier Tribunal had not performed the proportionality assessment required by EU law. Its omission amounted to an arguable error of law, and the case was remitted to the Upper Tribunal so that it could grant permission to appeal to itself.

2. The court agreed with Lang J’s interpretation of Land Baden-Würtemberg v Tsakouridis [2011] 2 CMLR 11. When the proposed deportee is a Union citizen, the proportionality exercise must take account of the risk that expulsion will compromise rehabilitation in the Member State where the citizen has become genuinely integrated. Rehabilitation serves not only the individual’s interests but also the interests of the European Union generally. In most cases, this requires comparison of the prospects of rehabilitation in the host and receiving states.

3. The First-tier Tribunal recognised that regulation 21 of the Immigration (European Economic Area) Regulations 2006 imposed requirements distinct from article 8 of the Convention. It identified the factors in regulation 21(6) and the requirement for serious grounds of public policy or public security. When addressing proportionality, however, it conflated the two regimes and conducted a conventional article 8 assessment without consciously addressing comparative rehabilitation or the wider EU interest.

4. It was insufficient that the tribunal had incidentally considered the appellant’s ability to rebuild his life in the Netherlands and the uncertain value of guidance from siblings in the United Kingdom. Even on a benevolent reading, those findings did not establish that the tribunal had undertaken the exercise required by Tsakouridis.

5. Obiter, Tsakouridis did not adopt the Advocate General’s suggestion that a primary decision-maker must state precisely how expulsion would avoid prejudicing rehabilitation. That formulation was overprescriptive. The usual comparative exercise identified by Lang J could be undertaken without that straitjacket.

1. Court of Appeal (Civil Division): Allowed the appeal from Lang J’s decision and remitted the case to the Upper Tribunal so that it could grant permission to appeal to itself: [2012] EWCA Civ 1718.

2. High Court, Administrative Court: Lang J dismissed the substantive application for judicial review of the Upper Tribunal’s refusal of permission to appeal: [2012] EWHC 1533 (QB).

3. Upper Tribunal: Refused permission to appeal from the First-tier Tribunal.

4. First-tier Tribunal: Dismissed the appeal against deportation and subsequently refused permission to appeal.