Essa, R (on the application of) v Upper Tribunal (Immigration & Asylum Chamber) & Anor

When applying regulation 21 of the Immigration (European Economic Area) Regulations 2006, a decision-maker must consider whether deportation may prejudice the person’s rehabilitation in the host state and weigh that risk when assessing proportionality. This will usually require comparison with rehabilitation prospects in the receiving state. The Directive’s high thresholds and detailed criteria already balance individual free movement rights with the interests of the European Union; decision-makers need not conduct a separate assessment of whether deportation serves the EU as a whole. On judicial review, factual assessments and evaluative judgments of the First-tier Tribunal should not be interfered with absent an error of law. The application was dismissed because the Tribunal had considered rehabilitation, family life, present risk, proportionality and the applicable threshold.

The claimant, a Dutch national of Somali origin who had lived in the United Kingdom since childhood, challenged the refusal by the Upper Tribunal (Immigration and Asylum Chamber) of permission to appeal from the First-tier Tribunal’s dismissal of his appeal against deportation. Deportation had been ordered on public policy and public security grounds following a serious robbery conviction.

The principal issue was whether the First-tier Tribunal had failed to consider the claimant’s relative prospects of rehabilitation in the United Kingdom and the Netherlands when applying regulation 21 of the Immigration (European Economic Area) Regulations 2006. Other issues concerned family life, the five-year residence threshold, present risk, the weight given to the offence and reliance on Bulale v Secretary of State for the Home Department.

1. Application dismissed. The Upper Tribunal had not erred in refusing permission to appeal because the First-tier Tribunal’s determination disclosed no arguable error of law.
2. Under regulation 21, the decision-maker must comply with proportionality, assess the person’s personal conduct and present threat, apply the appropriate threshold, and take account of residence, social and cultural integration, family and economic circumstances, and links with the country of origin.
3. Following Land Baden-Württemberg v Tsakouridis and Batista v Secretary of State for the Home Department, the proportionality assessment must consider whether deportation may prejudice rehabilitation in the host state. In most cases this entails comparison with rehabilitation prospects in the receiving state.
4. The First-tier Tribunal had considered the relevant rehabilitation evidence. It rejected the claimant’s central submission that family support in the United Kingdom would materially reduce his risk of reoffending, and found that he could rebuild his life in the Netherlands through training, work and continued family contact.
5. The First-tier Tribunal was entitled to make findings on credibility, family ties, present risk and the weight of the evidence. Its evaluative conclusions were not open to challenge merely because another tribunal might have assessed the evidence differently.
6. The Directive already balances the interests of the individual member state and the European Union. It does not require a separate inquiry into whether deportation exports the risk of reoffending or is in the interests of the EU as a whole.
7. The First-tier Tribunal had directed itself on the higher threshold for a person with five years’ residence, considered present risk rather than convictions alone, and did not place impermissible reliance on Bulale. The judicial review claim was therefore dismissed.

1. First-tier Tribunal (Immigration and Asylum Chamber): dismissed the claimant’s appeal against the deportation order on 18 April 2011.
2. Upper Tribunal (Immigration and Asylum Chamber): refused permission to appeal on 29 July 2011.
3. High Court (Administrative Court): dismissed the judicial review application, holding that the Upper Tribunal had not erred in law.