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

When assessing proportionality under regulation 21 of the Immigration (European Economic Area) Regulations 2006, the decision-maker must consider whether removal may prejudice the person’s rehabilitation in the host state. The risk must be weighed against the prospects of rehabilitation in the receiving state where relevant.

The Directive does not require a separate reassessment of the competing interests of the European Union and individual Member States in every deportation case. The statutory thresholds and proportionality requirements already reflect that balance. An appellate or review court should be slow to interfere with factual and evaluative findings made by a specialist tribunal unless an error of law is demonstrated.

The claimant, a Dutch national of Somali origin, challenged the Upper Tribunal’s refusal of permission to appeal against a First-tier Tribunal decision dismissing his appeal against deportation from the United Kingdom on public policy and public security grounds.

He argued that the First-tier Tribunal had failed to consider the comparative prospects of rehabilitation in the United Kingdom and the Netherlands, had misunderstood the applicable enhanced protection for long-term residents, and had mishandled family life, risk and proportionality. The central issues were whether those matters disclosed an arguable error of law and whether the Upper Tribunal had therefore erred in refusing permission.

1. Application dismissed. The First-tier Tribunal had not made an arguable error of law, and the Upper Tribunal was entitled to refuse permission to appeal.
2. Under regulation 21 of the Immigration (European Economic Area) Regulations 2006, proportionality requires consideration of whether deportation may prejudice rehabilitation from criminal offending in the host state. In an appropriate case this entails comparison with rehabilitation prospects in the receiving state. This followed the approach endorsed by the European Court of Justice in Land Baden-Wurttemberg v Tsakouridis [2011] 2 CMLR 11 and illustrated in Batista v Secretary of State for the Home Department [2010] EWCA Civ 896.
3. The First-tier Tribunal had considered the rehabilitation evidence, including the claimant’s proposed support in the United Kingdom, the absence of equivalent support in the Netherlands, his family relationships, language, cultural familiarity, training prospects and the risk of reoffending. It was entitled to reject the evidence that family support would prevent further offending and to conclude that rehabilitation remained possible in the Netherlands.
4. The claimant had acquired a permanent right of residence and was therefore protected by the serious-grounds threshold in regulation 21(3), rather than the imperative-grounds threshold applicable after ten years’ residence under regulation 21(4). The Tribunal directed itself correctly, assessed present risk rather than relying solely on past convictions, and was entitled to find the threshold satisfied.
5. The Directive had already balanced free movement, individual protection and Member State interests. It did not require the decision-maker separately to assess whether removal was in the interests of the European Union as a whole. The First-tier Tribunal’s treatment of family life, the seriousness of the offence, risk and proportionality disclosed no legal error. Its reliance on Bulale v Secretary of State for the Home Department [2008] EWCA 806 did not displace its independent assessment.

1. Upper Tribunal (Immigration and Asylum Chamber): permission to appeal from the First-tier Tribunal was refused on 29 July 2011.
2. High Court (Queen’s Bench Division): permission for judicial review was granted on renewal, but the substantive application was dismissed.