Gregorz Macnikowski v The Secretary of State for the Home Department

A person is entitled to the benefit of a published policy only where that policy is applicable to the person concerned. Under Abdi [1995] EWCA Civ 27, the relevant principle concerns policies intended to be acted upon.

A superseded policy which remains on a public website solely by mistake is not applicable where the executive neither intended nor adopted it after its replacement. A lack of transparency may be poor administration, but it does not make the obsolete policy operative. Deportation of an EEA national under Immigration (European Economic Area) Regulations 2006 may remain proportionate where the individual presents a genuine, present and sufficiently serious threat to a fundamental interest of society.

The appellant, a Polish national, appealed against a deportation order made after his conviction for affray and a sentence of 12 months’ imprisonment. The First-tier Tribunal dismissed his appeal. An earlier Upper Tribunal panel set that decision aside for error of law because it considered that a discretion under published Home Office guidance had not been recognised.

On remaking the decision, the Tribunal considered the appellant’s current risk, rehabilitation evidence and private-life ties. It also considered two Home Office policies which had appeared simultaneously online: Chapter 12.3 of the Enforcement Instructions and Guidance, which used a two-year sentence threshold, and the Criminal Casework Directorate EEA policy, which used a 12-month threshold for specified offences. The central issue was whether the obsolete but still published EIG policy was an applicable policy whose benefit the appellant was entitled to receive.

1. Appeal dismissed. The appellant had only the baseline protection against deportation. Periods of imprisonment could not count towards permanent residence, and he could not establish the higher level of protection based on five years’ residence.

2. Under Regulation 21(5) of the Immigration (European Economic Area) Regulations 2006, the respondent was entitled to conclude that the appellant represented a genuine, present and sufficiently serious threat affecting a fundamental interest of society. His offending had escalated in seriousness. The available risk evidence, his medium-risk assessment, and the absence of persuasive evidence that he had addressed his offending supported that conclusion.

3. The Tribunal also considered proportionality on the up-to-date evidence. It gave weight to the appellant’s past work, some social and cultural integration, limited apparent ties with Poland, and vocational work in detention. However, his later difficulties with prison and detention-centre authorities, uncertainty about his circumstances after release, and incomplete evidence of rehabilitation meant there was no clear basis to regard him as likely to behave integratively in the community. Article 8 added nothing material because his private-life ties were limited.

4. The “not in accordance with the law” ground also failed. If EIG Chapter 12.3 had been an applicable policy, its more favourable two-year starting threshold could have required the respondent to consider and exercise the discretion it contained. But it had remained online only by mistake after 1 April 2009. From that date the only policy intended to be applied was the CCD:EEA policy; it was replaced on 15 January 2013 by the CC:EEA(FNO) guidance.

5. Although the coexistence of the two published documents lacked transparency, the principle in Secretary of State for the Home Department v Abdi [1995] EWCA Civ 27 concerned a policy intended to be acted upon. The appellant therefore had no entitlement to the benefit of the obsolete EIG policy. The Tribunal remade the decision by dismissing both the EEA and “not in accordance with the law” grounds.

• Upper Tribunal (Immigration and Asylum Chamber): An earlier Upper Tribunal panel set aside the First-tier Tribunal’s decision for an error of law and directed further submissions and evidence.
• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal remade the decision and dismissed the appeal on EEA and “not in accordance with the law” grounds.
• First-tier Tribunal: Dismissed the appeal against the deportation order on 12 June 2013.