Secretary of State for the Home Department v Straszewski

An EEA national with a permanent right of residence may be deported on serious grounds of public policy or public security only where personal conduct represents a genuine, present and sufficiently serious threat to a fundamental interest of society. The state bears the burden of justification, and derogations from free movement must be construed strictly.

Except in the most exceptional cases, the assessment concerns the likelihood and consequences of future offending. General deterrence and public revulsion do not justify removal. The decision-maker must balance the risk of future harm against the fundamental right of free movement. A tribunal’s evaluative conclusion is not open to challenge merely because another conclusion was possible; it must fall outside the range of permissible decisions.

The Secretary of State appealed against two Upper Tribunal decisions concerning EEA nationals who had acquired permanent rights of residence and had later been convicted of criminal offences. The Upper Tribunal held in each case that deportation was not justified under regulation 21 of the Immigration (European Economic Area) Regulations 2006.

Mr Straszewski had committed robbery and unlawful wounding. The Upper Tribunal concluded that he did not present a sufficiently serious current threat. Mr Kersys had committed identity fraud, but was assessed as presenting low risks of reoffending and harm.

The central issue was whether general deterrence and public revulsion could contribute to the serious grounds of public policy or public security required for deportation, and whether the tribunals had properly assessed the respondents’ personal conduct and future risk.

1. The Secretary of State’s appeals were dismissed. An EEA national’s permanent right of residence rests on the fundamental right of free movement. The state must justify interference with that right, and public-policy derogations must be construed strictly.

2. Regulation 21 requires a removal decision to rest exclusively on the person’s own conduct. Matters of general prevention cannot justify removal. General deterrence and public revulsion therefore normally have no part in determining whether serious grounds of public policy or public security exist. The position differs fundamentally from deportation under section 32 of the UK Borders Act 2007.

3. Exceptionally, past conduct alone may constitute a present threat to public policy. That narrow possibility principally accommodates offences of such gravity that failure to remove the offender might itself undermine confidence in the state’s administration of justice. The emphasis nevertheless remains on a present threat and the fundamental nature of free movement.

4. Where public policy concerns protection against violence or theft, the decision-maker must evaluate the likelihood of further offending and its probable consequences. The risk of future harm must then be balanced against the right of free movement. The assessment may admit of more than one permissible answer. A tribunal which considers all appropriate factors can be overturned only if its conclusion is perverse or irrational.

5. The Upper Tribunal was entitled to find that Mr Straszewski did not present the requisite threat. It had carefully considered the professional risk assessments, his developing insight, prospective employment and family support. Its reasons adequately explained why his serious offences and the assessed risk of further serious harm did not justify deportation.

6. Public revulsion did not justify Mr Kersys’s deportation. His dishonest offences were far below the exceptional category, while the evidence assessed both his risk of reoffending and his risk of harm as low. His conduct therefore did not represent a genuine, present and sufficiently serious threat capable of overriding free movement. Davis LJ and Sharp LJ agreed with Moore-Bick LJ.

• Court of Appeal (Civil Division): Dismissed the Secretary of State’s appeals in both conjoined cases: [2015] EWCA Civ 1245.
• Upper Tribunal (Immigration and Asylum Chamber), Straszewski: Set aside the First-tier Tribunal’s decision because the ten-year residence threshold was not met, remade the decision under the lower protection in regulation 21(3), and held that deportation was not justified: [2014] UKAITUR DA011392012.
• First-tier Tribunal, Straszewski: Allowed the appeal on the basis that removal was not justified on imperative grounds of public policy or public security.
• Upper Tribunal (Immigration and Asylum Chamber), Kersys: Dismissed the Secretary of State’s appeal from the First-tier Tribunal: [2015] UKAITUR DA002252014.
• First-tier Tribunal, Kersys: Allowed Mr Kersys’s appeal against deportation.