Secretary of State for the Home Department v Dumliauskas & Ors

In an EU-citizen expulsion case, the decision-maker must consider the comparative prospects of rehabilitation in the host and receiving states when assessing proportionality under Directive 2004/38/EC. That factor is relevant even where the offender lacks a permanent right of residence. The offender’s lawful residence, integration and the statutory level of protection affect the weight given to rehabilitation, rather than its relevance.

In the absence of evidence, a tribunal should not assume that medical treatment or rehabilitative support in another Member State is materially inferior. For an offender without permanent residence, rehabilitation will not normally carry substantial weight, and the absence of host-state probationary support will not generally make expulsion disproportionate.

The Secretary of State appealed in three conjoined cases concerning the proposed expulsion of EU nationals convicted of serious offences. Each respondent had been found to present a genuine, present and sufficiently serious threat to a fundamental interest of society.

The Upper Tribunal had upheld or remade decisions allowing the respondents’ appeals. It treated their better prospects of rehabilitation in the United Kingdom, compared with Lithuania, the Netherlands or Poland, as rendering expulsion disproportionate. The cases involved drug addiction, serious mental illness and alcohol-related offending.

The central issue was whether comparative rehabilitation was irrelevant unless the offender had a permanent right of residence and, if it was relevant, what evidential weight it could bear in the proportionality assessment.

1. Appeals allowed. Sir Stanley Burnton, with whom Floyd and Jackson LJJ agreed, held that comparative prospects of rehabilitation are relevant to proportionality in every EU-citizen expulsion case. They are not confined to persons with a permanent right of residence. The court was bound by R (Daha Essa) v UTIAC [2012] EWCA Civ 1718 to that effect.

2. Rehabilitation may be closely connected with health and future offending. That was so where the risk of offending depended on mental health, drug addiction or alcohol misuse. Article 28 requires account to be taken of health, integration and links with the country of origin. Those matters may therefore make rehabilitation material to proportionality.

3. The absence of permanent residence does not exclude rehabilitation from the balance. It normally reduces its weight. The court approved the approach in Vasconcelos that future rehabilitation will not ordinarily be a weighty factor where the offender lacks both integration and a permanent right of residence. The absence of foreign probationary supervision cannot generally preclude expulsion, since the risk of reoffending is the basis on which the power arises.

4. A tribunal must decide the issue on evidence. It may be easier for the Secretary of State to obtain evidence about support in another Member State, but it is impermissible, without evidence, to assume that its medical or rehabilitative services are materially inferior to those available in the United Kingdom.

5. The Upper Tribunal’s proportionality assessments were flawed. In AD’s case it should not have assumed that Lithuania would provide no support for a recovering drug addict. In ME’s case it was inconsistent to accept that Dutch mental-health care was high quality while treating it as a speculative unknown. In LW’s case its finding of a durable solution to alcohol-related offending was irreconcilable with its finding of a continuing serious threat, and it gave excessive weight to rehabilitation in the United Kingdom.

6. The Upper Tribunal’s decisions were set aside and each case was remitted to it for a fresh hearing on the latest evidence.

1. Court of Appeal (Civil Division): Allowed the Secretary of State’s appeals, set aside the relevant Upper Tribunal decisions and remitted all three cases for fresh hearings.

2. Upper Tribunal (Immigration and Asylum Chamber): In AD’s case, upheld the First-tier Tribunal’s allowance of the appeal. In ME’s case, set aside the First-tier Tribunal’s dismissal and remade the decision by allowing the appeal. In LW’s case, set aside the First-tier Tribunal’s dismissal and later allowed the appeal.

3. First-tier Tribunal: Allowed AD’s appeal on proportionality grounds, dismissed ME’s appeal, and dismissed LW’s appeal.