The Secretary of State for the Home Department v MC

In an EEA deportation case under regulation 21, rehabilitation is relevant only within the proportionality assessment after the individual has been found to pose a genuine, present and sufficiently serious threat to a fundamental interest of society. The relevant question is whether there are reasonable prospects of ceasing to offend, rather than a mere capability of rehabilitation.

Prospects must be assessed comparatively between the host and home Member States. Materially different prospects cannot be assumed without evidence. A person without permanent residence may rely on rehabilitation, but it cannot ordinarily carry substantial weight. The assessment remains holistic and gives greater weight to serious offending and a serious risk of reoffending.

The Secretary of State appealed against a First-tier Tribunal decision allowing a Portuguese national’s appeal against a deportation order made under the Immigration (European Economic Area) Regulations 2006. The First-tier Tribunal found that he posed a genuine, present and sufficiently serious threat, but held that deportation would be disproportionate because family support and supervision in the United Kingdom would better assist his rehabilitation.

The claimant had not acquired permanent residence. The central issue was the proper role and weight of rehabilitation in an EEA deportation appeal following Dumliauskas [2015] EWCA Civ 145.

1. Appeal allowed. The First-tier Tribunal materially erred in allowing the appeal under the Immigration (European Economic Area) Regulations 2006. Its decision was set aside and the claimant’s appeal against deportation was dismissed.

2. Rehabilitation is not a free-standing answer to an EEA deportation decision. It arises, where relevant, as part of the proportionality assessment under regulation 21 after the person’s conduct has been found to constitute a genuine, present and sufficiently serious threat to a fundamental interest of society.

3. The Tribunal recast the guidance in Daha Essa v Secretary of State for the Home Department [2013] UKUT 316 (IAC) in light of Secretary of State for the Home Department v Dumliauskas [2015] EWCA Civ 145. Rehabilitation need not be considered in every case. It concerns reasonable prospects of ceasing to offend, not the mere possibility that an offender is capable of rehabilitation.

4. Those prospects require a comparison between the host Member State and the Member State of origin. In the absence of evidence, a tribunal must not assume that rehabilitation prospects are materially worse in the latter. Family ties, accommodation, work, training and community membership may be relevant, but lack of access abroad to probation supervision will not generally prevent deportation.

5. A lack of permanent residence does not make rehabilitation irrelevant. It does, however, materially reduce the weight it can carry. The First-tier Tribunal had wrongly given substantial weight to rehabilitation despite the claimant’s lack of permanent residence, had treated mere capability as sufficient, and had assumed worse prospects in Portugal without evidence.

6. On re-making the decision, the claimant’s serious offending, continuing risk, lack of acceptance of responsibility, substance misuse, limited residence status and continuing links with Portugal outweighed the factors in his favour. There was no material basis for a separate Article 8 assessment capable of producing a more favourable result.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside and the deportation appeal was re-made and dismissed.
• First-tier Tribunal: Allowed the claimant’s appeal against the deportation order under the Immigration (European Economic Area) Regulations 2006 and Article 8.