The Secretary of State for the Home Department v Danilo Restivo

A deportation decision concerning an EEA-national prisoner is distinct from any later decision to transfer the prisoner to another Member State under Council Framework Decision 2008/909/JHA. A deportation order is a necessary precondition of a transfer without the prisoner’s consent. An appeal against the deportation decision does not determine legal impediments, including prison-condition objections, which may arise only if a transfer decision is later made.

For the purposes of the Immigration (European Economic Area) Regulations 2006, a genuine, present and sufficiently serious threat is not negated merely because imprisonment presently manages the opportunity to reoffend. The Tribunal must assess the threat on the available evidence.

The Secretary of State appealed against a First-tier Tribunal decision allowing Mr Restivo’s appeal against a decision to make a deportation order. Mr Restivo, an Italian national serving a life sentence in the United Kingdom for murder, had a permanent right of residence.

The First-tier Tribunal held that the deportation decision was premature because transfer arrangements with Italy had not been secured and an Italian criminal appeal remained unresolved. It also declined to assess the threat he posed while imprisoned, and allowed the appeal under articles 3 and 8 of the European Convention on Human Rights on the basis of prospective Italian prison conditions.

The Upper Tribunal considered whether those matters were relevant to the lawfulness of the decision to make the deportation order.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal’s decision was set aside for material errors of law. The appeal against the deportation decision was retained by the Upper Tribunal for a resumed hearing and remaking.

2. A decision to make a deportation order is not a decision to transfer a serving prisoner. Under Council Framework Decision 2008/909/JHA, the deportation order is a necessary precondition to a transfer without consent under article 6(2)(b). The First-tier Tribunal therefore erred by treating the absence of an agreed transfer arrangement as making the deportation decision premature. The later transfer decision would be for the Secretary of State for Justice, not the Secretary of State for the Home Department: [14]–[17], [33].

3. The unresolved Italian appeal did not prevent a deportation decision founded on the respondent’s United Kingdom conviction. That conviction stood regardless of the outcome of proceedings concerning a different Italian offence. The Tribunal treated David Oakes and Others v R [2012] EWCA Crim 2435 as confirming that position: [18]–[20].

4. The First-tier Tribunal had to assess, on the evidence before it, whether the respondent’s personal conduct represented the threat required by regulation 21(5)(c) of the Immigration (European Economic Area) Regulations 2006. It erred by declining to do so. The management of risk during imprisonment is distinct from the existence of the threat; reduced opportunities to offend while detained do not themselves eliminate that threat: [21]–[24], [34].

5. Article 3 prison-condition objections were premature. A deportation order did not itself send the respondent to an Italian prison. Any transfer would require a later decision and could then be challenged. The First-tier Tribunal consequently erred in allowing the appeal under article 3, and its article 8 conclusion founded on the same supposed article 3 risk also failed: [25]–[31].

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside for material errors of law, with a resumed hearing directed to remake the appeal.

• First-tier Tribunal: Allowed Mr Restivo’s appeal against the decision to make a deportation order, following a hearing on 23 April 2014.

• Permission proceedings: Permission was ultimately granted following a successful Cart challenge after an Upper Tribunal judge had refused permission.