Secretary of State for the Home Department v William George

For an EEA national with a permanent right of residence and ten years’ continuous residence, removal under the Immigration (European Economic Area) Regulations 2016 requires imperative grounds of public security. That is a narrower and substantially higher threshold than serious grounds of public policy and public security. It requires a sufficiently compelling actual risk to public security; the seriousness of past offending, public revulsion or public confidence in removal cannot by themselves satisfy it. The principle in R v Bouchereau that past conduct may exceptionally establish a present threat to public policy does not govern this higher test. An appellate tribunal need not consider a point expressly abandoned below. The Court of Appeal may nevertheless hear an unargued point of public importance in its discretion.

Mr George, a Belgian citizen who had lived in the United Kingdom since childhood, was convicted of manslaughter arising from a gang killing and sentenced to 12 years’ imprisonment. The Secretary of State decided to deport him on imperative grounds of public security under the Immigration (European Economic Area) Regulations 2016.

The First-tier Tribunal allowed his appeal. The Upper Tribunal found an error of law, remade the decision and dismissed the Secretary of State’s appeal. It found no genuine, present and sufficiently serious threat of future gang or other violence. The Secretary of State appealed, arguing that the Upper Tribunal should have considered the principle in R v Bouchereau, although the point had been expressly abandoned at the Upper Tribunal hearing. The central issues were whether the point should be entertained and whether its omission constituted an error of law.

1. Permission to argue the point. The grant of permission to appeal did not prevent the Court of Appeal from refusing to entertain the point after oral argument. The court nevertheless exercised its discretion to decide it because it was an important point of public law. The special principle in R v Secretary of State for the Home Department ex p Robinson [1997] EWCA Civ 3090 was limited to obvious and strongly arguable points of refugee law favourable to asylum seekers. It did not apply to this case. The court also warned that the Secretary of State’s procedural failures should not be treated as a precedent, referring to R (SWP) v Secretary of State for the Home Department [2023] EWCA Civ 439.
2. Applicable statutory threshold. Regulation 27(4) of the Immigration (European Economic Area) Regulations 2016 provides the highest level of protection for an EEA national who has lived in the United Kingdom continuously for at least ten years. The criterion of imperative grounds of public security is both narrower and more stringent than serious grounds of public policy and public security. It requires an actual and sufficiently compelling risk to public security. The court followed the guidance in LG (Italy) v Secretary of State for the Home Department [2008] EWCA Civ 190 and considered the guidance in Land Baden-Wűrttemburg v Tsakouridis [2011] 2 CMLR 261.
3. Bouchereau distinguished. R v Bouchereau [1978] 1 QB 732 concerned an earlier directive and the distinct concept of public policy. Its observation that past conduct might alone constitute a present public-policy threat therefore did not govern the imperative public-security test. Robinson (Jamaica) v Secretary of State for the Home Department [2018] EWCA Civ 85 did not assist the Secretary of State because it concerned a lower level of protection. Schedule 1 paragraph 7(f) identifies a consideration but cannot replace or qualify the substantive threshold in regulation 27(4).
4. Application and outcome. The Upper Tribunal applied the correct legal test and made an unchallenged finding that Mr George posed no genuine, present and sufficiently serious threat of future violence. The seriousness of the offence could not, without the required public-security risk, justify deportation. The appeal was dismissed. Lady Justice Laing gave an additional reason concerning the effect of express abandonment of a point; Lady Justice Asplin and Lord Justice Underhill expressed reservations about that additional reasoning, which did not affect the result.

1. Court of Appeal (Civil Division) dismissed the Secretary of State’s appeal from determination 3.
2. Upper Tribunal (Immigration and Asylum Chamber) held in determination 2 that the First-tier Tribunal had erred in law, remade the decision and dismissed the Secretary of State’s appeal in determination 3.
3. First-tier Tribunal (Immigration and Asylum Chamber) allowed Mr George’s appeal in determination 1.