Secretary of State for the Home Department v Henry Chigozie Okafor

Public-policy exclusion under the Immigration (European Economic Area) Regulations 2016 requires a genuine, present and sufficiently serious threat affecting a fundamental interest of society. Previous convictions alone are insufficient. The Bouchereau exception permits reliance on past conduct alone only in exceptional cases involving conduct capable of causing deep public revulsion. Different aspects of a person’s conduct may be aggregated, but that assessment is fact-sensitive. A tribunal’s separate discussion of criminal offending and later deception does not establish a failure to consider their cumulative effect where the judgment, read as a whole, shows that all relevant factors were considered.

The Secretary of State appealed against the Upper Tribunal’s decision dated 17 June 2022 in case EA/04590/2020, which had allowed Mr Okafor’s appeal against exclusion from the United Kingdom on public-policy grounds.

The Upper Tribunal had set aside an earlier First-tier Tribunal decision and remade the decision after preserving a finding that Mr Okafor was unlikely to reoffend. The Secretary of State argued that the Upper Tribunal had failed to assess cumulatively his historic drug conviction and subsequent deception in immigration applications. The central issue was whether that combined conduct fell within the Bouchereau exception.

Appeal dismissed unanimously. Stuart-Smith LJ gave the judgment, with which Moylan and Snowden LJJ agreed.

1. The statutory framework required the Secretary of State to establish, on the balance of probabilities, that the respondent’s personal conduct represented a genuine, present and sufficiently serious threat affecting a fundamental interest of society under regulation 27(5)(c) of the Immigration (European Economic Area) Regulations 2016. The decision also had to comply with the other principles in regulation 27(5), including exclusive reliance on personal conduct and the rule that previous convictions alone were insufficient. The four-stage approach in BF (Portugal) v SSHD required consideration of the relevant conduct, the threat, the affected fundamental interest and proportionality.
2. The Bouchereau exception formed part of English law. It could apply exceptionally where past conduct alone produced deep public revulsion, but its application depended on the facts. The court accepted that different aspects of conduct could be aggregated when assessing the statutory threat. It declined to provide further examples or guidance because the question was necessarily fact-sensitive.
3. The Upper Tribunal had applied the correct principles. Its references to conduct arising from both the conviction and the later deception, its citation of the need for an overall assessment, and its direction to take all identified factors into account showed that it had not treated the conduct as separate and mutually exclusive silos.
4. The fact that the Upper Tribunal discussed the drug offending and deception in separate paragraphs was permissible and promoted clarity. The deception was treated as adding nothing of substance to the assessment and did not tip the balance. An express formula stating that matters had been considered singly and cumulatively was unnecessary where the judgment, read as a whole, demonstrated the correct approach. No material error of law justified appellate interference. Proportionality did not arise because the required threat had not been established.

1. Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal against the Upper Tribunal’s decision.
2. Upper Tribunal, Immigration and Asylum Chamber: on 28 February 2022 set aside the First-tier Tribunal’s decision and adjourned the appeal for remaking; on 17 June 2022 allowed Mr Okafor’s appeal.
3. First-tier Tribunal: allowed Mr Okafor’s appeal in a decision sent on 27 May 2020.