A B C v Secretary of State for the Home Department [2013] EWHC 1272 (Admin) (22 May 2013)

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England and Wales High Court (Administrative Court) Decisions

You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A B C v Secretary of State for the Home Department [2013] EWHC 1272 (Admin) (22 May 2013)
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Cite as: [2013] EWHC 1272 (Admin)

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		Neutral Citation Number: [2013] EWHC 1272 (Admin)
		Case No: CO/11482/2011

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

22/05/2013

B e f o r e :

HIS HONOUR JUDGE ANTHONY THORNTON QC
____________________

Between:

	A B C	Claimant
	- and -
	Secretary of State for the Home Department	Defendant

____________________

Ms Lesley Longhurst-Woods (instructed under the Bar Council's Public Access rules) for the Claimant
Ryan Kohli (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 18 April 2013
____________________

HTML VERSION OF JUDGMENT
____________________

His Honour Judge Anthony Thornton QC :

Introduction

This judgment provides my reasons for granting the claimants permission to apply for judicial review of a decision of the Upper Tribunal refusing the claimants permission to appeal a determination of the First tier Tribunal ("FtT") at an oral renewed hearing that took place on 18 April 2013.

Anonymity. No application was made on behalf of the claimants for an anonymity order. This is no reflection on the claimants' counsel who was only instructed under the Bar Council's Public Access rules on the evening of the day before the oral hearing. However, the case involves a detailed consideration of sensitive details of the family and private lives of the second and third claimants, both of whom are still children, and a third non-party child who is one of the first claimant's grandchildren. Publication of their names therefore engages Article 8 of the European Convention on Human Rights ("ECHR"). This is particularly so since the unusual features of this case mean that this judgment may receive greater publicity than most other Administrative Court permission reconsideration judgments.

The applicable current practice in relation to anonymity is set out in the judgment of Lord Rodger in Re Guardian News and Media Ltd^[1]. I have therefore considered whether there is a public interest in handing down a judgment which identifies the second and third claimants and the non-party child that is referred to in the judgment and I have concluded that publication is not in the public interest. It follows that these three children are entitled to anonymity. Since the publication of the first claimant's name and the names of her three other adult children would inevitably lead to the identification of the three children involved, I have also concluded that these four adults should also be anonymised. I am therefore making an order pursuant to CPR 39.2(4) that the names of the three claimants, the non-party child and the other three adult children of the first claimant referred to in the judgment are not to be disclosed and are to be anonymised.

A. The first claimant ("A") is the mother of the second and third claimants ("B" and "C" respectively). A was born on 21 August 1964 in Ghana and has been a German national for many years. She has 9 siblings all of whom continue to have Ghanaian nationality and still live in Ghana. Her father died when she was young and her mother and siblings remain in extreme poverty. She left school when she was 8 and has since had no formal education. She trained and worked as a seamstress in Ghana. Her first language is Twe and it would appear that, despite living in Germany for about 14 years and in England since about 2003, she can speak very little German or, until recently, much English and she and her three children living in England appear to be living in circumstances of significant poverty and hardship ^[2].

A emigrated from Ghana to Germany in about 1990 when she was about 26, apparently to avoid the significant unwanted family responsibilities that her mother wished to place upon her following her father's untimely death. She was a Ghanaian national until she emigrated to Germany and subsequently acquired German citizenship. On acquiring German citizenship, she would have lost or would have had to have given up her Ghanaian nationality since dual nationality it is not permitted under German law ^[3]. The defendant clearly accepts that A is a German national since the deportation order was made against her, B and C under the Immigration (European Economic Area) Regulations 2006 ("EEA Regulations)^[4] which are only applicable to citizens of EEA states. By virtue of her German nationality, she is also to be regarded, under directly applicable EU law, as an "EU citizen".

B and C. A married, or married for the second time, a German national, after her arrival in Germany. This man is the father of the second and third claimants namely B, a girl now aged 16 who was born on 20 June 1996 and C, a boy now aged 15 who was born on 24 July 1997. The evidence does not disclose when and in what circumstances A became a German national but her marriage to B and C's father ended in divorce in 2002 and A, B and C with B and C's half-brother ("D"), who was born on 15 March 1992 and who is now 21, have had no contact with him since the breakdown of the marriage and do not know anything of his whereabouts. He does not support B, C or D financially. A contends that she came to England to reside here in 2003, bringing B, C and D with her to reside here as her dependents in a single family unit. She contends that since 2003, she has resided in England exercising her residence rights as a German national and that B, C and D have, since their arrival in England, exercised similar rights as both German nationals and as being the children of a German national with a right to reside here.

D. Whilst living in Ghana, A had two children, both girls, when she was aged 18 and 21 ("E" and "F"). D, her third child, was born on 15 March 1992. These three children have the same father and she took E and F to Germany with her and D was born in Germany. The only details about the father of D, E and F that is to be found in the documents filed with the court are that he died after A and her two daughter's arrival in Germany and D's birth in Germany. D, who is therefore the elder half-brother of B and C, has always lived with A. During the subsistence of her marriage (or second marriage if she had been married to D's father), he also lived with his step-father until A's separation from his step-father. D continued to live with A after her separation and he came to England with A, B and C. Since their arrival in England, A and her three German-born children have lived as a family unit. D became an adult on 15 March 2010 and he continues to reside in England as part of a family group of four and is currently undertaking, and is about to complete, a first-degree course at an English university. He intends to continue to reside in England. He was not a party to the relevant decisions under challenge and is not therefore a claimant. However, any decision made by the defendant or the FtT that has a direct effect on D's family life must take account of his family life.

E and F. The claimant also has two further older daughters, ("E") and ("F") respectively, who are D's elder sisters. Both were born in Ghana, and in June 2011, E was 29 and F was 26. It would seem that they have lived in Germany for many years having moved there from Ghana with A when they were young. D's evidence at his mother's appeal hearing was that A's eldest child E is married with three children and that she and her family are living in Hamburg. D also stated in evidence that A's second child F is also living separately in Hamburg with her partner and their young son. It was not clear from the evidence that either of these daughters was a German national but the obvious inference is that both they and their children are and that both have lived in Germany since their early childhood.

G. It came to UKBA's attention on about 23 May 2012 when A returned to England from a family visit to Germany that A had claimed that one of her grandchildren ("G"), now aged 8, had been living with her since 2006. G appears to be the youngest of E's three children and A claimed that this arrangement had come about because of what she referred to as E's mental health problems.

An UKBA officer made a home visit to A's family home on 14 August 2012 in order to ascertain who was living at A's address and more about G. The officer ascertained that A, B, C and D were living there but saw no evidence that G was living there. The officer found that A was extremely evasive about G. A claimed that G was on holiday in Ghana at that time staying with A's mother's sister, being the child's great-great aunt. She also claimed that G was not registered with any school in England because she was being educated by a home tutor but that an application had been made for her to be accepted at an appropriate school for the forthcoming term. She gave seemingly unlikely explanations for the apparent absence of any of G's possessions, claimed that the relevant further information was with her solicitor and refused to answer other relevant questions.

The officer's subsequent enquiries established that A had been claiming child benefit for G until all her benefits had been stopped at some unspecified time as a result of the relevant agency opening an International Agency file on A. The officer notified Redbridge Council's Social Services department of the on-going concerns as to whether or not G was living with A and her obvious lack of education if she was. Redbridge was the social services authority with jurisdiction over children in the area where A was residing. A Social Services' home visit was made to A's home on 12 October 2012 and Redbridge then reported to the defendant that the visit had discovered that A and her children did not appear to be living at her current address that had previously been visited by the UKBA officer or at the previously notified address ^[5]. Moreover, A and those acting on her behalf had made no reference to G during the FtT hearing or in the judicial review claim or amended claim.

Conclusion – A's family. A therefore appears to have five children and, through the eldest of these, three grandchildren and, through her second child, a further grandchild. All ten are German nationals. She is without a partner and is residing with B, C and D and possibly also with G in conditions of significant poverty in England whilst speaking only poor English. A also has an elderly widowed mother living in Ghana and all of A's 9 siblings are also residing there.

The decisions under challenge. There are five critical decisions that are relevant:

(1) The defendant's decision to make a deportation order against A dated 22 December 2010;

(2) The Upper Tribunal's decision dated 12 October 2011 to refuse A's application for permission to appeal the determination of the FtT dated 4 July 2011;

(3) The defendant's decision to make deportation orders against A, B and C dated 31 October 2011;

(4) The defendant's decision dated 7 February 2012 to:

(i) refuse A's application dated 3 November 2011 to revoke the deportation order made against her dated 31 October 2011;

(ii) certify under section 26(5) of the EEA Regulations 2006 ("the EEA Regulations") that A's representations in support of her decision to revoke had already been considered by the UKBA and the FtT so that A had no right of appeal against the refusal decision; and

(iii) decide that any formal request made by A to revoke the deportation order on the grounds that there had been a material change of circumstances since the decision of the FtT could only be made after she had returned to Germany; and

(5) The defendant's decision dated 16 January 2013 and the decision to detain her pending her removal.

A, B and C are challenging, or appear to be challenging, in this judicial review the decision of the Upper Tribunal dated 12 October 2011 to refuse A permission to appeal and the decisions of the defendant dated 31 October 2011 to serve deportation orders on A, B and C, 7 February 2012 to refuse to revoke the deportation order against A and 16 January 2013 to serve removal directions on A. There is also a potential challenge by A to her continuing detention.

In the decision dated 7 February 2012, the defendant also decided that the deportation orders dated 31 October 2011 made against B and C were revoked and that neither of them were any longer subject to deportation. B and C maintain their judicial review against all three of the decisions being challenged by A on the grounds:

(1) that the deportation orders dated 22 December 2010 and 31 October 2011 were not made in accordance with the EEA Regulations; and

(2) on human rights grounds.

This judicial review will also need consider these further decisions of the defendant:

(1) The decision dated 23 May 2010 refusing A leave to enter under EC law.

(2) The decision dated 13 January 2011 prohibiting A from working in the UK.

(3) The restriction order dated 8 February 2012.

(4) The decision dated 7 January 2013 granting A temporary admission and the subsequent decision dated 11 January 2013 refusing her admission under EU law.

(5) The removal directions dated 11 January 2013 directing A's removal to Germany.

(6) The decision dated 11 January 2013 to detain A pending her removal.

(7) A's continuing immigration detention.

The procedural history. This renewed application is made following a lengthy procedural history of the claim for judicial review. This started when the claim form was filed on 28 November 2011 seeking a judicial review of the defendant's decisions dated 22 December 2010 and 31 October 2011 and also, as A contends but which the defendant disputes, a review of the decision of the Upper Tribunal dated 12 October 2011.

On receipt of the pre-action protocol and claim form, the defendant agreed with the claimants' solicitors to reconsider the deportation orders decisions in return for A, B and C agreeing to withdraw the judicial review claim. This mutual agreement was embodied in a consent order dated 27 January 2012. There is a dispute as to whether that review was a review of the deportation orders pursuant to an agreement to withdraw them and reconsider whether they should be reissued or a decision as to whether or not to revoke those deportation orders.

In a decision dated 7 February 2012, the defendant notified A that the deportation order dated would not be revoked against her but those against B and C would be revoked. A contends that that was not a formal decision not to revoke the deportation orders, which can only be appealed from Germany once A has been deported, but a decision to deport her which does carry a right of in-country appeal.

A, on the advice of her solicitor, considered that this decision was legally flawed. In the resulting exchanges between solicitors, it was agreed by the parties in an order dated 13 February 2012 but only sealed on 30 October 2012 that the order giving effect to the agreement that the claim be withdrawn should itself be withdrawn, that the judicial review issued on 28 November 2011 be allowed to proceed on the basis of the amended grounds dated 24 February 2012 and that A should have permission to serve an amended grounds of claim and the defendant an amended grounds of defence. These documents were served on 24 February 2012 and 7 March 2012 respectively. The amended grounds renewed A, B and C's challenges to the defendant's decisions dated 22 December 2010 and 31 October 2011 and the UT's decision of 12 October 2011 and intimated a fresh challenge in relation to the defendant's decision of 7 February 2012 and to the service of any removal directions.

On 4 December 2012, A's solicitors informed the UKBA that they were proceeding with A's judicial review as allowed for by the order sealed on 30 October 2012. On 18 December 2012, UKBA sent A her passport with a covering letter which informed her that this was being sent to her to enable her to make a planned trip to Germany with B and C on 23 December 2013 and that if she left the UK she would not be allowed re-entry into the UK although B and C would be allowed re-entry given that there was an outstanding deportation order against her but none against B and C. A made the planned trip with B and C and returned to the UK with them on 7 January 2013 and was given temporary admission. On 8 January 2013, A, B and C were served with removal directions to Bremen to take effect on 11 January 2013. They did not comply with these directions because, as was alleged on A's behalf subsequently, she had medical reasons not to attend.

On 14 January 2013, A, B and C's solicitors sent the UKBA a letter written on behalf of A, B and C. On behalf of A, the letter amounted to a pre-action protocol letter which intimated:

(1) A renewed challenge to the defendant's decision dated 7 February 2012 not to revoke the deportation orders dated 22 December 2010 and 31 October 2011.

(2) A challenge to the decision dated 8 January 2013 to grant A temporary admission as being a decision in breach of EU law and article 8;

(3) A challenge to the decision dated 11 January 2013 to serve removal directions on A which, in context, amounted to a challenge to the defendant's alleged failure to enforce the deportation orders dated 22 December 2010 and 31 October 2011 against A without first considering whether there had been a material change in her circumstances since the service of the deportation order dated 22 December 2010.

On behalf of B and C, the letter intimated a root and branch challenge to the legality of serving B and C with a decision that granted them temporary admission and a subsequent decision to serve them with removal directions.

The defendant issued fresh removal directions dated 16 January 2013 to take effect on 21 January 2013. On 18 January 2013, Mr Dingemans QC sitting as a Deputy High Court Judge refused A permission to apply for judicial review. On 21 January 2013, A applied to the Immediates judge sitting in the Administrative Court for an interim injunction to restrain A's removal pursuant to the removal directions dated 16 January 2013 pending the conclusion of her judicial review. This application was refused by Leggatt J on the same day. Also on 21 January 2013, A's solicitors filed a notice renewing her application for permission to apply for judicial review. The defendant then suspended the removal directions. A's solicitors ceased to act for her due to funding difficulties and, on the night before the renewed application hearing, whilst A was in immigration detention, her friends contributed to a fund that enabled them to instruct counsel by Public Access to represent her at the renewal hearing on 18 April 2013.

The brief grounds on which the decisions of both Mr Dingemans QC and Leggatt J were taken on 18 and 21 January 2013 were that the European law and article 8 issues arising in A's challenges were considered carefully and dismissed by the FtT's determination in July 2011and there was nothing to suggest that that that determination was unlawful.

Summary of the grounds of challenge. In the light of that convoluted procedural history, A seeks to challenge a series of decisions on essentially the same grounds. These decisions were the deportation decisions dated 23 December 2010 and 31 October 2011, the FtT decision dated 4 July 2011 and the UT permission refusal decision dated 12 October 2011, the decision refusing to revoke the deportation order dated 7 February 2012 and the decisions to serve removal directions dated 16 January 2012 and to detain and to continue to detain A pending her removal.

The grounds still relied on and which have featured in this renewed application for permission are that:

(1) Each decision was based on A having first entered the UK in August 2004 when the available evidence clearly demonstrated that she had entered the UK with B, C and D in June 2003;

(2) Each decision was taken on the erroneous basis that, having entered the UK with B, C and D in June 2003 in order to establish herself and her three children in the UK, A has never since been resident in the UK nor permanently resident in the UK when, in law and fact she has been resident in the UK since June 2003 and permanently resident in the UK since June 2008;

(3) Each decision was taken without applying the correct test, namely that A could only be deported on serious grounds of public policy;

(4) Each decision-maker did not obtain and hence did not take account of an up to date and appropriate risk assessment or risk assessments of A;

(5) Each decision should have taken account of the best interests of B, C and G. That required each decision-maker to obtain or be provided with sufficient up to date information of the best interests of each child and a summary of each child's views as to his or her best interests to enable that decision-maker to be fully informed as to each child's best interests. Each decision-make was, in fact, provided with wholly insufficient information and was not provided with any information as to the views of each child.

(6) Each decision should have, but did not, give primary consideration to the best interests of B, C and G. Instead, each relied on out of date and inadequate information and assessments that largely dated back to A's offences committed in November 2008 and her criminal trial and sentence in September and November 2009 and a limited amount of more recent information obtained at the hearing of her FtT appeal in June 2011 and this information was never updated subsequently.

(7) Each decision failed to take account of the EEC dimension required by the Citizens' Directive ("CD") and the EEA Regulations.

(8) Each decision failed to consider or give effect to the article 8 rights of A, B, C, D or G.

(9) Each decision failed to undertake a proper or sufficient proportionality consideration in which all relevant factors were weighed up and considered in the round in order to determine whether it was proportionate to deport A.

Procedural issues of some difficulty also arise. These are:

(1) Whether the judicial review claim includes a challenge to the UT's "Cart" decision dated 12 October 2011and, if so, whether it is now open to A to make a Cart challenge to that decision;

(2) Whether the judicial review claim includes a challenge to the defendant's deportation decision dated 31 October 2011 and, if so on what grounds;

(3) Whether, the judicial review claim includes a challenge to the defendant's revocation decision dated 7 February 2012. If so, further issues arise as to whether:

(i) that decision was a revocation decision taken under paragraph 24A of the EEA regulations or was instead some other and what decision;

(ii) if the former, can A challenge the decision on the grounds that it has the effect of wrongly depriving her of an appeal at all and also deprives her of an in-country human rights appeal or whether A's only remedy is to appeal out-of-country on her arrival back in Germany;

(iii) if the latter, whether the challenge should be by way of appeal out-of-country or an in-country judicial review and, if the latter, on what grounds.

(4) Whether, and if so on what grounds, the judicial review claim includes a challenge to the 2013 removal directions decisions. If it does, what are the grounds of challenge. Further, is it open to A to challenge the removal directions on the grounds that they had not been preceded by a review carried out by the defendant as required by paragraph 24(5) of the EEA Regulations. A fresh regulation 24(5) deportation decision is required when enforcement of a deportation decision takes place more than two years after the original decision.

(5) In the light of all these considerations, I must then decide what order to make.

A's Conviction and Sentence

The basis of the defendant's various decisions to deport A or in relation to her potential deportation were her conviction and subsequent sentence on four counts involving very serious offences that related to her attempt to facilitate the admission into the UK of two Ghanaian minors who were unrelated to her using false German identification documents. She was convicted of two counts of assisting unlawful immigration and two counts of possessing false identity documents and was sentenced to 30 months imprisonment for the former matters and 18 months concurrent for the latter. She was also recommended for deportation.

A had been arrested on 8 November 2008 whilst attempting to enter the UK with the two minors concerned, was convicted after a trial at Lewes Crown Court on 29 September 2009 and remanded in custody, was sentenced on 6 November 2009 to 30 months less 43 days already spent in custody, was released on licence on 23 December 2010 ^[6] and was finally free of her sentence and probation supervision in March 2012.

A appealed her sentence and the deportation recommendation. On 14 May 2011, the Court of Appeal (Criminal Division) dismissed her appeal against sentence but allowed it in relation to the deportation recommendation which was dismissed on the grounds that it should never have been made.

The nature of A's offences and the basis of her sentence are clearly set out in the judgment of the Court of Appeal (Criminal Division) giving judgment in her appeal against her sentence ^[7]:

35. The appellant,[A], who was born on 21 August 1964, is not a citizen of the EU. She is a Ghanaian national. On 25 September 2009 she was convicted by a jury in the Crown Court at Lewes of two counts of assisting the unlawful entry into the United Kingdom of another person, contrary to s.25(1) of the 1971 Act, and two counts of possessing false identity documents contrary to s.25(5)(c) of the Identity Cards Act, 2006. On 6 November she was sentenced by Miss Recorder Cutts QC to serve 30 months' imprisonment on the first two counts, and eighteen months' imprisonment on the other two counts, all the sentences to run concurrently. A recommendation was made for her deportation. Her application for leave to appeal against the length of her sentences was refused by the Single Judge, and has been renewed. The Single Judge granted her application for leave to appeal against the recommendation that she be deported.

36. The appellant had a co-accused, Leticia Garban, who was born on 16 February 1980. Leticia Garban was charged and convicted only on the first count of the indictment. She was sentenced to 51 weeks' imprisonment suspended for two years, with an unpaid work requirement. No recommendation was made for her deportation.

37. On 8 November 2008 the appellant arrived at Gatwick Airport from Ghana. She had with her two children, a boy and a girl. The boy's travel documents were German, giving his name as Bernard Schatz. The girl's documents were also German and gave her name as Gwen Kirchoff. The travel documents and the names given were false. When questioned by immigration officers the appellant said that the boy was her son and the girl her niece. The officers were not satisfied and called the police. To the police, the appellant said that the boy was her nephew and that the girl was a child of a friend living in London. In fact the boy was the son of the appellant's co-accused and he, like the girl, who was ten years of age, was a Ghanaian national. It transpired that the co-accused had sent money to the appellant to fund the illegal entry of her son into the United Kingdom. The Recorder took the view that the appellant not only escorted the two children to the United Kingdom but had provided the false travel documents, and had done so for money.

38. The appellant was of previous good character. She had lived in Germany for 14 years and had been married to a German national. She had three children aged 17, 13 and 12, two of whom lived in Germany with an aunt, and one of whom lived in Ghana with the appellant's extended family. A pre-sentence report assessed the appellant's risk of re-offending as 1 in 10. The co-accused was 29 years of age, of previous good character, and living legitimately in the United Kingdom.

39. On the appellant's behalf, her counsel submits that there was an unjustifiable discrepancy between the custodial sentence received by the appellant and the suspended sentence imposed on the co-accused. In our judgement, however, the difference between the sentences was entirely justified. The co-accused was younger. She was convicted of only one offence, and that was in relation to her own son. The appellant on the other hand was involved professionally in that the children were unrelated to her, she acted for money and she supplied the false documents.

40. Counsel further submits that this was a case in which none of the aggravating features identified in the case of R. v. Stark [1999] 1 Cr. App. R. (S.) 422 was present. We disagree. The Recorder found that the offences were planned, that the appellant acted for money, and that the children were strangers to her. All these are amongst the aggravating factors identified in Stark.

41. Counsel further submits that the Recorder failed to give sufficient weight to the mitigation available to the Appellant. In fact, save for her good character which the Recorder acknowledged, there was no mitigation.

42. These were serious offences and a total sentence of 30 months' imprisonment cannot be regarded even arguably as manifestly excessive. Accordingly, we refuse the renewed application for leave to appeal against the sentences of imprisonment. We deal with the appeal against the recommendation for deportation at paragraph 49 and following below.

Three comments should be made about this passage from the judgment:

(1) For reasons that are not explained, A was tried, sentenced and considered during the appeal on the basis of her being a Ghanaian national whereas she was in fact a German national who, it would appear, had ceased to have Ghanaian nationality some years previously and before she had first arrived in the UK.

(2) The judgment handed down on 14 May 2010 refers to A having three children aged 17, 13 and 12, two of whom lived in Germany with an aunt, and one of whom lived in Ghana with A's extended family. These facts were clearly taken from the pre-sentence report when B, C and D were aged 17, 13 and 12. That report was prepared on 19 October 2009. That report was mistaken in stating that B, C and D were living in German and Ghana. The factual position appears to be somewhat different. The papers before the FtT showed that A had only been taken into custody after her trial verdict on 25 September 2009 to await sentence that took place on 2 November 2009. A lived with B, C and D whilst awaiting her trial since she was remanded on bail following her arrest in August 2008 and remained on bail until the conclusion of her trial. On being taken into custody on 25 September 2009, B and C moved temporarily to Germany to stay with one of their cousins, E and F whilst A was awaiting sentence but they returned soon afterwards to their home in Romford to be looked after by a family friend whilst A served the custodial part of her sentence. D had only been to Ghana once as a small child. The reference to a third child being in Ghana may have been made due to a misunderstanding of what A told the probation officer (in the interview in prison at which a Twi interpreter was present) since it is possible that A was referring to G who, on a later occasion^[8] A had stated had been living with her since 2006. In summary, therefore, in May 2010, B, C and D had resided uninterrupted in England since 2003 and B and C were only temporarily in Germany for a short period after 5 September 2009. D remained throughout the period from June 2003 in England.

(3) A was recommended for deportation by the sentencing judge and it was that recommendation which formed the principle ground of her appeal. Although the Court of Appeal considered this ground of appeal on the basis that A was Ghanaian, the apparent error in A being put forward as a Ghanaian did not affect the reasoning or decision of the Court of Appeal, particularly as the unrelated case involving two EEA nationals who had also been recommended for deportation by their sentencing judge were heard and decided by the Court of Appeal at the same time as A's appeal. The Court of Appeal decided that a recommendation for deportation should nowadays only be considered in very rare circumstances, whether the potential deportee was a foreign national or an EEA national and that, even if A was a Ghanaian, her case was not one of those rare cases that enabled the sentencing judge to consider making a recommendation.

The sentencing judge was required to give full reasons for making a recommendation to assist the SS when deciding to implement a decision (R v Nazari^[9]). These reasons were not referred to in the Court of Appeal's judgment or the FtT's determination. However, the judge would have had in mind that A would be deported to Ghana since she was put forward as a Ghanaian and the author of her pre-sentence report stated: "It is also indicated^[10] that deportation was a possibility, which presumably would be back to Ghana, her country of birth".

Relevant law

(1) Deportation Decisions - The EU Citizens' Directive and the UK EEA Regulations^[11]

The relevant parts of the complex provisions of the CD and the EEA Regulations must be considered and applied in this case since A, as an EU citizen by virtue of her German nationality, may only be deported if that deportation is permissible under the EEA Regulations which were enacted so as to transpose and give effect to the CD. Both must be interpreted and applied so as to promote the objective of the CD which is to give effect to the primary and individual right to move and reside freely within the territory of member states subject to the limitations and conditions laid down in the CD. These rights and protections are directly enforceable by EU citizens in domestic courts. The EEA Regulations must be read so far as is possible to be compatible with the CD. Now that the EU's adoption of the ECHR has now taken effect, both the CD and the EEA Regulations are also to be read so far as is possible so as to be compatible the ECHR. As a German national, A is both an EU and an EEA national.

Deportation decisions concerning A have to be considered by reference to Article 8 of the ECHR .that protects her home and private and family life. As Article 8 rights are qualified, the issue is often proportionality. Moreover, if the Secretary of State wishes to deport a foreign criminal who is a national of a member state of the EU, she is also subject to the additional constraints imposed by the CD which provides A with enhanced protection against deportation or "expulsion". Article 28 of the CD provides:

1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided in its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

If the EU citizen has resided in the host member state for the previous five years in accordance with the EEA Regulations and the CD, expulsion must be on "serious grounds of public policy or public security" (CD Article 28.3 and EEA Regulations, regulation 21(3)). In any event, there is a requirement of proportionality because decisions must be based "exclusively on the personal conduct of the individual concerned" and previous criminal convictions "shall not in themselves constitute grounds for taking such measures":

These requirements are transposed into the relevant regulations for this claim being regulations 15, 19, 21, 24, 24A, 26 and 27 of the EEA Regulations. The relevant parts of this regulation are as follows:

Permanent right of residence

This section has no associated Explanatory Memorandum

15(1) The following persons shall acquire the right to reside in the United Kingdom permanently—

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations^[12] for a continuous period of five years;

(c) a worker or self-employed person who has ceased activity;

(d) the family member of a worker or self-employed person who has ceased activity;

(e) a person who was the family member of a worker or self-employed person where—

(i) the worker or self-employed person has died;

(ii) the family member resided with him immediately before his death; and

(iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;

(f) a person who—

(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and

(ii) was, at the end of that period, a family member who has retained the right of residence. …

Exclusion and removal from the United Kingdom

… 19(3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if –

(a) that person does not have or ceases to have a right to reside under these Regulations; or

(b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21.

(4) A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.

Decisions taken on public policy, public security and public health grounds

21(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.

(2) A relevant decision may not be taken to serve economic ends.

(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.

(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—

(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or

(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—

(a) the decision must comply with the principle of proportionality;

(b) the decision must be based exclusively on the personal conduct of the person concerned;

(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e) a person's previous criminal convictions do not in themselves justify the decision.

(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.

Person subject to removal

24(1) This regulation applies to a person whom it has been decided to remove from the United Kingdom in accordance with regulation 19(3).

(2) Where the decision is under regulation 19(3)(a), the person is to be treated as if he were a person to whom section 10(1)(a) of the 1999 Act applied, and section 10 of that Act (removal of certain persons unlawfully in the United Kingdom) is to apply accordingly.

(3) Where the decision is under regulation 19(3)(b), the person is to be treated as if he were a person to whom section 3(5)(a) of the 1971 Act (liability to deportation) applied, and section 5 of that Act (procedure for deportation) and Schedule 3 to that Act (supplementary provision as to deportation) are to apply accordingly.

(4) A person who enters or seeks to enter the United Kingdom in breach of a deportation order made against him pursuant to paragraph (3) shall be removable as an illegal entrant under Schedule 2 to the 1971 Act and the provisions of that Schedule shall apply accordingly.

(5) Where such a deportation order is made against a person but he is not removed under the order during the two year period beginning on the date on which the order is made, the Secretary of State shall only take action to remove the person under the order after the end of that period if, having assessed whether there has been any material change in circumstances since the deportation order was made, he considers that the removal continues to be justified on the grounds of public policy, public security or public health.

(6) A person to whom this regulation applies shall be allowed one month to leave the United Kingdom, beginning on the date on which he is notified of the decision to remove him, before being removed pursuant to that decision except—

(a) in duly substantiated cases of urgency;

(b) where the person is detained pursuant to the sentence or order of any court;

(c) where a person is a person to whom regulation 24(4) applies.

Revocation of deportation and exclusion orders

24A (1) A deportation or exclusion order shall remain in force unless it is revoked by the Secretary of State under this regulation.

(2) A person who is subject to a deportation or exclusion order may apply to the Secretary of State to have it revoked if the person considers that there has been a material change in the circumstances that justified the making of the order.

(3) An application under paragraph (2) shall set out the material change in circumstances relied upon by the applicant and may only be made whilst the applicant is outside the United Kingdom.

(4) On receipt of an application under paragraph (2), the Secretary of State shall revoke the order if the Secretary of State considers that the order can no longer be justified on grounds of public policy, public security or public health in accordance with regulation 21.

(5) The Secretary of State shall take a decision on an application under paragraph (2) no later than six months after the date on which the application is received.

Appeal rights

26(1) Subject to the following paragraphs of this regulation, a person may appeal under these Regulations against an EEA decision. …

(4) A person may not bring an appeal under these Regulations on a ground certified under paragraph (5) or rely on such a ground in an appeal brought under these Regulations.

(5) The Secretary of State or an immigration officer may certify a ground for the purposes of paragraph (4) if it has been considered in a previous appeal brought under these Regulations or under section 82(1) of the 2002 Act. …

(7) The provisions of or made under the 2002 Act referred to in Schedule 1 shall have effect for the purposes of an appeal under these Regulations to the Asylum and Immigration Tribunal in accordance with that Schedule.

Out of country appeals

27(1) Subject to paragraphs (2) and (3), a person may not appeal under regulation 26 whilst he is in the United Kingdom against an EEA decision—

(a) to refuse to admit him to the United Kingdom;

(aa) to make an exclusion order against him;

(b) to refuse to revoke a deportation order made against him;

(d) to remove him from the United Kingdom after he has entered the United Kingdom in breach of a deportation or exclusion order.

(2) Paragraphs (1)(a) and (aa) do not apply where—

(a) the person held a valid EEA family permit, registration certificate, residence card, document certifying permanent residence or permanent residence card on his arrival in the United Kingdom or can otherwise prove that he is resident in the United Kingdom;

(b) the person is deemed not to have been admitted to the United Kingdom under regulation 22(3) but at the date on which notice of the decision to refuse to admit him is given he has been in the United Kingdom for at least 3 months; or

(c) a ground of the appeal is that, in taking the decision, the decision maker acted in breach of his rights under the Human Rights Convention or the Refugee Convention, unless the Secretary of State certifies that that ground of appeal is clearly unfounded.

(3) Paragraph (1)(d) does not apply where a ground of the appeal is that, in taking the decision, the decision maker acted in breach of the appellant's rights under the Human Rights Convention or the Refugee Convention, unless the Secretary of State certifies that that ground of appeal is clearly unfounded.

(2) Case law

Three decisions of the Court of Appeal were cited by Ms Longhurst-Woods, one of which was of particular importance. This was Dana Essa v The Upper Tribunal^[13] which was decided as recently as 21 December 2012. The others were Machado v SS for the HD^[14] and BF (Portugal) v SS for the HD^[15]. In outline, these decisions show how the decision-maker who was considering whether A could be deported on public policy grounds should take that decision. This can be seen from these extracts of the judgments taken from BF (Portugal and Dana Essa):

1. BF (Portugal):

"2. "Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles --

(a) the decision must comply with the principle of proportionality;

(b) the decision must be based exclusively on the personal conduct of the person concerned;

(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e) a person's previous criminal convictions do not in themselves justify the decision."^[16]"

[My insertion: The decision-maker must also take account of the considerations listed in regulation 21(6) of the EEA Regulations.^[17]]

"3. The tribunal also set out regulation 21(6) of the Regulations and referred to the decision in MG and VC (EEA Regulations; conclusive deportation; Ireland))^[18]http://www.bailii.org/uk/cases/UKIAT/2006/00053.html, which stressed the introduction of the word "serious" into the regulations. The tribunal had to determine (1) what was the relevant personal conduct of the respondent? Having determined that question, it had to decide (2) whether that conduct represented a genuine, present and sufficiently serious threat and, if so, (3) whether that threat affected one of the fundamental interests of society. It also had to stand back and consider (4) whether the deportation of the respondent would be disproportionate in all the circumstances. …".^[19]

2. Dana Essa:

"… Advocate General Bot delivered his Opinion in Land Baden-Würtemberg v Tsakouridis^[20]:

"In my view, when [the] authority takes an expulsion decision against a Union citizen following the enforcement of the criminal sanction imposed, it must state precisely in what way that decision does not prejudice the offender's rehabilitation. Such a step, which relates to the individualisation of the sanction of which it is an extension, seems to me to be the only way of upholding the interests of the individual concerned as much as the interests of the Union in general. Even if he is expelled from a Member State and prohibited from returning, when released the offender will be able, as a Union citizen, to exercise his freedom of movement in the other Member States. It is therefore in the general interests that the conditions of his release should be such as to dissuade him from committing crimes and, in any event, not risk pushing him back into offending."

This emphasis on "the general interests" and "the interests of the Union in general" is mediated through the proportionality test which "takes on a special significance which requires the competent authority to take account of factors showing that the decision adopted is such as to prevent the risk of reoffending"^[21]

9. In its judgment … the CJEU described^[22] one side of the equation as:

"the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, which as the AG observes in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general."

Thus there is a European dimension which widens consideration beyond the interests of the expelling Member State and those of the foreign criminal.

10. Lang J … interpreted Tsakouridis as follows:

"In my judgment, the judgment … in Tsakouridis establishes that the decision-maker, in applying regulation 21 of the EEA Regulations, must consider whether a decision to deport may prejudice the prospects of rehabilitation from offending in the host country, and weigh that risk in the balance when assessing proportionality under regulation 21(5)(a). In most cases, this will necessarily entail a comparison with the prospects of rehabilitation in the receiving country … "."

Decision of the Defendant

There cannot be a direct judicial review challenge to the decision of the defendant dated 23 December 2010 to make a deportation order against A on the grounds that, in the light of her conviction, her removal was justified on the grounds of public policy, public security or public health. A's remedy, which she exercised, was by way of an appeal to the FtT. However, it is helpful to consider that decision since it set the scene for the subsequent determination of the FtT dismissing A's appeal. The decision letter was not available but the basis for the decision was summarised in the FtT's determination. The defendant's reasons for making a deportation order against A, B and C were that:

(1) A had provided no evidence of the precise date of her arrival in the UK, she had failed to show that she had exercised any treaty rights and she was dependent on public funds. She was, therefore, neither resident nor permanently resident in the UK.

(2) The decision to deport her was based on the defendant's view that A retained a propensity to reoffend given her blatant disregard for the requirements of the Immigration Rules and her failure to take responsibility for her actions. The offence that highlighted these genuine, present and sufficiently serious threats to the public involved her providing false documentation to facilitate bringing two children into the UK for financial gain as both a favour to a friend and to facilitate the entry of strangers. Moreover, following her arrest, three false German identity documents were found at her home address which she could not account for. Her detrimental attitude of mind was highlighted by the fact that these actions were taken despite the impact that they would have on her own children.

(3) The decision was proportionate since she had no close ties to the UK, was not resident or permanently resident in the UK and had been resident in Germany for 14 years before her arrival in the UK. There was no good reason why her children could not return to Germany and there was no evidence that they had continuously resided in the UK for at least five years.

Determination of the FtT

The appeal determination of the FtT mirrored the decision of the defendant. That determination gives rise to a possible appeal on the grounds that it was unlawful, breached A, B and C's rights under the Community Treaties in respect of their residence in the UK or was otherwise not in accordance with the law ^[23]. It is necessary to consider these grounds in some detail. I will consider them under five separate headings.

(1) German or Ghanaian national

There is no reference in the determination to the fact that A had been charged, tried, sentenced and dealt with on appeal as a Ghanaian national in her criminal trial and that it was now clear that that was a mistaken view of her nationality. A's appeal had been decided in a judgment handed down more than a year before the FtT hearing and a copy of the Court of Appeal judgment in her sentencing appeal was in the bundle of documents that were placed before the tribunal. There was at least a risk that the FtT was less rigorous in its determination of A's appeal under the EEA Regulations because it regarded her as being, in reality, a Ghanaian who was relying on her German nationality as a technicality. The FtT might also have erroneously considered her to have been a dual national which she was not. The determination should have referred to this mistake and made it clear that it had proceeded on the basis that A only held German nationality and that she had been considered exclusively on that basis.

(2) Permanent residence

The FtT found that A had not established on the balance of probabilities that she had arrived in England prior to August 2004 even though she contended that she had arrived in June 2003. Moreover, the FtT found that she had not established that she was resident or permanently resident in the UK by having resided in accordance with the EEA Regulations as a jobseeker, worker or self-employed or self-sufficient person for a continuous period of at least 5 years as required by those Regulations ^[24]. She therefore fell under Regulation 19(1) which states that a person is not entitled to be admitted to the UK if her exclusion is justified on grounds of public policy.

Exercising freedom of movement. It is difficult to see how those findings could be justified. A's evidence was that she had arrived to set up residence in England with B, C and D in June 2003. She explained that she wished to educate her children in England and, since her divorce. Although she was a German national, she and they had no basis for staying in Germany. Her ex-husband provided no financial support, D's father had died many years previously and her two elder children were unable to help support them. She could not speak German and she had not integrated with German culture or society. She also wished to obtain employment or self employment in England and had sufficient means to support herself and her three children. On the basis of that evidence, if it was accepted, A arrived in the UK to take up residence here exercising her and her children's rights as EU citizens to move freely and to live in the UK.

Seeking employment and date of first residence. A supplied a document to support her evidence that she had arrived in England some months prior to December 2003 to live here and to seek employment. The document that she had applied for a job as a cleaner in December 2003. She gave as her address a an address in Romford and she also provided details of her doctor's name and address and of a referee who was described as a "family liaison officer" on the application form. These details provided good evidence of her and her children having established residence in the Romford area well before December 2003.

Self-employment. A had seamstress skills and childminding abilities that she was able to use a self-employed person and there was some evidence that she had helped to support the family with her work in these two areas.

Self-sufficiency. A supported herself and her three children for a period of about 8 years between the date of their arrival in the UK and the FtT hearing ^[25]. Her and D's evidence was that she was divorced in 2002 and that her ex-husband had disappeared from their lives and had never provided her or his two children and one step-son with any financial support. This period of residency demonstrated good evidence of her residing legally with her children for period^[26].

The FtT decision concluded that A was not self-sufficient because she had been reliant on public funds, mainly child tax credits. However, the relevant test provided for by the CD is that A and her children should not become a burden on the social assistance system during their period of residence ^[27]. Child tax credits do not fall within the class of assistance referred to as "social assistance system" and in any event receipt of tax credits does not constitute "a burden on the social assistance system". There was, therefore, good evidence that A had been self-sufficient during the entire period of her residence in the UK.

Continuous education. A provided the FtT documentary evidence that her three children had been continuously enrolled in primary and secondary schools since the autumn term of 2003, first at St Patrick's Catholic Primary School in Romford and then at All Saints Catholic School and Technical College in Dagenham. D had been continuously educated at these schools for 7 years between September 2003 and 2010, B is still at the Technical College having been continuously educated for 9½ years from 2003 to 2013 and C is still at the Technical College having been educated continuously for 9 years from January 2004 to 2013. D's evidence in June 2011 was that they had lived continuously in the same house in Romford since soon after their arrival in England.

Residence. A produced the decision of the Homelessness Review panel of Havering LBC dated August 2004. It is a reasonable inference from this decision that the panel was considering A's review application of a homelessness decision of the Havering LBC. It would also appear from that decision that A and her children had been living previously at an address in Romford, had been about to become homeless and had applied to Havering LBC as persons about to be made homeless for alternative accommodation. The local authority had then offered them an alternative address in Romford that they subsequently resided at for many years. The local authority was clearly exercising its homelessness duties under Part VII of the Housing Act 1996 and A had clearly asked for a statutory review of that decision on the grounds that the proposed accommodation was located too far away from her children's school. The panel declined to change the original decision and the family then accepted that alternative accommodation and moved there.

This decision therefore demonstrates that A and her children were resident in the Havering LBC in a house in Harold Hill since sometime in 2003. This inference arises because a local authority exercising homelessness duties is only entitled to do so for those who are made homeless or are about to be made homeless who are already resident within their area.

This decision was sent to A at another address in Romford to that proposed as her alternative accommodation, being the address given by A as her address in the job application document dated December 2003. It follows from this evidence that A and her children had lived at one address in Romford since well before December 2003, were regarded as being legally resident there by Havering LBC and were rehoused on becoming homeless to another address in Romford where they resided legally for many years thereafter.

There was also the evidence from the church that the family have attended that they had been members of its congregation since 2003 or 2004. The Minister in Charge provided the FtT with a letter dated 17 April 2011 which stated that A had been an active and loyal member of the Church for about 5 or 6 years.

General considerations. The burden of proof in establishing that A was neither resident nor permanently resident was on the defendant since it was the state that was wishing to prove an entitlement to deport A on public policy or public security grounds. Moreover, even if the burden of proof lay with A, it would appear that she had discharged it. She had established a prima facie evidential case for being resident within the EEA Regulations so that the burden of proof would have shifted to the defendant to show the contrary and no additional evidence was provided to shift it back again.

In any event, it was too late for the defendant to contend, and for the FtT to find, that A was not resident in accordance with the EEA Regulations between 2003 and 2008 since the defendant first took that point in 2010 after A and her children had been in continuous education since 2003. Thus, by the time A was remanded in custody in September 2009, she had been resident in the UK for at least 6 years. Throughout that period, the state had treated her as being legally resident in accordance with the EEA Regulations since she had been permitted child tax credits, had been rehoused by a local housing authority as a social tenant and had remained in that house from then on. Her children had been continuously educated in state-funded schools. She and her children had lived without being a burden on the state throughout that period. Overall, all four family members had arrived with the intention of exercising CD rights of residence in the UK on a long-term basis and had been allowed to do so for many years.

It follows that there was, to put it at its lowest, a very good case for A succeeding in her proposed appeal in showing that she had arrived with her three children in the UK in June 2003 and that she has been resident in the UK continuously since then, save for her 15 months in prison between September 2009 and December 2010. She also has a very good case for establishing that her and her children's residence was both legal and in accordance with the EEA Regulations and that they were, well before September 2009 when she was convicted, permanently resident in the UK. Thus, the FtT decision should have treated A and her children as being permanently resident in the UK.

(3) Personal conduct

For A to be deported, her personal conduct had to represent a genuine, present and sufficiently serious threat to the fundamental interests of the UK. If she was permanently resident in the UK at the time of her deportation decision in December 2010, she could only be deported on "serious grounds of public policy or public security". If she was only resident in the UK, she could be deported on grounds of public policy or public security. The relevant, and sufficiently serious threats identified by the defendant and the FtT were the threat of A in the future committing further offences or being involved in conduct that involved the unlawful importation for financial gain of Ghanaian children who were unrelated to her into the UK using forged Ghanaian travel documents.

This was a very specific risk posed by someone who had been a first offender when committing the relevant offices, who had not been convicted subsequently and who was assessed in her pre-sentence report as being a low risk of reoffending with a statistical profile suggesting that 10% of those with a similar profile would re-offend. Moreover, only 3 of the 8 "factors contributing to offending" were marginally above the 50% "threshold of concern". One of these was employment yet A had lived as a self-sufficient mother for an appreciable period of time and it was therefore difficult to see why continued unemployment would heighten her risk of offending. A second was "attitudes" yet this contributing factor had been assessed before A had undergone 15 months of community-based probation supervision and one-to-one attitude training with her probation officer during her licence period of her sentence and had also had language, literacy and numeracy training. The third was "lifestyle and associates" yet this took no account of her active involvement in her church community and her children's lives for an appreciable period of time since her release.

Whatever deductions could be drawn from the OASys and likelihood of reoffending assessments which were referred to in the pre-sentence report, the report and the assessments that it was based on were significantly out of date. The report had been prepared for A's sentencing exercise in November 2009 nearly two years before the FtT hearing. Moreover, it had been prepared before A had served 15 months in prison and before her offending behaviour work in prison and any of her work with her probation officer on licence had been experienced.

The defendant should have obtained, and the FtT should have directed at a pre-hearing case management hearing, an up-to-date probation report and up-to-date OASys and likelihood of reoffending assessments. These would have been critically important documents since the FtT had to undertake an up-to-date risk assessment of the likelihood of A behaving in the offence specific way that she had adopted in 2008. That behaviour was the only behaviour that the defendant had identified as contributing to the risk to the fundamental interests of the UK on which the deportation decision was based. If such up-to-date documents had not been available, it was neither reasonable nor in conformity with the EEA Regulations for the FtT to rely on the 2009 documents since it had to assess proportionality of deporting A when set against her present threats to society, it could not rely on A's previous conviction standing alone or on the threat she had posed when being sentenced two years earlier.

(4) Interests of B, C and possibly G

B and C's best interests were a primary consideration that had to be taken account of by the FtT judge in reaching her determination. The determination purported to take their best interests into account as a primary consideration. What is striking, however, is that there was no evidence of B and C's views as to their best interests although this is a prime source of information that a decision-maker should take into account, particularly when a child is a teenager in full time education. No-one had been to see each child and they had not been asked what they thought of the possibility of their being returned to Germany some 8 or more years after making their home in England where they had lived throughout their formative years and with several more years of education to experience before they became adults. The evidence suggests that they spoke very little German, that they had no friends or relatives who they had bonded with in Germany, that they were not attuned to German culture and that they had become fully integrated into an English way of life. They were also entitled to permanent residency – having resided and having been in full-time education in England for over five years. Moreover, they could not be deported save on imperative grounds where, additionally, that decision was in their best interests since they were under 18 ^[28].

There was no impediment to the defendant obtaining B and C's views. An UKBA official could have undertaken a home visit and conducted an interview of each child and could have made or arrange to have been made a report of what was in their best interests. The FtT could have directed the production of B and C's school reports and a report or witness statement which analysed the life would be available to them in Germany if they returned there. It was sufficient for the decision-maker to rely exclusively on the evidence provided by A and her legal representative. Much of the additional information could have been obtained in the kind of home visit that a representative of the defendant had made in August 2012 to make enquiries about G. Alternatively, a Guardian or a social services' report could have been commissioned. Such inquiries would have enabled both the defendant and the FtT to comply with their respective section 55 duties, as explained in the relevant statutory guidance "Every Child Matters" document ^[29].

It now appears that it is possible that G's interests should also have been considered. If G, had started living with A in about 2006 at about the age of 2, as she claimed in her UKBA home visit interview in 2012, her interests should have been considered in 2011. It is of course the case that neither A nor her legal representative had made any mention of G and that the official who made a home visit in 2012 found no evidence that G was living there. However, any future assessment of the best interests of children directly affected by A's deportation must at least consider whether G is likely to be affected and, if so, what her best interests are.

(5) European dimension.

Neither the defendant nor the FtT took account of the European dimension involved in the decision to deport A that it is now clear should have been taken account of. In this case, that consideration should have involved a consideration of whether the risk of A re-offending if she was to be deported to Germany would be heightened or reduced compared to her risk of re-offending if she remained in the UK. The decision-maker needed to consider the effect on her risk of re-offending of her being deported to live in Germany since this would involve her probable enforced separation from her 3 children, her return to a country whose language and culture appeared alien to her and her lack of a home and any identified means of financial support. It is clear that, if investigated, these matters might well show that A's risk of repeat behaviour of the kind leading to her conviction would be raised significantly if she was deported to Germany without her children compared to her current risk of re-offending if she remained in the UK.

If that comparative risk assessment showed that she would be an appreciably higher risk of re-offending if deported compared to her risk if not deported, it would be contrary to the CD to deport her save on very good grounds. The FtT did not consider the European aspect of the deportation. It is not an answer to that failure that this type of consideration only became mandatory in 2011 as a result of the Daha Essa decision. A consideration of the European dimension was always required when deportation was being considered under the EEA Regulations, the decision in Daha Essa merely highlighted that requirement.

(6) Proportionality.

The FtT decision-maker had to weigh up all relevant factors in reaching a decision as to whether or not it was proportionate to order A's deportation. Amongst the factors which were not considered, or were insufficiently considered, were:

a) The family's permanent residence in England and their residence here for at least 8 years;

b) A's inability to speak German and her lack of a home, financial support or German roots;

c) The lack of any means of support for A in Germany or for her children in England if she was forced to live in Germany;

d) The enforced break-up of the family;

e) The potentially greater likelihood of A re-offending if she was deported to Germany compared with that likelihood if she remained in the UK with her children.;

f) A's previous good character and the offence specific nature of her offence giving rise to her being a low risk of re-offending;

g) The evidence of a further reduction in risk and of an improved attitude to the need to avoid any repeat behaviour that had occurred in the years between 2009 and 2013;

h) The full effect on B and C of their mother's deportation and their views as to this possibility, if they were forced to go and live in Germany. These were primary considerations; and

i) The possibility that A, through her lack of education and the absence of an interpreter at the FtT hearing, had not been able fully to identify the extent to which she accepted responsibility for, and had learnt from, the very serious offences that she had committed in 2008.

Serious grounds of public policy rather than public policy

Both the defendant and the FtT, having considered and decided that A could be deported on grounds of public policy and public security, added in an apparently throwaway manner at the end of their respective decisions that, as the FtT put it:

"… if we were wrong and the appellant has acquired permanent residence, we consider that for the same reasons [A]'s deportation is justified on serious grounds of public policy or public security".

The FtT had decided that A was not permanently resident and had reached its decision on that basis. In apparently reaching an alternative decision based on serious grounds of public policy and public security, it reached an alternative decision for which they gave no reasons. It needed to explain why the threat to public policy or public security was not merely at the third and lowest tier but was also in the intermediate tier of permitting deportation only where the grounds were "serious". Otherwise, it is highly arguable that the decision that there were serious grounds was Wednesbury unreasonable.

If this conclusion was to be made, A was entitled to two separate risk assessments, one on the "ordinary" ground and an alternative one on the "serious" ground. It was not sufficient to provide as a throwaway afterthought that deportation would in any case justified have been justified on "serious" grounds having reached the conclusion that it was justified on "ordinary" grounds.

Cart Challenge

Taken together, these matters clearly give rise to an entitlement to make a Cart challenge to the decision of the Upper Tribunal in refusing permission to appeal. This is for the following reasons:

Determination of the FtT. This was clearly wrong since it failed to take account of so many highly significant matters.

Decision of the Upper Tribunal. The Upper Tribunal judge considered that it was unarguable that A was permanently resident, that the FtT judge had correctly directed herself as to the balancing exercise in relation to the best interests of B and C and had given adequate reasons for departing from the pre-sentence report and its conclusion based on the assessments that it relied on. However, none of the matters summarised above were referred to or considered. The refusal decision was, therefore, also clearly wrong since an appeal was clearly likely to succeed.

Cart criteria. A is entitled to a judicial review of the Upper Tribunal decision if there is some compelling reason for that course. In addition to the factors set out above, which are sufficient to give rise to a compelling reason, there are the further additional factors that strengthen that conclusion.

(1) Revocation decision

71. The defendant, in agreeing to reconsider the decisions dated 22 December 2010 and 31 October 2011, decided to withdraw the deportation orders that had been made against B and C. This withdrawal part of the decision was not accompanied by any reasons but it was presumably made on the grounds that such orders could not be made against B and C unless on imperative grounds and then only if in their best interests. This gave rise to a fresh ground of considerable significance in so far A was concerned. The decision not to deport B and C had the effect of entitling them to remain in England even if A was deported and A was to be deported nonetheless. Deporting A after that decision had been made would appear to be contrary to the basic tenets of the CD and to be a potentially very serious interference with the private and family lives of A as well as of B, C and D. This was particularly so since B and C would be entitled to remain in England to complete their education but were still children with no other known means of support and with very few remaining ties in Germany and no German language skills. They would therefore have to return to Germany unless provision for their support, which was in their best interests, could be provided to enable them to remain in England without their mother. This called for a further assessment of the deportation decision affecting A given the significant change of circumstances since the previous deportation decision. Moreover, the 7 February 2012 decision about A was taken without ascertaining B and C's views or obtaining an up-to-date assessment of what was in their best interests.

73. (2) Appeal

72. It is debatable whether the decision of 7 February 2012 was a revocation decision taken under regulation 24A(1) the EEA Regulations at all. It was, in reality, a decision that the two deportation decisions dated 22 December 2010 and 23 October 2011 would not be withdrawn and it was made in consequence of the agreement reached between A's and the defendant's legal representatives that A's judicial review challenging the legality of those earlier decisions would be withdrawn if those decisions were themselves reconsidered for withdrawal. If that is a correct analysis, the 7 February 2012 decision is an EEA decision which carries with it an in-country right of appeal.

However, the defendant issued the decision as a revocation decision under regulation 24A and certified that there had been no material change of circumstances. That deprived A of an appeal on human rights grounds whilst she remained in the UK and left her with an out-of-country appeal once she arrived back in Germany. If the decision was to be taken to be a refusal to withdraw the deportation orders having reconsidered them, it would be a deportation decision and hence an EEA decision which would enable A to appeal it to the FtT. Any such appeal would have good prospects of success since the underlying decision that was being appealed had erroneously failed to take account of the many factors that the FtT's deportation decision had previously failed to take into account.

(3) Article 8.

There has been no consideration of B and C's article 8 rights and their potential infringement that would result from A being deported in the changed circumstances in which they are entitled to, and would apparently wish to, remain in England to complete their education.

(4) A's entitlement to a fresh deportation decision.

Paragraph 24(5) of the EEA Regulations entitles A to a fresh assessment as to whether there has been any change in circumstances since the original deportation order was made and as to whether the removal order continues to be justified on the grounds of serious public policy and public security. The relevant deportation decision was that taken on 22 December 2010. The subsequent decision taken on 31 October 2011 was merely confirmatory of the earlier decision and was taken without any fresh consideration as to whether the earlier decision should be enforced. The decision taken on 7 February 2011 was, as has already been explained, not a revocation decision since it was taken whilst A remained in the UK and was in substance a review of the previous decisions. It did not contain a fresh assessment of A's risk or of the changed circumstances that had occurred. No fresh probation reports were obtained, no consideration of any change in A's propensity to re-offend was undertaken, no fresh details of what would be in B and C's best interests were carried out, no ascertainment of their views took place and no consideration of A's changed situation as being permanently resident in the UK occurred.

It follows that A would appear to be entitled to a regulation 24(5) consideration of her deportation prior to any enforcement action, a reconsideration that would take place some five years after her offending, 4 years after the pre-sentence report that is still relied on was prepared and after her post-custodial probation work with the probation officer, her language, literacy and numeracy training, the lengthy period following the end of her sentence during which she has remained offence-free and her life over a period of over 2 years since her release living with her children and amongst her church community.

Procedural Difficulties

It is contended on behalf of the defendant that the present judicial review, in its amended form, does not contain a Cart claim. The relevant pleadings to consider are the amended grounds settled in February 2012 which it has been agreed on behalf of the defendant may now be pursued. It is the case that no express Cart grounds have been set out in that pleading as good practice demands ^[30]. Furthermore, the Upper Tribunal has not been joined as a defendant.

However, these procedural objections can be and should be overridden for these reasons:

(1) The SSHD has been throughout a defendant and has taken a full part in the claim having serving an amended summary grounds of defence and in opposing this oral renewed application for permission by counsel.

(2) The claim form was issued on 28 November 2011 following the Upper Tribunal's refusal decision which took effect on 13 October 2011. Under the rules then operating for Cart cases, the claim as originally made was well within time^[31].

(3) The claims that are being advanced pursuant to that original claim can be read as including a Cart claim.

(4) The grounds that set out in A's amended grounds document may be pursued as part of the original claim given the procedural agreement reached by the parties and embodied in the consent order dated 13 February 2012 and sealed on 30 October 2012. This order provided that:

"… the claimant's application for permission to apply for judicial review issued on 28 November 2011 be allowed to proceed on the basis of amended grounds received on 27 February 2012".

(5) The amended grounds contain paragraphs 8 – 56 which are headed "Amended Grounds for challenging the Upper Tribunal's Refusal of Leave to Appeal". The defendant has pleaded to the amended grounds, in part by pleading that the refusal of permission by the Upper Tribunal is "not susceptible to judicial review" because "the claimant can[not] establish an important point of principle or other compelling reason". The summary amended grounds document pleads, both fairly and fully, to all grounds advanced in the amended grounds document including the application for a judicial review of the Upper Tribunal's refusal decision. This pleading seeks to show that no compelling reason for a second appeal exists.

(6) A, through her counsel at the hearing of the renewed application for permission, had put forward a succinct statement of the suggested compelling reason why Cart permission should be granted. The two relevant paragraphs^[32] are:

"1. The relevant provisions of EU law and relevant case law have not been adequately addressed properly and/or adequately and so have not been applied by the FtT or the Upper Tribunal in this case.

2. Furthermore, relevant considerations arising under article 8 ECHR and the cases on the best interests of the child have not been properly considered by the FtT decision or by the refusal decisions of the FtT or the Upper Tribunal."

(7) The Upper Tribunal can and should be added as a party. I deal with the relevant procedure that is to be adopted in paragraph 84 below

Conclusion

I consider that A has an very strongly arguable case which has very strong prospects of success that both the decision of the Upper Tribunal refusing permission to appeal and the decision of the FtT against which permission to appeal was sought were wrong in law. Subject to the procedural directions that I will incorporate into the order giving effect to this judgment, this claim may be made the subject of the grant of permission for the claimant to apply for judicial review of the Upper Tribunal decision of 13 October 2011. I therefore grant A's application to re-amend the grounds and for permission to apply for judicial review of the Upper Tribunal's refusal decision of 13 October 2011 to grant her permission to appeal the decision of the First-tier Tribunal dated 4 July 2011 in Appeal Number IA/11597/2011.

I propose to adjourn A's application for permission to challenge the defendant's decision dated 7 February 2012 and the application for permission to re-amend the grounds so as to add a challenge to the removal directions dated 16 January 2013. If A succeeds in her appeal against the FtT decision, the 7 February 2012 decision and any extant removal decision will fall away and will not need to be considered. If A does not succeed in her Cart challenge and its aftermath, the claimant may renew her application for permission to re-amend the grounds document and to challenge these two decisions and to challenge, if so advised, any possible failure by the defendant to undertake a fresh paragraph 24(5) reconsideration.

I would hope that the defendant will now consider whether to revoke the current deportation orders and, if she wishes to continue with deportation, to invite fresh reasons from A and her legal representatives why a deportation order should not be made and then make a fresh deportation decision.

If the case is to continue, I draw attention to the provisions of CPR 54.7A. The relevant provisions are to the following effect:

(1) A Cart application may not include any other claim than the "Cart claim".

(2) The claim form should be served on the Upper Tribunal as well as the defendant.

(3) If the Upper Tribunal wishes to take part in the proceedings, it must file and serve an acknowledgement of service within 21 days of service on it of the claim form.

(4) If the Upper Tribunal wishes there to be a hearing of the substantive application, it must make its request for such a hearing no later than 14 days after service of the order granting permission. If no request for a hearing is made within that period, the court will make a final order quashing the refusal of permission without a further hearing.

83. The parties' counsel agreed the terms of an order to give effect to this judgment which enabled these procedural provisions to be complied with. A copy of the terms of that order is set out in the appendix to this judgment.

HH Judge Anthony Thornton QC

22 May 2013

Appendix

Terms of the Order of 22 May 2013 to give effect to the judgment

Following the grant of permission to apply for judicial review as set out in the Judgment of HHJ Thornton Q.C. handed down on 22 May 2013

IT IS HEREBY ORDERED:-

The Upper Tribunal (Immigration and Asylum Chamber) be substituted as Defendant and the Secretary of State for the Home Department be added as an Interested Party;

The Administrative Court do serve on the Defendant and Interested Party a copy of the Judgment of HHJ Thornton Q.C. dated 22 May 2013 granting permission ("the Judgment");

The Claimant do have permission to re-amend the grounds for judicial review so as only to plead in the re-amended grounds a Cart challenge to the Upper Tribunal's decision to refuse the Claimant permission to appeal the First Tier Tribunal's determination. The important point of principle/practice is in the terms set out at Paragraph 78 (6) of the Judgment;

The Claimant's application for permission to apply for judicial review on all other grounds be stayed with liberty to apply following determination of the Cart challenge;

The re-amended Claim Form and Grounds of Challenge be filed and served by the Claimant on the Defendant and Interested Party by 4pm on 31 May 2013;

The Defendant and/or Interested Party to file and serve on all parties an amended Acknowledgement of Service, if so advised, or a request for a full hearing pursuant to CPR 54.7A(9)(a) by 4pm on 14 June 2013;

If an amended Acknowledgement of Service and/or request for a full hearing is filed, in accordance with paragraph 6 above, the following directions shall apply:-

(a) The Interested Party and/or Defendant do file and serve detailed grounds of defence, if so advised, and any additional evidence upon which the Interested Party and/or Defendant intends to rely by Wednesday 3 July 2013;

(b) The substantive hearing be listed on the first available date after Wednesday 10 July 2013, with a time estimate of 1 day;

(c) The Claimant to file and serve a skeleton argument no later than 14 days before the date of the substantive hearing;

(d) The Interested Party and/or Defendant to file and serve a skeleton argument no later than 7 days before the date of the substantive hearing;

(e) The Claimant to file and serve an agreed trial bundle and agreed bundle of authorities no later than 4 days before the date of the substantive hearing;

If the Defendant and/or Interested Party fails to file an amended Acknowledgement of Service and/or a request for a full hearing in accordance with Paragraph 6 above, then the Court shall proceed in accordance with CPR 54.7A(9)(b);

Costs reserved.

Note 1    [2010] 2 WLR 325, SC at paragraph 28.    [Back]

Note 2    A’s English language skills had clearly developed from the date of her trial in September 2009 where she had an interpreter to the date of her FtT hearing in June 2011 where she gave evidence without an interpreter (see paragraph 42 of the determination). She was also taking literacy learning courses in the English language in 2011 which must also have helped her to improve her English language skills. Her current English language skills were not in evidence.    [Back]

Note 3    D’s unchallenged evidence summarised in paragraph 34 of the FtT determination in A’s appeal. This evidence is corroborated by the Wikipedia entry for German Nationality Law, which was not cited in argument and whose contents were consistent with D’s reported evidence to the FtT. This entry reported that it has been a prime feature of the German Nationality Law since 2000 that adults and children are entitled to apply for German citizenship after they have been ordinarily resident in Germany for at least 8 years and that dual nationality is not permitted under German law. There was little evidence of A’s current financial circumstances but the court was informed that she was only able to be represented at the hearing by counsel instructed under Public Access funded by some of her friends and church congregation members.    [Back]

Note 4    SI 2006/1003.    [Back]

Note 5    It was not clear which two addresses were visited by Redbridge’s officer or officers.    [Back]

Note 6    She was detained under immigration detention from 23 December 2010 until 13 January 2011 before being released. It is not revealed what the basis was for this period of detention was.    [Back]

Note 7    [2010] EWCA Crim 1081, 14 May 2010.    [Back]

Note 8    To the UKBA’s investigating officer during her home visit on 14 August 2012.     [Back]

Note 9    [1980] 1 WLR 1366), CA(CD).    [Back]

Note 10    Presumably by the sentencing judge when adjourning the sentencing exercise in order to obtain a pre-sentence report.    [Back]

Note 11    (2004)/38/EC and SI2006/1003.    [Back]

Note 12    A decision-maker must take account of the different, and potentially wider, requirement in the CD that A must have been “legally” resident in the UK for a continuous period of five years. On the facts of A’s case, as determined by the FtT, even if A had failed to establish five years continuous residence in accordance with the EEA Regulations, she may well have established that she had been legally resident for that period.    [Back]

Note 13    [2012] EWCA Civ 1718, CA.    [Back]

Note 14    [2005] EWCA Civ 597, CA.    [Back]

Note 15    [2009] EWCA Civ 923, CA.    [Back]

Note 16    The judgment was quoting from the determination of the tribunal under appeal which in turn was quoting regulation 21(5) of the EEA Regulations.    [Back]

Note 17    See paragraph 36 above for the text of regulation 21(6).    [Back]

Note 18    [2006] UKAIT 00053.    [Back]

Note 19    Per Sullivan LJ.    [Back]

Note 20    [2011] 2 CMLR 11 at AG 95.    [Back]

Note 21    At AG 94.    [Back]

Note 22    At paragraph 50.    [Back]

Note 23    Three of the statutory grounds on which an appeal must be brought (section 84(1)(c), (d) and (e) of the Nationality, Immigration and Asylum Act 2002. The “very high” formula was identified in paragraph 35 of the judgment of the court in PR(Sri Lanka) [2011] EWCA Civ 988.    [Back]

Note 24    Regulations 6, 14(1) or 15.     [Back]

Note 25    If there was a suspicion that this support had been funded from the proceeds of crime, there was no evidence of her having been involved in any other criminal activity and the maximum sum that it was established that she had made from her criminal activity was £1,200 that she received by money transfer which, on her case, had been paid to her to cover air fares and travel expenses.    [Back]

Note 26    The basis upon which a EU citizen was entitled to reside in a member state in accordance with the CD.    [Back]

Note 27    CD Article 7(1)(b).    [Back]

Note 28    EEA Regulations, regulation 21(4)(b).    [Back]

Note 29    Every Child Matters – Change for Children (2009).    [Back]

Note 30    See the dicta of Ouseley J in Khan v SSHD [2011] EWHC 2763 (Admin) which stated that the other compelling reason with a high prospect of success should be capable of being set out succinctly and should be set out in the grounds.     [Back]

Note 31    With effect from 1 October 2012, the period has been reduced to 16 days from the date of dispatch of the upper tribunal decision (see RSC 54.7A).    [Back]

Note 32    Slightly amended to shorten and clarify the essential grounds being put forward.    [Back]

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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> A B C v Secretary of State for the Home Department [2013] EWHC 1272 (Admin) (22 May 2013) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2013/1272.html Cite as: [2013] EWHC 1272 (Admin)