Deportation of father-of-two convicted of drugs offences did not meet ‘high threshold’ for removal of EU national

The Inner House of the Court of Session allowed an appeal by Jakub Goralczyk against a determination of the Upper Tribunal, which had upheld a decision of the First-tier Tribunal to uphold the deportation order on “serious grounds of public policy”.

Deportation order

Lord Brodie, Lord Malcolm and Lord Glennie heard that the 36-year-old Polish citizen had been convicted of three offences while living in the UK.

In 2011 he was fined £200 and banned from driving for 18 months after being convicted of a contravention of section 5 of the Road Traffic Act 1988 and in 2015 he was sentenced to 14 months’ imprisonment after pleading guilty to two charges of being concerned in the supply of cannabis in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971; the second offence committed while he was on bail awaiting trial for the first offence.

On 12 October 2015, the respondent made a deportation order against the appellant, in terms of the Immigration (European Economic Area) Regulations 2006, requiring him to leave the UK and prohibiting his return.

The appellant, who at that time had been living in the UK for about nine years, appealed the respondent’s decision to the FTT, but his appeal was rejected.

The tribunal was told that the appellant and his Polish fiancée had two children together, both of whom were born and had lived all their lives in the UK.

‘Justified decision’

The FTT judge observed that as the appellant had been in the country for between five and ten years he could only be deported on serious grounds of public policy or public security, and he accepted that the impact on the appellant’s partner and children would be “hugely significant”.

But the FTT considered that, notwithstanding the weight of evidence about the appellant’s personal and family circumstances, the appellant’s offending was of the “gravest significance” and therefore the respondent’s decision was “justified” and not disproportionate.

The appellant appealed to the UT, but the UT judge held that the FTT had applied the correct test and that the decision should stand.

On appeal to the Court of Session, it was submitted that in terms of the 2006 regulations a decision to expel an EEA national who had resided in the UK for between five and ten years required to be based exclusively on his personal conduct, which must represent a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”.

Following his second conviction, the appellant was assessed by the criminal justice social work report as being at a “low risk” of re-offending and it was argued that the FTT judge’s (FTTJ) description of his offending as being of the “gravest significance” was a “mischaracterisation”.

The conclusion that the appellant’s circumstances met the criteria of the 2006 regulations was an “error of law”, it was submitted.

‘Error of law’

Allowing the appeal, the judges held that there was a “complete failure” on the part of the FFTJ to engage with the requirements of the 2006 regulations.

Delivering the opinion of the court, Lord Brodie said: “[T]he approach adopted by the FTTJ is one of balancing, on the one hand, the heinous nature of the appellant’s conduct, as against, on the other, the disruption to the lives of the appellant and members of his family consequent on the appellant’s deportation. That might meet the case of a ‘foreign criminal’ who is not an EEA national and is therefore liable to automatic deportation in terms of section 32 of the UK Borders Act 2007 (subject to Article 8 of the European Convention on Human Rights protection, as provided for by section 33(2)(a)). It does not begin to meet the present case. 

“As we have already indicated, what is under consideration is a decision by the state to abrogate the appellant’s EU treaty rights in relation to free movement of workers on the grounds of public policy. That is only lawful if the state demonstrates that the requirements of the 2006 Regulations are met. The starting point is the requirement of regulation 21(3) that a relevant decision may not be taken except on serious grounds of public policy, allied with the principle set out in regulation 21(5)(a) that the decision must comply with the principle of proportionality.

“This gives rise to a difficulty with the FTT’s decision; nowhere does the FTTJ expressly identify what is the objective of the decision to deport the appellant. The reader of the FTTJ’s decision is left to guess.

“[I]f the FTTJ thought that the fact of the appellant’s past offending indicated that there was a risk of the appellant reoffending, then, in addition to being satisfied that the decision to deport was based on serious grounds of public policy and respected the principle of proportionality, it was incumbent on the judge to consider whether the risk of reoffending was genuine, present and sufficiently serious and, further, that should the risk eventuate it would affect one of society’s fundamental interests.

“We see there to have been a complete failure on the part of the FTTJ to engage with the requirements of the 2006 Regulations. That is very clearly an error of law. The FTT’s errors were not corrected by the UT. We shall therefore set aside the decision of the UT in terms of section 14(2)(a) of the Tribunals, Courts and Enforcement Act 2007.”

‘Removal direction disproportionate’

The respondent had submitted that the court should remit to the FTT to allow it to reconsider the matter in the light of the court’s directions and possibly further evidence as to the circumstances of the appellant’s conviction, but the judges considered that the proceedings had going on for “long enough”.

Lord Brodie added: “The decision appealed against was made on 12 October 2015. Parties have had their opportunity to make their respective cases. Given that the facts are uncontroversial and straightforward and that this is not a matter calling for the exercise of particular expertise we shall remake the FTT’s decision in terms of section 14(2)(b)(ii).

“In our opinion the high threshold for the deportation of an EU national is not met in this case. The appellant’s conduct, as disclosed by his history of offending, is in no way to his credit but what the relevant provisions of the Regulations look to is likely future conduct.

“Past conduct has a bearing on that, but not just any risk will do. It must be such as to pose a genuine, present and sufficiently serious threat. That cannot be said to be the case here. The only available structured risk assessment indicates that the appellant presents a low risk of reoffending.

“That the regulation 21(5)(c) criterion is not met is sufficient for the purposes of our decision but in addition, in the circumstances of this case we do not see a decision to remove the appellant from the United Kingdom to be compliant with the principle of proportionality. We shall allow the appellant’s appeal from the respondent’s decision. The result is that the appellant is not subject to a deportation order.”