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Public law and Regulation

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03 JUL 2013

A B C v Secretary of State for the Home Department [2013] EWHC 1272 (Admin); (2013) PLLR 078

Immigration - Deportation - Europe - Public Policy

The Claimant had a very strong prospect of successfully appealing against the deportation order made against her. The First-Tier Tribunal had failed to take into consideration a number of relevant factors, including a proper assessment of whether deportation was necessary on grounds of serious public policy or security. 

22 May 2013

Administrative Court

HHJ Thornton

(1)        The first Claimant, A, a former national of Ghana who had been in the UK since around 2003 sought permission to bring a claim for judicial review. Prior to entry to the UK, the Claimant had lived in Germany and acquired German citizenship. The Claimant had three children living with her, B and C, her children, and G, her grandchild.

(2)        The Claimant and B and C were the subject of a deportation order made under the Immigration (European Economic Area) Regulations 2006 (‘EEA Regulations'), which are only applicable to citizens of EEA States. The basis of the decision to deport the Claimant was her conviction and sentence on four counts of serious offences relating to her assisting two Ghanaian minors of entering the UK using false German identification documents.

(3)        The decisions under challenge were:

(a)        The decision dated 22 December 2010 to make a deportation order against the Claimant.

(b)        The decision of the Upper Tribunal dated 12 October 2011 refusing the Claimant's application for permission to appeal the First Tier Tribunal's decision dated 4 July 2011.

(c)        The deportation orders dated 31 October 2011 made against the Claimant, B and C.

(d)        The decision dated 7 February 2012 refusing the Claimant's application to revoke the deportation order, to certify that her representations had already been considered by the UKBA and First Tier Tribunal so that there was no right of appeal against the refusal, and the decision that any formal request to revoke the deportation order on the basis of a material change of circumstance would have to be made from Germany.

(e)        The decision dated 16 January 2013 and the decision to detain the Claimant pending her removal.

(4)        In a decision dated 7 February 2011, the Defendant revoked the deportation orders against the Claimant's children. They maintained their application for judicial review on the basis that the deportation orders had not been made in accordance with the EEA Regulations, and also on human rights grounds.

(5)        The remaining grounds of challenge by the time of the judicial review hearing were:

(i)         Each decision had wrongly been based on the Claimant entering the UK in August 2004, when she had entered the UK in June 2003.

(ii)        Each decision had erroneously been based on her not being a resident in the UK, when in fact, she had been a permanent resident since June 2008.

(iii)       The correct test had not been applied to each decision, namely that the Claimant could only be deported on serious grounds of public policy.

(iv)       The decision makers had failed to obtain and therefore consider up to date risk assessments of the Claimant.

(v)        Each decision should have taken into account the best interests of the Claimant's children and grandchild.

(vi)       There had been a failure to give primary consideration to the best interests of the Claimant's children.

(vii)      Each decision failed to consider the EEC dimension required by the Citizens' Directive and the EEA Regulations.

(viii)     The decisions failed to protect the article 8 rights of the Claimant, her children and her grandchild.

(ix)       There had been a failure to consider the proportionality of deporting the Claimant.

(6)        HELD: Under Article 28 of the Citizens Directive (‘CD'), if the citizen has lived in the host state for the previous five years, expulsion must only be on ‘serious grounds of public policy or public security' (CD Article 28.3 and EEA Regulations, regulation 21(3)). Clear evidence had been provided that the Claimant had established residence in the UK before December 2003. Bearing this in mind, the Court found it difficult to understand how the Claimant could be said not to be entitled to be admitted on the basis of public policy.

(7)        The First Tier Tribunal had wrongly concluded that the Claimant was not self-sufficient, despite there being evidence that she had been self-sufficient for 8 years before the tribunal hearing. The First Tier decision had also failed to consider that the Claimant had been convicted on the incorrect basis that she was Ghanaian rather than German.

(8)        The Claimant had established a prima facie case for her being resident within the EEA Regulations. By the time she had been remanded in custody, the Claimant had been resident in the UK for at least 6 years. The Court found that the First Tier Tribunal should therefore have treated the Claimant and her children as permanently resident in the UK.

(9)        The Defendant had failed to obtain an up-to-date probation report and risk of reoffending assessment, and failed to consider the views of the Claimant's children. The deportation being on the basis of public policy grounds was not borne out due to a lack of evidence in the form of risk assessments.

(10)     The Court considered that an appeal would undoubtedly have a strong prospect of success due to the failure of the First Tier Tribunal to take into account many relevant factors. Permission for judicial review was thus granted.

Permission granted.

Key paragraphs

[38] - No challenge December 2010.

[39] - First Tier Tribunal decision.

[40] - Wrong nationality.

[43] - Evidence residence.

[46] - Self-sufficient.

[54] - Permanent resident.

[58] - Assessment.

[60] - Interests of children.

[64] - Factors not considered.

[66] - Public policy.

[73] - Appeal strong prospect success.

[79] - Conclusion.

[79] - Permission granted. 

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