Neutral Citation No. [2011] NICA 72     	Ref:     	MOR8356	
			
Judgment: approved by the Court for handing down	Delivered:	27/10/2011	
(subject to editorial corrections)*			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

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Flaneurs’ (Siegnerella Elaine and Siegnette Elaine) Application [2011] NICA 72

IN THE MATTER OF APPLICATIONS BY SIEGNERELLA ELAINE FLANEUR AND SIEGNETTE ELAINE FLANEUR FOR JUDICIAL REVIEW

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Before: Morgan LCJ, Higgins LJ and Sir John Sheil

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MORGAN LCJ 

[1] 	The appellants’ appeal is against the judgment of Treacy J delivered on 24 September 2010 dismissing their applications for judicial review. They are Dutch nationals who are sisters. They seek to challenge deportation decisions made against them on the basis that the decisions contravene article 18 of the EC Treaty, now the Treaty on the Functioning of the European Union renamed by the Treaty of Lisbon and renumbered as article 21, guaranteeing them freedom to travel within the EU, Council Directive 2004/38/EC and the Immigration (EEA) Regulations 2006. Mr Lewis QC and Ms Connolly appeared on behalf of the appellant. Mr McGleenan appeared for the respondent in relation to the appeal by Siegnerella Flaneur and Mr Dunlop appeared for the respondent in relation to Siegnette Flaneur’s appeal. We are grateful to all counsel for their helpful written and oral submissions.

Background

[2]	 On 12 April 2008 the appellants were apprehended at Belfast International Airport in connection with the attempted importation into the United Kingdom of 136g of cocaine. They pleaded guilty to the importation or attempted importation of the said quantity of drugs at Antrim Crown Court on 17 November 2008. Judge Smyth QC sentenced Siegnette to 3 years imprisonment. Siegnerella was sentenced to 2½ years imprisonment. The distinction was made because it appeared that Siegnette had induced Siegnerella to be come involved in the enterprise.

[3] 	The pre-sentence report in respect of Siegnerella stated that she had no previous convictions in Northern Ireland. She, like her sister, had done well at school and gone on to study social work at college. She fell pregnant at 18 and left her course. She had no previous involvement with drugs. After the birth of her child she attempted to return to education and worked part time but found it difficult to cope financially. She was unemployed without any income at the time of the offence and was facing the possibility of eviction with her mother from the family home. The probation officer considered that her experience of the criminal justice system and her separation from her son had had a salutary effect upon her. The offence was committed for financial gain but she had been naïve in not recognising the consequences of her actions. She was considered to pose a low risk of re-offending and she did not pose any risk of harm to others.

[4] 	The pre-sentence report in respect of Siegnette recorded that she was a student at a college of higher education for 2 years studying interior design at the time of her arrest. She did not live with her mother but stated that she had been encouraged by her boyfriend to import drugs as her family was in significant debt. In light of the family’s financial position she felt that she had no other option even though she appreciated the risks. She had no previous convictions. The probation officer considered that her involvement in this offence had had a salutary effect on her. Her only previous involvement with drugs was some recreational cannabis use. She was employed part time at the time of her arrest. She was considered to pose a low risk of re-offending. She presented as an intelligent woman and was assessed by the probation officer as not presenting any direct risk of harm to others.

[5] 	In his sentencing remarks Judge Smyth QC stated that importation of drugs was a serious offence, particularly so since the method of entry was through Northern Ireland’s only international airport. He commented on the fact that this was a particular problem in Northern Ireland and stated that there was a need to pass deterrent sentences to discourage others. He noted that the appellants had pleaded guilty and had been helpful to police, although one of them had not been so at the point of apprehension. The offence involved a Class A drug although its value was not very considerable. The elder sister, Siegnette, was acknowledged to have persuaded Siegnerella to join in the offence but that was the only reason to differentiate between them. The drugs were intended for someone else and the offence had been carried out for financial reward. The learned judge noted that they were unlikely to reoffend because of their clear records, their assistance to the police and the fact that they had pleaded to the charges.

[6] 	Both appellants were advised by the UK Border Agency prior to the completion of their sentences that the Secretary of State was minded to make deportation orders in respect of them on public policy grounds in light of their convictions. The National Offenders Management Services (NOMS) carried out a risk assessment in respect of each of them and concluded that each posed a low risk of harm to the public and a low risk of re-offending. The risk related to continued contact with drug dealers.

[7] 	The Secretary of State made a deportation order in respect of Siegnerella on 23 June 2009 and the reasons for the decision are contained in a letter of that date. The legal framework set by the Immigration (European Economic Area) Regulations 2006 is set out in the decision letter and there is no issue with the legal basis for the test that was applied. It was noted that she had been convicted of an extremely serious offence and that the nature of the offence was such as to engage the Secretary of State’s guidelines on public policy and public security. This is a reference to the fact that where a sentence of 2 years imprisonment or more is passed the case is considered for deportation on public policy or security grounds.

[8] 	The letter continued by noting the NOMS assessment on risk but noted that the harm from the importation of drugs on the public was profound. It was concluded that the offence was so serious that the applicant represented a genuine, present and sufficiently serious threat to the public to in principle justify deportation on public policy grounds. The risk of re-offending is then considered. 

“In completing your NOMS 1 assessment the offender manager found that you posed a low risk of re-offending. In reaching this conclusion your offender manager has taken into consideration those factors which originally led to your offending behaviour and whether those same factors continue to exist. However the overall score given on your report is in conflict with the written comments of the offender manager in particular the following issues have been highlighted within the NOMS 1 report. You stated that you lived in Amsterdam with your mother, siblings and son. You left school at an early stage as you became pregnant at the age of 18 years old and were unemployed. You further stated that your family was in substantial financial debt which led you to committing this offence for money. Whilst the risk of you re-offending is viewed as low the serious harm which would be caused as a result is such that it is not considered reasonable to leave the public vulnerable to the effects of your re-offending. 

It is considered that in view of your circumstances, unemployment, lack of education, parental responsibilities, debt should you find yourself in similar circumstances you would choose to re-offend. It is concluded that you committed the crime for financial gain and that you would re-offend for the same reason. ”

[9] 	There are three criticisms which the appellant makes of this part of the letter. First it is by no means clear why the overall score in the NOMS assessment conflicts with the comments of the offender manager. The score recorded is 13 where the low risk band runs from 0-15. Secondly the reference to lack of education is in conflict with the assessment of the pre-sentence report which states that Seignerella did well at school. Thirdly the reference to her being unemployed did not appear to take into account the fact that she had been previously employed.

[10] 	The next portion of the letter sets out a passage from the sentencing remarks of the learned trial judge describing the seriousness of the offence and the need for a deterrent sentence. There is no criticism of these remarks but the appellant points out that there is omitted the passage immediately following that where the learned trial judge gives his reasons for concluding that the appellants are unlikely to re-offend. The letter concludes that the appellant has demonstrated a propensity to re-offend and represents a genuine, present and sufficiently serious threat to the public to justify her deportation. 

[11] 	A deportation order in respect of Siegnette was made on 3 August 2009. Her decision letter was broadly in the same terms as her sister. It recorded the legal basis for the decision and the same issues about the seriousness of the offending and how it gave rise to sufficient reasons to deport on public policy grounds. It then went on to look at the appellant’s circumstances to examine the propensity to re-offend. 

“In completing your NOMS 1 assessment the offender manager found that you posed a low risk of re-offending. In reaching this conclusion your offender manager has taken into consideration those factors which originally led to your offending behaviour and whether those same factors continue to exist. Whilst the risk of you re-offending is viewed as low the serious harm which would be caused as a result is such that it is not considered reasonable to leave the public vulnerable to the effects of your re-offending.

It is considered that in view of your circumstances, unemployment, lack of education, should you find yourself in similar circumstances you would choose to re-offend. It is concluded that you committed the crime for financial gain and that you would re-offend for the same reason. ”

[12] 	There are two specific criticisms that are made of this portion of the decision letter. First the reference to lack of education appears to ignore the fact that the appellant was a student at a further education college at the time of her arrest and had done well in the education system. Secondly although it is recorded that she was unemployed she was actually working part time at the time of her arrest. The letter went on to set out the passage in the learned trial judge’s remarks about the seriousness of the offence but did not refer to his assessment that the appellant posed a low risk of re-offending. The letter concluded that she committed the crime for financial gain and would re-offend for the same reason.

Legal Framework

[13] 	The appellants were content that the learned trial judge had identified the correct legal framework. For ease of reference we set it out again here.

“Legal Framework

EU Law

[13]	Article 17 of the EC Treaty provides that every person holding the nationality of a Member State shall be a citizen of the European Union.  Article 18(1) of the EC Treaty provides that:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member State, subject to the limitations laid down in this Treaty and by the measures adopted to give it effect.”

[14]	Specific provisions are also contained in the EC Treaty dealing with free movement of workers, freedom to provide services and receive services and freedom of establishment. Those freedoms may also be subject to restrictions.

[15]	The relevant measures governing restrictions on freedom of movement for EU nationals are now contained in Directive 2004/38/EC.  Articles 27.1 and 27.2 of the Directive provide:

“1. Subject to the provisions of this Chapter, Member States may restrict the freedom of and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends. 

2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

The personal conduct of the individual must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.”

[16]	That provision is implemented by Regulation 21(5) of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”) which provides:

“(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.”

[17]	The case law of the ECJ established the following limitations on the ability of Member States to deport persons who have committed a criminal offence. These principles are reflected in the terms of the Regulations set out above. They can be summarised as follows:  

(i)	Derogations from free movement must be interpreted restrictively, particularly in the case of citizens of the EU.

(ii)	Such measures must be based exclusively on the personal conduct of the person concerned. Previous convictions cannot in themselves justify deportation.

(iii)	There must be a genuine, present and sufficiently serious threat to the requirements of public policy.

(iv)	Such a (present) threat exists only where the personal conduct “indicates a specific risk of new and serious prejudice to the requirements of public policy” which must, as a general rule, be satisfied at the time of the expulsion.  

(v)	EU law prevents the deportation of an EU citizen for general preventative reasons aimed at deterring other foreign nationals. 

[18]	In Bouchereau [1977] ECR 1999 the European Court of Justice said:

“27.	The terms of Art 3(2) of the Directive, which states that ‘previous criminal convictions shall not in themselves constitute grounds for the taking of such measures’ must be understood as requiring the national authorities to carry out a specific appraisal from the point of view of the interests inherent in protecting the requirements of public policy, which does not necessarily coincide with the appraisals which formed the basis of the criminal conviction.

28. 	The existence of a previous criminal conviction can, therefore, only be taken into account insofar as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.

29. 	Although, in general, a finding that such a threat exists implies the existence in the individual concerned of a propensity to act in the same way in the future, it is possible that past conduct alone may constitute such a threat to the requirements of public policy.

30.	It is for the authorities and, where appropriate, for the national Courts, to consider that question in each individual case in the light of the particular legal position of persons subject to Community law and with the fundamental nature of the principle of the free movement of persons.”

[19]	In Orfanopoulous [2004] ECR 1-5257 the ECJ stated:

“64. ... derogations from that principle [i.e. freedom of movement for workers] must be interpreted strictly.

65. ... A particularly restrictive interpretation of the derogations from that freedom is required by virtue of a person’s status as a citizen of the Union. As the Court has held, that status is destined to be the fundamental status of nationals of the Member States.

66.	Concerning measures of public policy ..., in order to be justified, they must be based exclusively on the personal conduct of the individual concerned. ... Previous criminal convictions cannot in themselves justify those measures. As the Court has held, particularly in Bouchereau, the concept of public policy pre-supposes the existence, in addition to the perturbation of the social order which any infringement of the law involves, of a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society. 

67. 	While it is true that a Member State may consider that the use of drugs constitutes a danger for society such as to justify special measures against foreign nationals who contravene its laws on drugs, the public policy exception must, however, be interpreted restrictively, with the result that the existence of a previous criminal conviction can justify an expulsion only insofar as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat to the requirements of public policy.

68.	... Community law precludes the deportation of a national of a Member State based on reasons of a general preventative nature, that is one which has been ordered for the purpose of deterring other aliens, in particular, where such measure automatically follows a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that person represents for the requirements of public policy. 

...

79.	... And thus the requirement of the existence of a present threat must, as a general rule, be satisfied at the time of the expulsion.”

The issues in the appeal

[20] 	It is argued on behalf of the appellants that the decisions in Orfanopoulos and Nazli establish two tests which should have been applied by the decision maker in determining whether deportations were justified. Those were whether the conduct gave rise to a present threat and whether it indicated a specific risk of new and serious prejudice. It was submitted that if those tests had been applied there was no evidential basis for concluding that the appellants posed a present threat of that kind. The learned trial judge in his sentencing remarks and the probation service both expressed the view that both appellants presented a low risk of re-offending. In addition the NOMS assessment carried out prior to release indicated there was a low risk of reoffending. The decision letters demonstrated, it was contended, that the decisions of June and August 2009 were based on the seriousness of the offences committed by the appellants in April 2008 not the risk they posed on release.

[21]	For the respondent it was submitted that the appellant had overstated the effect of Orfanopoulos. The ruling of the court concerned national legislation mandating automatic expulsion following certain convictions. The ECJ held that national legislation that resulted in automatic expulsion was precluded but an expulsion based on an appraisal of the specific facts of the case would not, however, offend EC law. Nazli similarly concerned the expulsion of a Turkish worker on the basis of legislation which permitted expulsion on general preventative grounds. Neither established tests which ought to have been applied in this case.

[22] 	In the alternative it was submitted that the Secretary of State applied the correct legislative test. The state has a margin of appreciation in performing the role of decision maker. Bouchereau requires the decision maker to take into account the circumstances when the offence was committed. Applying Orfanopoulos, the respondent was entitled to find the circumstances which gave rise to the conviction were evidence of personal conduct giving rise to a present threat. The supply of illegal drugs into the UK is a risk to public security. Although the NOMS and probation assessments did not disclose a high risk of reoffending, the requirements of public policy and public security are different appraisals from the discrete tests applied by the probation officer and the NOMS assessor. Siegnerella’s personal circumstances were difficult before the offence was committed and this position had not changed when the deportation decisions were taken. At the time of the offence Siegnette was a student. She and her family were living in poverty and the offence was committed for financial reasons. At the time of the decision she had lost her accommodation in Holland and her personal circumstances had therefore not improved.

Discussion

[23] 	I accept that the legal framework is as set out by the learned trial judge. Although Bouchereau, Nazli and Orfanopoulos were all cases concerned with automatic expulsion consequent upon conviction the steady theme of the decisions is the need for a present threat evidenced by personal conduct of new and serious prejudice. The Citizen’s Directive and the implementing legislation carry this theme through. The tests set out in the legislation reflect the emerging case-law and in my view the restrictive approach to the interpretation of the exceptions to the exercise of community rights supports the conclusion that the tests should be approached as the appellants submitted.

[24] 	The appellants argued that in light of the assessments made by the learned trial judge, the probation service and NOMS that there was no evidential base for the conclusion that either appellant represented a genuine, present and sufficiently serious threat to the public to justify deportation, it is for the Secretary of State to reach his own conclusion on this issue while taking into account the opinions of the other statutory bodies (see YK (Bulgaria) v Secretary of State for the Home Department [2009] EWCA Civ 530). In this case the decision letters make it plain that this crime was motivated by the financial circumstances of the appellants. Each of them appreciated the risks they were taking. There was no dispute that if re-offending of this type occurred substantial new prejudice to the public would arise. There was nothing to indicate any improvement in the financial position of the family at the time of the decisions to deport and if anything it had worsened. The assessments by the learned trial judge, the probation service and NOMS all supported the view that this was financially motivated crime in full knowledge of the consequences if caught. In my view that together with the consequences of re-offending provided material which was relevant to the issue of whether there was a genuine, present and sufficiently serious threat.

[25]	In order, however, to adhere to the strict approach to the exceptions to the exercise of the rights protected by the Citizen’s Directive to which I have referred above the court must recognise the executive’s role in the determination of the public policy considerations but is required to exercise strict scrutiny of the reasons for any restriction of the rights based on those policies. The decision letters acknowledged the assessment by the court, the pre-sentence report and NOMS that there was a low risk of re-offending in this case. Both NOMS and the author of the pre-sentence report further concluded that there was a low risk of harm to the public. There was no engagement within the decision letters with the reasons for those conclusions set out in the pre-sentence reports and the decision letters contain no satisfactory explanation for departing from the NOMS assessment. Where the court is exercising strict scrutiny of an important right to citizenship the failure to explain how these assessments by agencies of the state charged with the responsibility of assessing personal risk were taken into account leaves the court without the information required to review the decision. On that basis alone, therefore, I am not satisfied that the decision has been based exclusively on the personal conduct of the appellants rather than the seriousness of the offence. 

[26] 	Secondly, it is clear from the matters set out at paragraphs 9 and 12 above that there were material factual errors in the assessment by the Secretary of State. These were two women who had done well within the education system and who had succeeded in obtaining employment at various times. These were matters that were potentially material to the assessment of risk.  The pre-sentence reports stated that the effect of imprisonment had been salutary on each applicant. Given their education and work background that conclusion needed to be assessed. The decision letter proceeded on a false basis so that the assessment did not take into account the matters that it should.

[27]	In my view that is sufficient for the appellants to succeed in this appeal. There was also significant other material suggesting that the decision maker may only have taken into account the seriousness of the offence in making this decision. That appears from paragraph 9 of the affidavit of Mr Srikantharajah sworn on 22 September 2009 in Seignerella’s case and a letter written by him on 5 October 2009 in Seignette’s case where he stated that her offence was so serious that she represented a genuine, present and sufficiently serious threat to the public to in principle justify her deportation. On the most favourable view for the respondent the reference to principle may simply indicate that the public policy exception has been engaged by the offence and the next stage is the assessment of personal conduct and risk. In a case where the court has to exercise strict scrutiny the respondent may not be entitled to a favourable view. In any event it is not necessary for me to determine that issue.

[28] 	For the reasons set out I consider that this appeal should be allowed and the decisions quashed.