B v Secretary of State for the Home Department [2000] EWCA Civ 158

An Italian national who had lived in the UK since age 7 faced deportation following convictions for sexual abuse of his daughter. The Court of Appeal held that deportation was disproportionate given his lifelong residence in the UK, despite the serious nature of his offences, applying EU free movement and ECHR Article 8 principles.

Facts

The appellant, an Italian citizen born in Sicily in 1955, moved to the United Kingdom with his parents at age 7. In 1994, he was convicted of multiple counts of gross indecency and indecent assault upon his daughter, committed over a period of six years beginning when she was 12 years old. He received a sentence of 5 years’ imprisonment. Following his release, the Home Secretary decided to deport him on grounds that his deportation would be conducive to the public good under section 3(5) of the Immigration Act 1971. The appellant appealed to the Immigration Appeal Tribunal (IAT), which dismissed his appeal.

Personal Circumstances

The appellant had lived in the UK for 36 years, had visited Sicily only twice in twenty years, and had limited ties to Italy. His marriage had ended in divorce, and his former wife and children no longer had contact with him. His elderly parents resided in the UK along with his brothers.

Issues

The central legal issues were:

• Whether the deportation of an EU national for serious criminal offending was proportionate under EU law principles of free movement.
• Whether the deportation violated Article 8 of the European Convention on Human Rights (right to respect for private and family life).
• The appropriate standard of review for proportionality as a question of law on appeal.

Judgment

EU Law and Proportionality

Sedley LJ explained that as a Community national, the appellant was entitled to freedom of movement under Article 48 (now 39) of the Treaty of Rome, subject to limitations on grounds of public policy. The court referred to R v Bouchereau [1978] QB 732, where the European Court of Justice held:

“previous criminal convictions are relevant only in so far as the circumstances which gave rise to them are evidence of personal conduct constituting a present threat to the requirements of public policy.”

The court emphasised that deportation must be proportionate, corresponding to a pressing social need and going no further than strictly necessary.

Article 8 ECHR

The court held that Article 8 rights were engaged through EU law and must be considered separately from EU free movement principles. Sedley LJ noted that the IAT erred in treating Article 8 as superfluous once EU law had been considered.

Proportionality Assessment

Sedley LJ concluded:

“What in my judgment renders deportation a disproportionate response to this appellant’s offending, serious as it is, and to his propensity to offend such as it may now be, is the fact that it will take him from the country in which he has grown up, has lived his whole adult life and has such social relationships as he possesses.”

He further observed:

“What is proposed in the present case, although in law deportation, is in substance more akin to exile. As such it is in my judgment so severe as to be disproportionate to this man’s particular offending, serious as it was, and to his propensities.”

Standard of Review

Simon Brown LJ confirmed that proportionality involves a question of law requiring the court to form its own view rather than applying the conventional Wednesbury approach:

“It would not be proper for us to say that we disagree with the IAT’s conclusion on proportionality but that, since there is clearly room for two views and their view cannot be stigmatised as irrational, we cannot interfere.”

Implications

This case established important principles regarding:

• The application of EU law proportionality principles to deportation of EU nationals with long residence in the UK.
• The requirement for courts to conduct independent assessment of proportionality rather than merely reviewing for rationality.
• The significance of length of residence and ties to the UK in proportionality assessments.
• The interrelationship between EU free movement rights and Article 8 ECHR in deportation cases.

The decision anticipated the enhanced scrutiny of human rights considerations that would follow the coming into force of the Human Rights Act 1998 later that year.

Verdict: Appeal allowed. The Court of Appeal held that deportation was a disproportionate response to the appellant’s offending given his lifelong residence in the United Kingdom since the age of 7.

Source: B v Secretary of State for the Home Department [2000] EWCA Civ 158