Immigration Solicitors

By Yanks Darboe

I had been inspired by QC Ian MacDonald’s take on this same issue in his book: MacDonald’s Immigration Law & Practice; the First Supplement to the Seventh Edition. I commend the learned QC for opening up a debate on this issue and whilst the learned QC had broadened his question for a rethink on the whole of the UK deportation law; I have limited my argument to the deportation of EU nationals.

Freedom of movement of EU nationals within the Union has been and continues to be the most important pillar of the European structure. It has been recognised since the earliest European Treaty of Paris in 1951; which referred to it as the free movement of workers of the European Coal and Steel Community industries. This later changed to free movement of workers within the European Economic Community (EEC) by the Treaty of Rome in 1957. This is now transformed into the right to free movement and residence within the EEA, by the EC Directive 2004/38 which has been transposed into the UK domestic law by the Immigration (EEA) Regulations 2006.

Interestingly, though the 2004 Directive confirmed the rights of an EEA nationals freedom for movement and residence within the EEA; it further made restriction to that freedom with the provision that a Union national can be removed from a member state and be denied a right to exercise his freedom of movement and residence in that that member on the grounds of public safety, public security, etc. Even though these might not be crimes unique to only the union nationals exercising their treaty rights in that member states; as some of the nationals of that particular member state commit similar crimes; but the Union national’s committing of that crime in that member state amounts to a threat to that member state’s public safety, security and the rest of the safety check list.

QC MacDonald attacked this public safety justification by explaining that: “If the reason for deportation at the end of the sentence is the protection of the public, this can only mean the British public. The International drug dealer, the terrorist and the psychopath will each be released to another country where he or she will be free to engage in crime. This will be particularly true of a sex offender being removed to countries where there are no sex offenders’ registers. Deportation then risks becoming the means of exporting and circulating of crime – ‘not in my back yard – you can have them’”.

To depict that scenario will be to take an example of a case in where Britain deports an EEA national convicted of sex offending to Holland on the pretext of protecting the British public. Then that convict exercises his treaty right of free movement to Belgium; where some members of the British public decide to exercise their right of free movement by moving there. Then the question that begs asking is whether the deportation of that EEA national had protected that portion of the British public?

In fact; the prohibition of deportation of EU nationals, who achieved permanent right of residence in a member state had been recommended by the EU Commission in drafting Directive 2004/38/EC, as stated by the Court of Appeal in the Case of Bulale v Secretary of State (2008). However, “the Council expressed strong opposition to that position, and by a process that is unclear that opposition came to be expressed in the article 28 of the Directive, which was later transposed into the UK law as regulation 21 of Immigration (EEA) Regulations 2006”.

The Court concluded that the only indication of how that position was achieved happens to be in the report of the Economic and Social Committee in April 2002 that had suggested that expulsion could be based on the past commission of "crimes such as terrorism, trafficking in weapons or drugs and crimes against the person."

However, can you imagine sending such criminals to wander in Europe; in member states where the security forces have no record of their past criminal activity? It indeed makes deportation sounds like exportation of crime within Europe rather than the prevention of crime.