Secretary of State for the Home Department v Okafor [2024] EWCA Civ 23 (23 January 2024)
The Court of Appeal has held that UT Judge Grubb's decision to allow the appeal of Mr Okafor, a Nigerian citizen against the refusal of his leave to enter the UK under the EU Settlement Scheme, notwithstanding his previous conviction for serious drug offences and subsequent related disclosure failures when applying for leave to enter, disclosed no error of law that justified or permitted interference. The judge had considered the cumulative effect of all relevant matters and had not erred in concluding that the individual's overall conduct did not fall within the exception in R v Bouchereau (Case 30-77) [1978] QB 732 such as to justify his exclusion on the basis that it represented a "genuine, present and sufficiently serious threat affecting one of the fundamental interests of society" under regulation 27(5)(c) of the Immigration (European Economic Area) Regulations 2016. Moylan, Stuart-Smith and Snowden LJJ dismissed the SSHD's appeal and upheld UT Judge Grubb's decision to allow Mr Okafor's appeal against the cancellation and refusal of his leave to enter the UK. Mr Okafor was married to a Swedish national who had been granted indefinite leave to remain in the UK in 2019. He was granted entry clearance under the EUSS in July 2020. On his arrival in the UK in September 2020 with an EUSS family permit, he was refused admission on public policy grounds. His permit was revoked and his leave to enter cancelled under paragraph 321B of the Immigration Rules.
The basis for the decision was that Mr Okafor had been convicted in the US in 1994 of drug offences and sentenced to 350 months' imprisonment. He had served almost 26 years before being released in 2019 and was removed to Nigeria. Mr Okafor did not disclose his conviction or deportation when applying for the EUSS permit or in two earlier visit visa applications. His US conviction was for the offence of conspiracy to possess with intent to distribute heroin. He had been imprisoned since his arrest in December 1992 in relation to that offence prior to his removal. Mr Okafor appealed the SSHD's decision to refuse him admission to the FTT. In May 2020, FTTJ Mailer allowed his appeal. FTTJ Mailer was not satisfied that the decision-maker had established on a balance of probabilities that Mr Okafor conduct represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Mr Okafor exclusion from the UK could not, therefore, be justified under EU law. The SSHD appealed to the UT, which set aside the decision, finding that the FTT had failed to consider the Bouchereau exception. The UT subsequently remade the decision, allowing his appeal on the basis that his conduct did not fall within the Bouchereau exception. The UT subsequently remade the decision by allowing his appeal on the basis that his conduct did not fall within theexception which arises when an individual's conduct can be said to engender "deep public revulsion" and allows exclusion even without a propensity to re-offend.
Singh LJ explained in SSHD v Robinson [2018] EWCA Civ 85 that conduct which gives rise to "deep public revulsion" is likely to be in cases which are "extreme" and which involve the "most heinous crimes" and which are "especially horrifying" and "repugnant to the public". Singh LJ referred to cases where "a person has committed grave offences of sexual abuse or violence against young children".
The Court of Appeal
The SSHD contended that UT Judge Grubb had failed to consider the cumulative effect of Mr Okafor's behaviour and whether his criminal drug offences—considered together with the subsequent deception—fell within the scope of the Bouchereau exception.
In BF (Portugal) v SSHD [2009] EWCA Civ 923, the Court of Appeal had identified four stages to be followed in applying the EEA Regulations.
In light of BF (Portugal), UT Judge Grubb had to determine (i) the individual's relevant personal conduct, (ii) whether that conduct represented a genuine, present and sufficiently serious threat, (iii) whether that threat affected one of the fundamental interests of society and (iv) whether removal or exclusion would be disproportionate in all the circumstances. Stuart-Smith LJ said that UT Judge Grubb set out of the relevant issues and principles in his judgment provided a suitable working summary of the established principles that he had (and intended) to apply. Stuart-Smith LJ held that:
36. There is no doubt that the Bouchereau exception formed part of English law.
The court discussed and resolved the appeal in the following way. In the instant case, the question was whether UT Judge Grubb had erred materially in law in concluding that the Bouchereau exception did not apply. Notably, it was common ground that there may be cases where, on their particular facts, the impact of different aspects of a person's conduct could properly be aggregated when the SSHD or the Tribunal comes to assess whether that person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society under regulation 27(5)(c) of the EEA Regulations so as to trigger the application of the Bouchereau exception. Stuart-Smith LJ agreed and said that his agreement was on the basis that the answer to the question of possible aggregation will be fact sensitive in every case. Stuart-Smith LJ did not consider it necessary to say any more, whether by way of examples or otherwise, since resolution of the question will always depend upon the facts of the given case. As he explained:
39. I am, however, quite unable to accept that the Judge in the present case impermissibly failed to have regard to the cumulative effect of the different aspects of Mr Okafor's conduct. To the contrary, a fair reading of the judgment leads to the conclusion that the Judge not only had the correct principles in mind, identified the central issue and asked himself the right question and but also that he applied the principles correctly.
40. The Judge's appreciation that he was to consider Mr Okafor's conduct as a whole permeates the judgment. In formulating the issue at [14] of the judgment, he framed it as being whether Mr Okafor's conduct (by which he expressly meant both the conduct in relation to his criminal conviction and his subsequent failure to disclose his convictions) justified his exclusion. There is nothing to suggest that by "both … and" he meant "either … or". Similarly, when formulating the central issue at [21] of the judgment, he addressed Mr Okafor's conduct as a whole and the issue as being whether his conduct "represent[ed] a 'genuine, present and sufficiently serious threat' to one or more of those fundamental interests." Once again, there is no suggestion that the question was only to be asked separately in respect of different instances of conduct viewed exclusively on their own.
It was plain that the Judge considered it necessary to conduct an overall assessment taking into account all relevant conduct. He correctly directed himself as to the four stage test in BF (Portugal). His appreciation that he was to consider Mr Okafor's conduct as a whole permeated the judgment. The Judge framed the issue as being whether his overall conduct justified his exclusion and while discussing the competing submissions, UT Judge Grubb analysed the materials before him and resolved the issue he had to decide, the Judge once more indicated his approach. The court noted that crucially, the Judge made clear that, on his approach, application of the Bouchereau exception depended on Mr Okafar's role, the sentence imposed and "his subsequent conduct". The Judge had been entitled to find that the deceptive conduct came "nowhere near" being an exceptional or unusual case where "deep public revulsion" was engendered. His judgment did not disclose any error of law that would justify or permit the Court of Appeal to interfere. Stuart-Smith LJ held that:
47. Paragraphs [58] to [61] must be read in the context provided by the rest of the judgment. That context, which I have attempted to summarise above, shows that the Judge had the relevant principles, issues and questions in mind at all material times and considered that the deceptive conduct added nothing of substance to the overall assessment he was obliged to undertake. His justifiable use of the dismissive phrase "nowhere near" indicates that the deceptive conduct was not such as to affect the balance as it appeared on consideration of the much more important feature, namely the criminal offending. That led him to his overall conclusion in [61]: see above. That does not indicate that he was failing to consider the cumulative effect of Mr Okafor's behaviour. It merely meant that he concluded that the additive effect of the deceptive conduct, in the circumstances of this case, did not affect the overall balance.
48. I accept that it could have been clearer if he had inserted a single concluding sentence expressly stating that he had reached his overall conclusion taking all relevant matters into account "both singly and cumulatively" (or some such phrase); or if he had reversed the order of [59] and [60]. However, it would be perverse to hold that, having consistently and expressly recognised the correct principles and test that he had to apply, his judgment should be struck down for what, in a legal sense, was the want of a horseshoe nail.
Moylan and Snowden LJJ agreed with Stuart-Smith LJ and UT Judge Grubb's reasoning was clearly correct.
Comment
Mr Okafor had rehabilitated himself and FTTJ Mailer had been alive to this aspect of his case in light of the evidence as a whole. He found that it was unlikely that he would go on to re-offend and had no intention or desire to re-engage in criminal conduct. The evidence to which he was referring included evidence of good behaviour while in custody and the obtaining of qualifications and employment while in custody, including a BSc in Business Law and becoming a Quality Assurance Clerk. Now that his lengthy ordeal is over, he can enjoy his life with his family and put his credentials to work and earn money lawfully: a happy ending for him.