West Law Report

Court’s power to pursue new point on appeal

Posted in Times Law Report by mrkooenglish on August 1, 2008

From The TimesJuly 25, 2008

Court’s power to pursue new point on appeal
Court of Appeal
Published July 25, 2008
Bulale v Secretary of State for the Home Department
Before Lord Justice Waller, Lord Justice Buxton and Lady Justice Smith
Judgment July 11, 2008

The Court of Appeal did have jurisdiction in rare cases to pursue of its own motion a point of general importance not raised below in order to ensure the state’s compliance with its international obligations.

The Court of Appeal so stated when dismissing the appeal of Hussein Bulale against Senior Judge P. R. Lane who, on July 12, 2007, upheld a decision of an Asylum and Immigration Tribunal, which, on February 2, 2007, upheld the decision of the Secretary of State for the Home Department to deport him on the ground of public policy, namely his propensity to commit criminal offences.

Miss Adeyinka Adedeji, acting pro bono, at the invitation of the Citizens Advice Bureau, Royal Courts of Justice, for Mr Bulale; Miss Samantha Broadfoot for the Home Secretary; neither counsel appeared below.

LORD JUSTICE BUXTON said that the Immigration (European Economic Area) Regulations SI 2006 No 1003) transposed into UK domestic law the requirements of the Citizens Directive 2004/38/EEC (OJ June 29, 2004 L229/35).

They applied to any national of the European Economic Area who had been admitted to or had a right to reside in the UK. A person could be expelled only if there were serious grounds of public policy (regulation 21(2)), threatening one of the fundamental interests of society (regulation 21(5)(c)) and the expulsion was proportionate (regulation 21(6)).

Protecting members of society from violent crime was clearly a fundamental interest of that society. The claimant, by his propensity to commit robbery, threatened that fundamental interest.

The question whether a propensity to commit robberies constituted, in terms of the Directive, a sufficiently serious threat to society to justify his expulsion was of general importance.

The Home Secretary noted that the issue had not been raised before the tribunal, which could not have erred in law in not addressing it. In the present case, she submitted, the tribunal had jurisdiction to consider only points addressed in the order for reconsideration or those which were obvious in the sense set out in R v Secretary of State for the Home Department, Ex parte Robinson ([1998] QB 929); accordingly, the Court of Appeal in turn had no jurisdiction to consider the point on appeal.

His Lordship concluded that the Court of Appeal did have jurisdiction to consider the issue, but would emphasise the importance of the Robinson principles and the importance of departing from them only in very particular circumstances.

The observation in Robinson that as organs of the state the appellate authorities were bound to exercise their powers to ensure the state’s compliance with its international obligations, was directed at the High Court but must apply equally to the Court of Appeal.

Accordingly, whether or not the point was obvious, once it had occurred to the court it must be open to the court to pursue it.

Their Lordships could not find, and had not been shown, any direct guidance on the question of what sufficed to make threatened future criminal conduct “serious” in the sense of the 2006 Regulations and the Directive.

The first tribunal concluded that looking at the totality of the evidence the claimant represented a genuine and sufficiently serious risk to the public. There were serious grounds of public policy for deporting him. It was entitled to take that view.

The thrust of the 2004 Directive seemed to have been that it should be difficult to expel a European citizen on the basis of crimes of dishonesty, but that violence was a different matter. As to the necessary level of violence, no attempt had been made to lay down rules or guidelines at Community level, and the member state was therefore given a certain amount of judgment in deciding what its law-abiding citizens must put up with: see Van Duyn v Home Office (Case 41/74) ([1975] Ch 358).

Lady Justice Smith and Lord Justice Waller agreed.

Solicitors: Treasury Solicitor.

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