Key Facts
- •Mr. Okafor, a Nigerian citizen, was refused admission to the UK and his leave cancelled due to a 1994 US conviction for conspiracy to possess heroin and subsequent deception in UK immigration applications.
- •The Upper Tribunal (UT) allowed Mr. Okafor's appeal, finding the Secretary of State for the Home Department (SSHD) failed to establish a "genuine, present and sufficiently serious threat" under the Bouchereau exception.
- •The SSHD appealed, arguing the UT erred in not considering the cumulative effect of Mr. Okafor's drug offending and deception.
- •The Court of Appeal considered whether the UT judge impermissibly failed to consider the cumulative effect of Mr. Okafor's conduct.
Legal Principles
The Bouchereau exception allows exclusion based on past conduct alone if it represents a "genuine, present and sufficiently serious threat affecting one of the fundamental interests of society," even without a propensity to re-offend. This exception applies exceptionally, in cases of "deep public revulsion."
R v Bouchereau (Case 30-77) [1978] QB 732 (ECJ); SSHD v Robinson [2018] EWCA Civ 85
In assessing the Bouchereau exception, the tribunal must consider the cumulative effect of all relevant conduct, including past offenses and subsequent conduct.
K and HF (CJEU)
The burden of proof rests on the SSHD to demonstrate, on the balance of probabilities, that an individual represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.
Regulation 27(5)(c) of the EEA Regulations
The four-stage test in BF (Portugal) v SSHD [2009] EWCA Civ 923 must be followed: (i) relevant personal conduct; (ii) genuine, present and sufficiently serious threat; (iii) threat affects fundamental interests; (iv) proportionality.
BF (Portugal) v SSHD [2009] EWCA Civ 923
Outcomes
The Court of Appeal dismissed the SSHD's appeal.
The Court found the UT judge did consider the cumulative effect of Mr. Okafor's conduct. While the judge addressed the criminal conviction and deceptive conduct separately for clarity, this did not indicate a failure to consider their cumulative impact. The Court emphasized that the judge applied the correct legal principles and reached a justifiable conclusion on the evidence before him.