Court of Appeal Upholds Decision Regarding Exclusion of Individual Under EEA Regulations Based on Public Policy Threat

Citation: [2024] EWCA Civ 23
Judgment on

Introduction

The case of Secretary of State for the Home Department v Henry Chigozie Okafor concerns the application of European Economic Area (EEA) Regulations regarding the exclusion of an individual from the United Kingdom based on grounds of public policy. Central to the case are the principles outlined in the EEA Regulations and prior case law regarding the assessment of an individual’s conduct as a genuine, present, and sufficiently serious threat affecting one of the fundamental interests of society. The issue in contention was whether Mr. Okafor’s criminal history and his subsequent deceptive behavior when applying for UK immigration fell within the “Bouchereau exception,” which permits exclusion despite the absence of a present threat of re-offending.

Key Facts

Mr. Okafor, a Nigerian citizen married to an EEA national, was refused entry to the UK and had his leave canceled due to a past US conviction for drug trafficking and his failure to disclose this conviction in his immigration applications. Upon appeal, the First-tier Tribunal (FtT) found no likelihood of re-offending. The Upper Tribunal (UT) then had to consider whether the Bouchereau exception applied, given that the FtT Judge Mailer concluded that Okafor’s past conduct did not establish a genuine, present and sufficiently serious threat to society.

The core legal principles applied in this case derive from the Immigration (European Economic Area) Regulations 2016 (EEA Regulations), specifically regulation 27(5), which requires consideration of whether a person’s conduct represents a “genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.” The case also touched upon the application of the Bouchereau exception, which originates from the case R v Bouchereau (Case 30-77) [1978] QB 732 (ECJ), where past conduct alone, in exceptional circumstances, is sufficient to establish a threat justifying exclusion under public policy grounds.

The assessment of whether Mr. Okafor’s past behavior fell under the Bouchereau exception was based on a four-stage test from BF (Portugal) v SSHD [2009] EWCA Civ 923 as follows:

  1. Determining the relevant personal conduct;
  2. Assessing whether that conduct represents a genuine, present, and sufficiently serious threat;
  3. Verifying whether the threat affects a fundamental interest of society;
  4. Considering the proportionality of removal or exclusion.

Outcomes

The UT, presided over by Lord Justice Stuart-Smith, concluded that Okafor’s criminal history, although severe, did not fall within the exceptional category under the Bouchereau exception, as the applicant was found not to have a propensity to offend again. The UT also found that the SSHD had not established, based on the evidence submitted, that Mr. Okafor’s deceptive behavior in his immigration applications engendered “deep public revulsion” as required to trigger the Bouchereau exception.

The Court of Appeal confirmed the UT’s ruling, dismissing the appeal by the SSHD. The Court of Appeal recognized that the UT Judge carried out a comprehensive and fact-sensitive analysis and found no material error in law that would justify intervening with the decision of the UT.

Conclusion

The Court of Appeal’s decision in Secretary of State for the Home Department v Henry Chigozie Okafor reinforces the high threshold set by the Bouchereau exception, requiring the conduct to engender “deep public revulsion” in the absence of a propensity to re-offend. The ruling illustrates the imperative for a holistic assessment of an individual’s conduct in light of the fundamental interests of society when applying the EEA Regulations on public policy grounds. The case confirms that, in practice, the application of the Bouchereau exception remains limited to exceptional cases involving extremely serious and reprehensible conduct.

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