2012 12 Migrants

Tuesday 1 January 2013

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R(Daha Essa) v Upper Tribunal (Immigration and Asylum Chamber and anr[2012] EWCA Civ 1547 (Maurice Kay, V-P, Touslon LJ, Aikens LJ): E was an EU citizen who the Secretary of State had decided to deport following his conviction for criminal offences. The First-tier Tribunal dismissed his appeal and permission to appeal was refused by that body and by the Upper Tribunal. He sought judicial review of the refusal of permission to appeal, arguing that the proportionality test under article 8 ECHR had infected the assessment of proportionality under EU, having regard to the requirements of EU law as set out by the Court of Justice in Land Baden-Wuertemberg v Tsakouridis Case C-145/09 and the need to take into account the risk of compromising the social rehabilitation of the EU citizen in the host state in his interest and that of the EU generally. Thus it was argued that there was a European dimension beyond the interests of the expelling state and that of the foreign criminal. The Court of Appeal accepted that there was a failure by the First-tier Tribunal to direct itself in accordance with the requirements of EU law and it granted the application for judicial review. The case is important in the social welfare context as it is a reminder that as a matter of EU law, arguments about the ‘proportionality’ of an interference with EU rights require consideration of interests over and above those in play under the ECHR. Thus, a proposal that a person with a need for care and attention may receive social services support in his own EU member state and that therefore he does not require a UK local social services authority to provide such support may require comparative consideration of the prospects for that person’s recovery as between the UK and the home state as to whether his care would be compromised in the home state in order to be lawful. Click here for judgment.

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