Court of Appeal Overrules Home Office’s Attempt to Bar Entry on “Public Policy Grounds”

The Court of Appeal has dismissed the Home Office’s appeal in a case concerning the denial of UK entry to a family member of an EEA national based on “public policy grounds”, despite the individual having a low likelihood of re-offending. The case is Secretary of State for the Home Department v Okafor [2024] EWCA Civ 23.

Case Background

Mr Okafor married a Swedish national in October 2019. She had indefinite leave to remain in the UK. On 30 July 2020, Mr Okafor was granted entry clearance under the EU Settlement Scheme and arrived in the UK with an EUSS family permit in September 2020.

His admission was refused on public policy grounds, leading to the revocation of his family permit under regulations 23 and 24 of the Immigration (EEA) Regulations 2016, and the cancellation of his leave to enter under paragraph 321B of the immigration rules.

The decision was based on a 1994 conviction in the United States for conspiracy to possess with intent to distribute heroin. Mr Okafor served almost 26 years in prison before his release in January 2019 and subsequent removal from the US. This conviction was not disclosed in his EUSS family permit application or two earlier visit visa applications, where he had denied any convictions in the UK or elsewhere.

The Appeal Process

Mr Okafor appealed against these decisions and succeeded at the First-tier Tribunal, which found that the Home Secretary had not proven that his conduct posed a “genuine, present and sufficiently serious threat” to society.

The Home Secretary appealed to the Upper Tribunal, which set aside the First-tier Tribunal’s decision for not considering the “Bouchereau exception”.

Despite this, the Upper Tribunal preserved the First-tier Tribunal’s finding that Mr Okafor was “not likely” to re-offend, citing evidence of his good behaviour, educational achievements, and employment during his imprisonment, including earning a Bachelor of Science in Business Law and working as a Quality Assurance Clerk.

The “Bouchereau exception” stems from the CJEU decision in Regina v Pierre Bouchereau [1977] EUECJ R-30/77. It posits that an individual’s past conduct, even without a propensity for future offences, can cause such “deep public revulsion” that they may still pose a “genuine, present and sufficiently serious threat” to society’s fundamental interests, warranting exclusion on public policy grounds under regulation 27 of the EEA Regulations.

The Home Secretary’s stance was primarily based on the nature of the offence and the length of the sentence, whereas Mr Okafor provided credible evidence of his limited involvement and the excessive nature of his sentence compared to others involved. This evidence was accepted by the judge, leading to the conclusion that the Home Secretary had not met the burden of proof to apply the Bouchereau exception. Consequently, the Home Secretary’s appeal was dismissed.

Court of Appeal Decision

The Home Secretary’s sole ground of appeal was that the Upper Tribunal erred by not considering the cumulative effect of Mr Okafor’s behaviour. They argued that his recent use of deception in immigration applications could place him within the Bouchereau exception’s scope.

The Court of Appeal firmly rejected this argument, stating that “the Judge took into account the cumulative effect of all relevant matters and concluded that the deceptive conduct did not tip the balance. His judgment does not disclose any error of law that would justify or permit us to interfere”.

Conclusion

This case illustrates the impact of well-prepared evidence in appeals. Despite challenging circumstances, the evidence in support of Mr Okafor’s appeal was pivotal in securing a favourable outcome.

All of our articles are intended for informational purposes only and do not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information provided.

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