Although the appellant had been convicted of murder, that fact alone did not justify his expulsion. The conviction was a material fact which must be taken into account but what was needed was an assessment of his likelihood of offending again if allowed to remain in the United Kingdom after his release from prison. As several commentators in the Press have pointed out, the Tribunal had to make the same kind of judgement on the appellant which the Parole Board will be called upon to make early in 2008 when the appellant applies for release on parole after completion of 12 years of his life sentence. In paragraph 88 of its determination the Tribunal comments on the evidence presented to it on which it had to base its judgement:
“In the revised reasons for deportation letter it is noted that it is unlikely that the appellant will re-offend, and that he accepts his responsibility for his offences and has undertaken courses for anger management. It notes however that his current behaviour and actions and day-to-day life are very closely monitored. There is reference there to one escorted visit, though we accept that the evidence is in fact that he has been on two escorted visits and three unescorted visits. The point is also made in the refusal letter that the court has deemed that the appellant's crime is of such severity that he will always continue to be a threat to the community such that his release on licence would be on the basis that he might be recalled to prison at any moment for any breach of his conditions. The point is made that he has been assessed and that he is subject to the highest level of multi-agency public protection arrangements………. The letter does note that risk factors might increase because of media and public scrutiny that the appellant might receive. It also comments that the OAsys report  notes that there are occasions where the appellant has overacted to situations and there are severe concerns with finding him appropriate accommodation on release if allowed to remain in the United Kingdom. He would need to be excluded from certain parts of the country, community integration would be a problem on release and he might suffer a backlash. The letter states that the appellant's notoriety might make him feel excluded from society as he had been before and there was a significant risk that his previous disregard for authority and the law might resurface and result in him coming to adverse attention. As a consequence it was considered that he posed a continuing risk to the public and that his offences were so serious that he represents a genuine and present and sufficiently serious threat to the public in principle such as to justify his deportation.”
9 The Tribunal referred also to other aspects of the appellant’s history which fell to be taken into account in considering whether expulsion could be justified on public policy grounds. The appellant came to the UK when he was six years old and has lived here since then. Although he is still an Italian national he does not speak the language and has no ties with Italy. His parents were divorced and his mother, who lives in the UK, has remarried. His father’s whereabouts are uncertain; he may be in gaol in Italy or in Spain. The appellant has no contact with him. The Tribunal concluded that there was no evidence to support a finding that there were any grounds of public policy which would justify his exclusion from the UK.
10 The Tribunal also had to consider objections to removal based on Article 8 of the European Convention on Human Rights (ECHR) which states:
The Tribunal quoted case law of the European Court of Human Rights which decided that it was only in exceptional circumstances that this Article could be invoked in the case of an adult appellant and his mother and siblings. However, a balancing exercise had to be undertaken. The Tribunal concluded as follows in paragraph 103 of its determination:
“We accept that family life exists. The relationship between the appellant and his mother and brothers transcends normal emotional ties…. The impact on the appellant of long-term imprisonment has meant that his family ties have remained fundamentally important to his private and social existence beyond his eighteenth birthday, and of course being in prison has denied him the normal opportunities to lead an independent life once he turned eighteen.. In the instant case, the appellant has a very supportive family, who will have an important role on his release, to protect him as far as possible from notoriety. When it comes to the assessment of whether his removal would be disproportionate, we consider that there have been shown to be insurmountable obstacles to the family living together in Italy. The family have been living lawfully in the United Kingdom for twenty-one years and are established here. In Italy the appellant has no home, family, language, connection or support. In the United Kingdom where he has spent all but three or fours years of his life, the appellant has a home, a supportive family, supportive agencies and language skills. We conclude that the Secretary of State has not shown that the breach of the Article 8 right to family life that would be occasioned by the appellant's removal to Italy would be proportionate.” 
11 The case is complex and controversial, but it is clear that the Tribunal considered the evidence and relevant law with the utmost care. Ministers and opposition spokesmen alike have reacted to the Tribunal’s decision in an emotional and intemperate manner. It is, however, worth making the point that the Tribunal was in the case of the EEA considerations applying recent legislation, the Citizens’ Directive which was adopted by all Member States, including the UK, as recently as 2004. The Human Rights Act, making the European Convention on Human Rights directly enforceable in the UK courts, was passed in 1998 and brought into force in 2000. Politicians appear to be trying to blame the judges for the consequences of recent legislation for which they themselves are responsible.
12 Leaving aside for a moment the legal considerations, it is almost fortuitous that the appellant still had an Italian passport although he had been living in Britain for nine years, could not speak Italian and had no real connection with Italy. If he had acquired British citizenship there would be no possibility of deportation. Furthermore, one should perhaps ask whether it would be compatible with comity between Member States of the Union to impose on the Italian authorities a man recently released from gaol, with a serious criminal record, no connections with the country and no acquaintance with its language. Finally, even if the appellant were to be deported to Italy, there would be no impediment to his returning to the UK at any time, and as a Union citizen he would not need leave to enter. That, however, is a problem which could arise in any case of expulsion from one Member State to another.
13 The government has announced its intention of appealing against the decision and I have already noted that in accordance with section 103E of the Nationality, Immigration and Asylum Act 2002, the appeal lies to the Court of Appeal and must be on a point of law. Also, permission to appeal is required, which means that the government must first satisfy either the Tribunal itself or the Court of appeal that it has an arguable case. We do not yet know on what grounds the government will be appealing and it may be in difficulty in finding an arguable case. The most likely ground seems to me to be that the Tribunal has reached conclusions which are not supported by the evidence. There may well be scope for argument that the Tribunal should not have concluded on the evidence that the appellant would be unlikely to re-offend after his release on parole. In this connection, the determination notes at paragraph 88 that the Home office deportation letter itself concedes that this is unlikely. However, paragraph 94 discusses the appellant’s limited education and literacy, his lack of work experience because of his years in gaol. The Tribunal says:
“On his own admission the appellant experienced difficulties in integrating into British society, which led him to become involved in a gang around the age of thirteen. Integration into society on release would clearly pose difficulties for the appellant given his previous problems and the young age at which he went to prison and the notoriety surrounding the offences for which he was convicted.”
The appellant’s notoriety has now given rise to speculation that if released he would need to be given a different identity and special protection similar to that given to Ian Huntley’s former mistress. This must inevitably make integration into British society even more difficult. Whether or not such protective measures are taken there must be a risk that the appellant, having little education, no work experience and no employable skills, would revert to crime. A further possible ground of appeal arises in relation to Article 8 of the ECHR and the finding that there are exceptional grounds which justify the engagement of that Article, even though as a general rule it would not be engaged in the case of an adult male’s links with mother and siblings.
14 The Tribunal’s decision does not have any immediate consequences, as the appellant will not be eligible for release on parole for several months yet. In considering his application the Parole Board will have to decide whether the appellant is likely to offend again if released and in so doing must consider the same evidence which the Tribunal has considered. I do not suggest that the Board’s judgement in the matter would be infallible, but it has much more experience than the Asylum and Immigration Tribunal in deciding whether a particular convicted criminal is likely to revert to a life of crime and pose a threat to the security of society. If it decides against releasing him he remains in gaol. The Parole Board bears a heavy responsibility and if it decides in his favour there must be a strong probability that it has taken the right decision. The Tribunal’s decision has given rise to a great deal of controversy and anxiety, but it does not have the last word in deciding whether the appellant is fit to be released.
15 The facts of the case are unusual and the question arises whether it is to be regarded as a “one off”. In view of the large influx of immigrants from Eastern European Member States since May 2004, there must be a strong possibility that the question of the expulsion after completion of their sentences of EU nationals who have been convicted of serious crimes will arise more often than hitherto.
Harry Mitchell QC
29 August, 2007