ArticleCourt of Appeal rejects Home Office and stands with EEA national’s family member

In a significant legal victory, the Court of Appeal has upheld the decision in favour of Mr Okafor, the family member of an EEA national, against the Home Office’s appeal to exclude him from the UK on “public policy grounds.” The case, Secretary of State for the Home Department v Okafor [2024] EWCA Civ 23, marks a crucial juncture in the interpretation of immigration regulations concerning past convictions and the risk of re-offending.

Background of the case:

  • Mr Okafor, married to an EEA national (Swedish) with indefinite leave to remain in the UK, was initially granted entry clearance under the EU Settlement Scheme in 2020. However, he faced admission refusal and revocation of his family permit based on a 1994 US conviction for drug-related offences.
  • The decision was further complicated by Mr Okafor’s non-disclosure of this conviction in his application, an oversight that played a significant role in the Home Office’s public policy decision.

The Appeal process:

  • The First-tier Tribunal initially allowed Mr Okafor’s appeal, stating that the Home Secretary did not prove a “genuine, present and sufficiently serious threat” to society, as required for exclusion on public policy grounds.
  • On appeal by the Home Secretary, the Upper Tribunal set aside this decision, focusing on the ‘Bouchereau exception’ – a legal principle allowing exclusion even without a propensity to re-offend if the conduct causes “deep public revulsion.”
  • Despite setting aside the initial ruling, the Upper Tribunal acknowledged the low likelihood of Mr Okafor re-offending based on his rehabilitative efforts and good behaviour in prison.

Court of Appeal’s decision:

  • The Court of Appeal dismissed the Home Secretary’s argument on the cumulative effect of Mr Okafor’s behaviour, including deceptive conduct in immigration applications. The Court found no legal error in the earlier judgment, concluding that the deceptive conduct did not alter the overall assessment of Mr Okafor’s case.

This case highlights the importance of thorough and well-prepared legal representation in immigration matters, particularly for those involving complex issues such as past convictions and public policy. It also underscores the nuanced application of immigration law, where individual circumstances and rehabilitative efforts can significantly impact the outcome. The Court of Appeal’s decision reinforces the principle that every case must be assessed on its own merits, considering all relevant factors, including the likelihood of re-offending and the individual’s conduct post-conviction.

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