R v Kluxen  EWCA Crim 1081
(1) Where the UK Borders Act 2007 requires (subject to exceptions, including certain detained psychiatric patients) the Secretary of State to make a deportation order in respect of a foreign criminal who has received a custodial sentence in relation to a single offence of at least 12 months, it is not appropriate for the court to recommend deportation. (2) Where because of the sentence imposed the UK Borders Act 2007 does not apply, deportation orders are appropriate only in exceptional cases. (3) As the Act applied, the recommendations for deportation were quashed.
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
CRIME — Sentence — Deportation, recommendation for — Foreign criminals convicted of offences and recommended for deportation by sentencing court — Secretary of State required by statute to order deportation — Whether appropriate or necessary for sentencing court to recommend deportation — United Kingdom Borders Act 2007, s 32
Where the Secretary of State for the Home Department was required by s 32 of the United Kingdom Borders Act 2007 to make a deportation order in respect of a foreign criminal, namely a person who was not a British citizen and who had been convicted of an offence and sentenced to imprisonment or detention of at least 12 months, it was not appropriate or necessary for the sentencing court to recommend the deportation of that person.
The Court of Appeal (Criminal Division) so held on 14 May 2010, when giving reasons for allowing appeals by (1) Patricia Kluxen, a Ghanian national, against the decision made by Miss Recorder Cutts QC, sitting in the Crown Court at Lewes on 6 November 2009 to recommend her deportation, following her convictions for four immigration offences for which she was sentenced to two terms of 30 months’ imprisonment and two terms of 18 months’ imprisonment; and (2) German Rostas and Superman Adam, both Romanian nationals, against the decision made by Judge Curran sitting in the Crown Court at Merthyr Tydfil on 22 May 2009 to recommend their deportation following their convictions after pleas of guilty to conspiracy to steal, for which they were each sentenced to two years’ detention.
MADDISON J, handing down the judgment of the court, said that s 32 of the United Kingdom Borders Act 2007 provided that the Secretary of State for the Home Department must make a deportation order in respect of a foreign criminal, namely a person who was not a British citizen and who had been convicted of an offence and sentenced to imprisonment or detention of at least 12 months (where that 12 months or more attached to a single offence), unless one of the exceptions in s 33 applied. Since the coming into force of the 2007 Act, it was no longer appropriate for a court to recommend the deportation of a foreign criminal. This was so for two reasons. (i) No useful purpose would be served by doing so; the Secretary of State was obliged by s 32 to make a deportation order, unless he decided that one of the exceptions in s 33 applied. (ii) Although s 32 did not expressly prevent the court from recommending the deportation, it did expressly remove any need for the court to do so. The power of the Secretary of State to make the deportation order derived from s 5(1) of the Immigration Act 1971, which provided that the Secretary of State might make such order where, inter alia, he deemed it conducive to the public good. S 32(4) of the 2007 Act provided that for the purposes of the 1971 Act deportation of a foreign criminal was conducive to the public good. Thus there was no need for a court to be involved in that process at all. The offenders fell within s 32 of the 2007 Act and their appeals would be allowed to the extent that the recommendations for their deportation would be quashed. It was not necessary for a court sentencing a foreign criminal to explain during its sentencing remarks that because the 2007 Act applied, it was not recommending deportation.
Where the court was considering recommending deportation in respect of non-British citizens to whom the 2007 did not apply, because they had received either a non-custodial sentence or one of less than 12 months, regardless of whether the offender was a citizen of the EU or not, it should apply the tests laid down in R v Nazari  1 WLR 1366Not on Bailii! (namely whether the offender’s continued presence in the United Kingdom was to its detriment) and R v Bouchereau (Case 30/77)B (namely whether the offender’s conduct constituted a genuine and sufficiently serious threat to the requirements of public policy affecting one of the fundamental interests of society), there being no practical difference between those two tests. The Bouchereau test was based on art 3 of Council Directive 64/221/EEC, which permitted “measures” concerning movement and residence of foreign nationals which were justified on grounds of public policy or secuirty. Although that article had been replaced by Council Directive 2004/38/EC, the Bouchereau test it still applied, as art 27(2) of the 2004 Directive was clearly intended to re-state art 3 of the 1964 Directive. Both tests set at a high level the bar which had to be cleared before a recommendation for deportation could be made. It would be rare for either test to be satisfied in respect of offenders whose offences merited a custodial sentence of less than 12 months. An offender who repeatedly committed minor offences could conceivably do so, as could a person who committed a single offence involving for example the possession or use of false identity documents for which he received a custodial sentence of less than 12 months. When considering a recommendation, the court could not take into account the Convention rights of the offender; the political situation in the country to which the offender might be deported; the effect that a recommendation might have on innocent persons not before the court or the provisions of art 28 of the 2004 Directive or the Immigration (European Economic Area) Regulations (SI 2006/1003) which concerned the considerations applying to an “expulsion” or “removal” “decision” concerning an EU citizen (such as length of residence, age, health and family situation), as those provisions governed only a decision of the Secretary of State to deport, and not a court recommendation.
Regina v Kluxen; Regina v Rostas and another
B;  WLR (D) 128
CA: Thomas LJ, Maddison J, Sir Geoffrey Grigson: 14 May 2010
Appearances: Esther Boateng-Addo (instructed by Hanson Woods Solicitors, Ilford) for Kluxen; Christine Laing QC and Flavia Kenyon (instructed by Johl & Walters, Leicester) for Adam and Rostas; Elizabeth Pearson (instructed by Crown Prosecution Service) for the Crown.
Reported by: Sharene P Dewan-Leeson, Barrister