Regina v Kluxen: CACD 14 May 2010

The court considered the occasions on which a court should recommend deportation after completion of a prison sentence and how this might differ between EU and non-EU nationals.
Held: Since the 2007 it is not appropriate to recommend deportation of a ‘foreign criminal’ as defined in section 32. The Home Secretary is now under that obligation, and the court’s action would be unnecessary.
Where section 32 did not apply, the test in Bouchereau still applied: ‘the Nazari and Bouchereau tests are substantially the same; and . . a court . . should apply substantially the same test whether the offender is or is not a citizen of the EU. ‘
It: ‘will rarely be that either test is satisfied in the case of an offender none of whose offences merits a custodial sentence of 12 months or more. An offender who repeatedly commits minor offences could conceivably do so, as could a person who commits a single offence involving for example the possession or use of false identity documents for which he receives a custodial sentence of less than 12 months.’
The Court should not take into account the Convention Rights of the offender, the political situation in the country to which the offender may be deported, the effect that a recommendation might have on innocent persons not before the Court, the provisions of Article 28 of Directive 2004/38; or the 2006 Regulations. These were all matters for the Home Secretary.

Maddison J
[2010] EWCA Crim 1081, [2010] INLR 593, [2010] Crim LR 657, [2011] 1 WLR 218, [2011] 1 Cr App R (S) 39
United Kingdom Borders Act 2007 32, United Kingdom Borders Act 2007 (Commencement No.3 and Transitional Provisions) Order 2008 (2008 SI No.1818), Directive 2004/38/EC of 29 April 2004 on the right of Citizens of the Union and their family members to move and reside freely within the territory of the Member States, Immigration (European Economic Area) Regulations 2006 (SI 2006 No.1003)
England and Wales
CitedRegina v Caird CACD 1970
When considering the sentencing of rioters, it was not sufficient to consider the individual acts of the offenders. It is the act of taking part in such riotous activities that constitutes the seriousness of the offence.
Sachs LJ said: ‘When . .
CitedRegina v Pierre Bouchereau ECJ 27-Oct-1977
ECJ The different language versions of a community text must be given a uniform interpretation and hence in the case of divergence between the versions the provision in question must be interpreted by reference . .
CitedVan Duyn v Home Office ECJ 4-Dec-1974
LMA Miss Van Duyn, a Dutch national, wished to enter the UK to take up work with the Church of Scientology. Art 48EC (new Art.39EC) confers rights on the individuals of each Member State to go to another MS (host . .
CitedRegina v Kraus CACD 1982
. .
CitedRegina v Compassi CACD 1987
The court considered the test in deciding whether to make a recommendation for deportation of a defendant on completion of his jail sentence: ‘So far as this case is concerned this appellant has no previous convictions, and the question which has to . .
CitedRegina v Escauriaza CACD 2-Jan-1988
For all practical purposes the tests for deportation of an EU national after completion of a sentence of imprisonment are the same in Nazari and Bouchereau: ‘Thus under EEC Law a valid recommendation for deportation can only be made if at least two . .
CitedRegina v Spura 3-Jan-1988
The court considered the test for ordering deportation of an EU National after completion of his sentence of imprisonment, applying Bouchereau and Nazari: ‘. . in the case of Escauriaza . . the Court . . concluded, accepting a submission from an . .
CitedRegina v Nazari CACD 1980
The CACD heard several appeals together, giving guidance as to the general principles to be applied in deciding on recommendations for deportation under the Act. Lawton LJ said that ‘no court should make an order recommending deportation without . .
CitedBenabbas, Regina v CACD 12-Aug-2005
The Court considered a recommendation for the deportation of an Algerian national after the completion of his sentence.
Held: Rix LJ referred to both the Nazari and the Bouchereau tests, and said: ‘The Appellant is not of course an EU . .

Cited by:
CitedO, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Apr-2016
The appellant failed asylum seeker had been detained for three years pending deportation. She suffered a mental illness, and during her detention the medical advice that her condition could be coped with in the detention centre changed, recommending . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, European, Immigration

Updated: 01 November 2021; Ref: scu.414958