In this complex appeal, the Appellant challenged the SSHD’s decision to deport him to the Netherlands based on his status as a permanent resident under the 2006 EEA Regulations. He appealed unsuccessfully to the First-tier Tribunal (‘FtT’) and although he was granted permission to appeal to the Upper Tribunal (‘UT’), the UT upheld the decision of the FtT. In his appeal to the Court of Appeal, he was part successful. It was found that the FtT had erred in its consideration of whether ‘serious grounds of public policy or security’ were met to justify his deportation and on that issue, his matter was remitted to the UT to be remade. He lost on the issue of whether he had ten years’ continuous residence for purpose of Article 28(3)(a) of Directive 2004/38/EC and so that he could be removed only on ‘imperative grounds of public security’.
The Appellant is a national of the Netherlands born in Somalia. He came to the UK in 1998, aged 14 and has been continuously resident in the UK since then, the period of stay by the date of the decision challenged in proceedings being about 17 years and 3 months. Whilst in the UK, the Appellant committed several criminal offences and spent three periods in custody. First, following a conviction for robbery he was in 2000 sentenced to 3 years’ confinement in a Young Offenders’ Institution, serving 18 months in custody. Secondly, following conviction on 16 October 2012 of affray, possession of an offensive weapon in a public place, damage to property, and failure to comply with an earlier order, he was sentenced to 19 months in aggregate and served 9 and 1/2 months in custody. Thirdly, on 10 June 2015 the Appellant was sentenced for possession of an offensive weapon in a public place and possession of a bladed article on 5 November 2014. At the sentencing hearing it was said that at the time of his previous offending he was addicted to drugs which also aggravated his mental ill health. The Appellant has also been affected by mental health and addiction-related problems. These were identified to be connected to his offending.
More positively, it was accepted that whilst in the UK the Appellant had developed substantial connections in the country including family relationships first with his now ex-wife and child and then with a new wife and stepchildren, both of these partners and all of the children are British citizens, as well as strengthening other family relationships notably that with his father. The Appellant’s evidence before the FtT was that he has no current family or other connections to the Netherlands beyond his and his father’s nationality.
Following his imprisonment on the last occasion, in 2016, the SSHD gave a fresh notice of a decision to deport the Appellant to the Netherlands. The Appellant filed Notice of Appeal. The FtT dismissed the appeal finding that there was no evidence to show ten years’ continuous residence under the EEA Regulations and that he represented ‘a threat’, that his removal was not disproportionate, and he was a risk of reoffending. The FtT’s reasoning concerning whether the period of residence was interrupted by periods of imprisonment was contained in a single paragraph which, concluded that he needed to reside in the UK in accordance with the regulations for the whole period of ten years, deeming that ‘not insubstantial’ periods of imprisonment interrupted the ten years period of residence.
The Appellant sought permission to appeal to the UT. This was ultimately granted and dismissed, finding no error of law in the decision of the FtT. The UT held that the FtT had addressed all necessary matters and made adequate findings on the issue of whether periods of imprisonment interrupted the period of ten years.
Proceedings in the Court of Appeal
There were two issues before the Court of Appeal. The first was whether the Appellant had ten years continuous residence to bring Regulation 21(4) into play, so that his deportation had to be justified on "imperative grounds of public security". The Respondent disputed that the Appellant had established ten years continuous residence, but did not submit that if the Appellant had ten years residence there were "imperative grounds of public security" to justify his deportation. The second issue was whether deportation was justified on "serious grounds of public policy or public security" under Regulation 21(3), as it had to be in view of the Appellant's having acquired the status of permanent resident after five years. This was the basis on which the Respondent made its deportation decision.
The Appellant submitted that there were errors with respect to the approach adopted to assessment of whether the periods he spent in prison interrupted the continuity of residence, and second, that there were errors with respect to assessment of risk in view of the fact that the Appellant has right to permanent residence and that lawful assessment required that expulsion be justified against serious grounds of public policy or security. As already noted, the Appellant was in part successful before the Court of Appeal. It was found that the FtT erred in its consideration of whether the Appellant represented a threat on serious grounds of public policy or security and, on that issue only, the matter was remitted to the Upper Tribunal to be re-made.
On the issue as to whether there had been an error in the assessment of whether the Appellant could rely on enhanced protection against expulsion, the Court of Appeal found that in order to qualify for enhanced protection one needed to show that the period of ten years was met but it was unclear, whether to arrive at that period, one took into account periods of imprisonment or ignored them. The Court of Appeal considered it unnecessary to attempt to discern the relevant law, in view of the fact that the mathematical assessment was one of two apparently independent criteria required to be met in order for a person to qualify for enhanced protection – the second being sufficient level of integration. The Court of Appeal concluded that the conclusions of the FtT were open to the judge in view of the fact particularly, that the convictions always had a negative impact and were indicative of rejection of social values of the host member state. Within this, the court considered that prior integration and the fact that integrative links with family and the social network remained intact during imprisonment as demonstrated by visits was ‘of little if any importance in the overall assessment’.
That conclusion is, not easy to reconcile with the authoritative statement of relevant law on the question, that of the CJEU in FV (Italy) v SSHD, in which it identified ten-year residence (which includes enjoying permanent residence) as ‘the decisive criterion’ for the grant of enhanced protection against expulsion. It set out the relevant criteria involved in an ‘overall assessment’ when imprisonment ‘lead[s]... to a severing of the link with that State and to discontinuity of the period of residence in that State’, which assessment clearly focused on the enquiry as to whether for the particular person the impact of period of imprisonment was such so as to sever links with the host member state, including social and cultural links.
The Appellant is considering an appeal to the UKSC on the important question of wider public importance, namely the extent of protection under Regulation 21(4)(a) against deportation, including in what circumstances periods of imprisonment (including relatively short periods as here) void the enhanced protection against deportation otherwise given to EEA citizens who resided in the United Kingdom for a continuous period of at least ten years prior to the deportation decision.
Solicitor Firoza Saiyed and director Rohena Wallace of the Harrow based public law department instructed Eric Fripp and Bojana Asanovic of Lamb Building