HR (Portugal) v Secretary of State for the Home Department

On a renewed application for permission to appeal, an arguable issue as to whether periods of imprisonment count towards the ten-year residence period under the Immigration (European Economic Area) Regulations 2006 may justify permission where the issue could affect the applicable deportation test. The court may assume a disputed factual matter for that limited purpose without deciding the merits. The relevant EEA decision must first be identified under regulation 21(1).

The appellant, a Portuguese national facing deportation, claimed residence in the United Kingdom from late 1997. The Asylum & Immigration Tribunal rejected his case under other deportation tests, including the five-year test, but the Secretary of State accepted that different considerations would apply if the ten-year test under regulation 21 were engaged.

Permission had initially been refused on paper. On renewal, a later letter indicated that the earlier deportation decision had not considered the appellant’s EEA status and that deportation had been reconsidered. The central issues were whether periods of imprisonment counted towards ten years’ residence and which decision supplied the relevant date.

Lord Justice Pill gave the judgment, with Lord Justice Goldring agreeing.

1. The application was a renewed application for permission to appeal. The court made no finding of fact about whether residence began in late 1997. It assumed that date solely for the purpose of deciding whether permission should be granted.
2. On that assumption, the appellant could have completed ten years’ residence by late 2007 or early 2008. The sole ground pursued was whether periods of imprisonment counted towards the ten-year period under regulation 21 of the Immigration (European Economic Area) Regulations 2006. The issue was arguable and potentially material because the Secretary of State had accepted that the ten-year test would involve different considerations. Permission was therefore granted on that issue, without expressing any view on its merits.
3. Regulation 21(1) defines a relevant decision as an EEA decision taken on grounds of public policy, public security or public health. The court left open whether the September 2006 deportation order remained the relevant decision, or whether the later February 2008 letter amounted to a fresh relevant decision after recognition that the earlier decision had not considered EEA status.
4. The document dated 19 January 1978 was plainly mis-typed and almost certainly referred to the appellant’s date of birth. It did not appear to provide a relevant date. The possible significance of later service was left open, although no supporting evidence had been produced.

Order: application granted.

1. Court of Appeal (Civil Division): granted the renewed application for permission to appeal on the issue whether periods of imprisonment counted towards the ten-year residence period.
2. Stanley Burnton LJ: refused permission on paper, considering that the ten-year period had not been completed by the date of the original deportation decision.
3. Asylum & Immigration Tribunal: rejected the appellant’s challenge under other deportation tests, while the Secretary of State conceded that different considerations would apply if the ten-year test were engaged.