A B C v Secretary of State for the Home Department

For an EU citizen facing deportation, the decision-maker must apply the enhanced protections in the Citizens’ Directive and the Immigration (European Economic Area) Regulations 2006. The assessment must address nationality, residence and any permanent right of residence, the applicable public-policy threshold, present and offence-specific risk, proportionality, and the individual circumstances listed in the Regulations. A previous conviction cannot by itself justify deportation. The best interests and views of affected children require an informed and up-to-date assessment. The decision-maker must also consider the European dimension, including whether removal may increase the risk of reoffending by impairing rehabilitation. Where enforcement occurs more than two years after a deportation order, the Secretary of State must first assess whether circumstances have materially changed and whether removal remains justified.

The claimant, a German national, challenged decisions concerning deportation orders, removal directions and immigration detention. Her deportation followed convictions for assisting unlawful immigration and possessing false identity documents. The First-tier Tribunal had dismissed her appeal, and the Upper Tribunal had refused permission to appeal. The Administrative Court considered whether there was a compelling reason to judicially review that refusal under the Cart jurisdiction, together with related issues concerning residence rights, the effect of deportation on the claimant’s children, revocation, removal after two years and procedural amendment of the judicial review grounds.

The central issue was whether the First-tier Tribunal and the Upper Tribunal had failed to apply the statutory and European-law safeguards governing deportation of an EU citizen and whether the proposed Cart challenge had a sufficient prospect of success.

1. Permission. Permission was granted to challenge the Upper Tribunal’s refusal of permission to appeal the First-tier Tribunal’s determination. The First-tier Tribunal had arguably failed to address material matters, and the Upper Tribunal’s refusal was arguably clearly wrong. Those matters provided the compelling reason required for a Cart challenge.
2. Residence and nationality. There was a very strong arguable case that the claimant was a German, not Ghanaian, national; that she had arrived in the United Kingdom with her children in 2003; and that she had acquired permanent residence before the deportation decision. The decision-makers had failed adequately to address evidence including education, housing, employment-seeking, self-employment, self-sufficiency and long residence.
3. Risk and proportionality. The assessment had to be based on the claimant’s personal conduct and a genuine, present and sufficiently serious threat. The old pre-sentence risk assessment was insufficient for an up-to-date assessment of the specific risk of repetition. The decision-maker also had to apply the correct higher threshold if permanent residence had been acquired and give reasons for any conclusion that serious grounds existed.
4. Children and European dimension. The best interests of affected children were a primary consideration. Their views and current circumstances required proper investigation. The decision-maker also had to consider whether deportation would affect rehabilitation and increase the risk of reoffending, including by comparing the position in the United Kingdom with that in Germany.
5. Further decisions. It was arguable that the decision concerning revocation was not properly characterised under regulation 24A and that enforcement after two years required the fresh assessment required by regulation 24(5). The remaining challenges were stayed pending the Cart challenge. The Upper Tribunal was substituted as defendant, the Secretary of State became an interested party, and costs were reserved.

1. First-tier Tribunal. The claimant’s appeal against the deportation decision was dismissed on 4 July 2011.
2. Upper Tribunal. Permission to appeal was refused on 12 October 2011, with the refusal taking effect on 13 October 2011.
3. High Court (Administrative Court). Permission was granted for a Cart challenge to the Upper Tribunal’s refusal. The other proposed grounds were stayed.