Daha Essa v The Secrtary of State for the Home Department

For an EEA national who has acquired permanent residence, imprisonment does not automatically prevent residence during the ten years preceding a deportation decision from counting. The question is whether the individual remained integrated in the host state, assessed by such matters as home, family, employment and social links.

Prospects of rehabilitation are a substantial factor in the proportionality assessment where the person has permanent residence and genuine integration. They are especially weighty where rehabilitation is well advanced, the present risk is low, and deportation would remove support that promotes continued rehabilitation. They carry little weight where there are no reasonable prospects of rehabilitation and the person remains a continuing threat to public policy.

The appellant, a Dutch national of Somali origin, had lived in the United Kingdom since childhood. Following conviction for knife-point robbery and a sentence of detention in a young offenders’ institution, the Secretary of State decided to deport him.

The First-tier Tribunal dismissed his appeal on 18 April 2011. The Court of Appeal later held that it had erred by failing to consider the effect of deportation on rehabilitation. The Upper Tribunal set aside the First-tier Tribunal’s decision for material error of law, preserved most factual findings, and remade the appeal.

The issues were the applicable level of protection under the Citizens Directive, when rehabilitation must be considered, and whether deportation was proportionate on the updated evidence.

1. Appeal allowed. The Tribunal remade the appeal and held that deportation would be disproportionate.

2. Permanent residence requires five years’ continuous lawful EU residence as a qualified person or qualifying family member. Penal custody after conviction does not contribute towards acquiring that right. However, once permanent residence has been acquired, imprisonment before the ten-year point does not automatically destroy continuity for enhanced protection. The relevant inquiry is whether the person remained integrated in the host state through home, employment, family and social links.

3. The applicable protection is assessed at the date of the deportation decision. Although the appellant’s whole residence, including custody, could be considered in assessing integration, he had been resident for slightly less than ten years when the decision was made. He was therefore protected by Article 28(2) of the Citizens Directive, requiring serious grounds of public policy, rather than Article 28(3)(a).

4. Rehabilitation is relevant to proportionality for an EEA national who has acquired permanent residence and is genuinely integrated. It is one factor, not a determinative test. Where a person remains a present threat but has realistic and advanced prospects of rehabilitation supported by integration in the host state, deportation may be disproportionate. Conversely, it is unlikely to carry significant weight for a persistent offender with no reasonable prospect of rehabilitation.

5. The appellant’s current risk of violent and general reoffending was low. His successful compliance with licence and bail conditions, family support, increased insight, and progress towards stability showed genuine and durable rehabilitation. Deportation to the Netherlands would remove important support and incentives that assisted it. The serious public-policy threshold was therefore not met proportionately.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s dismissal was set aside for a material error of law and the appeal was remade and allowed.
• Court of Appeal: On 21 December 2012, it allowed the appellant’s challenge to the refusal of permission to appeal, quashed that refusal, and directed reconsideration because the First-tier Tribunal had not considered rehabilitation as required by EU law.
• High Court: Lang J refused the judicial-review application on 1 June 2012.
• First-tier Tribunal: It dismissed the appeal against deportation in a decision sent on 18 April 2011.