The Secretary of State for the Home Department v MG

An EEA national may be deported on public-policy or public-security grounds only where their current personal conduct establishes a genuine, present and sufficiently serious threat to a fundamental interest of society. Past convictions, general deterrence and historic risk assessments cannot alone satisfy that standard.

On an appeal, the Tribunal may consider post-decision evidence relevant to the substance of the deportation decision under Nationality, Immigration and Asylum Act 2002, section 85(4). A period of imprisonment within the preceding ten years does not automatically prevent enhanced protection under Article 28(3)(a) of the Citizens Directive, but must weigh negatively in assessing whether integration has been broken.

The Secretary of State ordered MG, a Portuguese national, to be deported following convictions for cruelty and assaults against one of her children. The First-tier Tribunal allowed her appeal. The Upper Tribunal set that decision aside for error of law and referred questions concerning Article 28(3)(a) of Directive 2004/38/EC to the Court of Justice of the European Union.

After the CJEU ruling, the Upper Tribunal re-made the decision. The Secretary of State accepted that MG had acquired permanent residence and that imperative grounds of public security were absent if enhanced protection applied. The central practical issue was whether, in light of updated evidence, MG still presented the requisite current threat to justify deportation at the baseline or permanent-residence level of protection.

1. Appeal allowed. The Tribunal re-made the decision by allowing MG's appeal against deportation. The Secretary of State had not shown either grounds, or serious grounds, of public policy or public security sufficient to justify it.

2. Under Article 27, a deportation measure must rest on the individual's personal conduct. Previous convictions do not themselves suffice, and the evidence must show a genuine, present and sufficiently serious threat to a fundamental interest of society. General prevention is not an acceptable justification.

3. Although the historical evidence had justified the Secretary of State's assessment at the decision date, the current evidence materially changed the position. MG had not reoffended, was in regular employment, no longer associated with drug users, maintained frequent contact with her children, and gave evidence of a more stable life. The older risk assessment was relevant but could not be determinative of her present risk. The Secretary of State neither challenged the updated evidence nor produced evidence showing a continuing present threat.

4. The Tribunal could consider post-decision evidence under section 85(4) of the Nationality, Immigration and Asylum Act 2002. Article 28(3)(a) identifies the level of protection applicable to an expulsion decision; it does not confine the appellate tribunal's assessment of the substance of that decision to facts existing on the decision date.

5. The Tribunal also expressed a legally significant but unnecessary view on Article 28(3)(a) of Directive 2004/38/EC. Imprisonment during the preceding ten years does not automatically bar enhanced protection. The required overall assessment may still find that integration has not been broken, but imprisonment must have a negative effect when integrative links are assessed.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal's successful decision was set aside for error of law. Following a preliminary ruling from the CJEU in the same litigation, the Upper Tribunal re-made the decision and allowed MG's appeal against deportation.
• First-tier Tribunal (Immigration and Asylum Chamber): Allowed MG's appeal against the deportation decision.