AA (Nigeria) v Secretary of State for the Home Department

Once an EEA national has acquired permanent residence, the right is lost only in the circumstances specified by the governing scheme: absence from the host state for more than two consecutive years. CJEU decisions about whether residence or imprisonment counts towards acquiring permanent residence, or enhanced protection, do not justify treating imprisonment as causing loss of an existing right. Criminality must instead be assessed under the public-policy and public-security expulsion criteria. Those criteria require proportionality, personal conduct, a genuine, present and sufficiently serious threat, and consideration of personal circumstances including integration. A tribunal that addresses those matters and finds no present threat commits no error of law.

The respondent, a Norwegian citizen originally from Nigeria, acquired permanent residence in the United Kingdom after five years’ continuous residence under the Immigration (European Economic Area) Regulations 2006. Following a conviction for importing cocaine and a six-year sentence, the Secretary of State decided to deport him on serious public-policy grounds.

The First-tier Tribunal allowed his appeal, and the Upper Tribunal upheld that decision. The Secretary of State appealed to the Court of Appeal on new arguments based on CJEU case law. The issues were whether imprisonment had caused the respondent to lose his permanent-residence right and, alternatively, whether the tribunals had failed to consider its effect on his integration when applying the serious-grounds test.

The appeal was dismissed. Richards LJ gave the judgment, with Gloster LJ and Baker J agreeing.

1. Loss of permanent residence. The CJEU authorities relied on by the Secretary of State, including Secretary of State for Work and Pensions v Dias Case C-325/09, Onuekwere v Secretary of State for the Home Department Case C-378/12 and Secretary of State for the Home Department v MG Case C-400/12, concerned the acquisition of permanent residence or enhanced protection. They did not govern the loss of an already acquired right.
2. Article 16(4) of the Directive 2004/38/EC, reflected in regulation 15(2) of the Immigration (European Economic Area) Regulations 2006, provides that permanent residence is lost only through absence exceeding two consecutive years. The analogy used in Dias for pre-transposition residence could not be extended to imprisonment after the right had been acquired. Treating criminality or imprisonment as causing loss would subvert the legislative scheme and remove the protection of the serious-grounds test.
3. Expulsion assessment. For a person retaining permanent residence, regulation 21(3), corresponding to Article 28(2), required serious grounds of public policy or public security. The decision also had to satisfy proportionality and the personal-conduct and present-threat requirements in regulation 21(5), while taking account of the personal circumstances and integration factors in regulation 21(6). Previous convictions alone could not justify deportation.
4. The First-tier Tribunal had considered the seriousness of the offence, the risk of reoffending, the respondent’s imprisonment, family life, employment prospects, length of residence and social and cultural integration. Its finding that he did not represent a genuine, present and sufficiently serious threat, and that deportation would be disproportionate, was open to it on the evidence. The Upper Tribunal was therefore right not to interfere.

A reference to the CJEU was unnecessary. The court left unresolved whether a tribunal errs in law by failing to consider an unargued issue that was not obvious in the Robinson sense.

1. Court of Appeal (Civil Division): Dismissed the Secretary of State’s appeal from the Upper Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber): Held that the First-tier Tribunal had made no error of law and allowed its determination to stand.
3. First-tier Tribunal: Allowed the respondent’s appeal against the Secretary of State’s deportation decision.