Adedamola Daniel Badewa v The Secretary of State for the Home Department

In an appeal against an EEA removal decision, the tribunal must first determine entitlement under the Immigration (European Economic Area) Regulations 2006. Sections 117A–D of the Nationality, Immigration and Asylum Act 2002 do not apply to that distinct statutory exercise.

Where the appellant also advances Article 8 as a human-rights ground, sections 117A–D apply to that separate ground. Errors which blur the two regimes will not be material where the tribunal has in substance applied the EEA criteria, including proportionality, personal conduct, present risk, integration and links with the country of origin.

The appellant, a Nigerian national and family member of a Portuguese EEA national, appealed against the First-tier Tribunal’s dismissal of his challenge to a deportation order made under regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006.

He had convictions for robbery and possession of a knife, and had committed further violence while detained. The First-tier Tribunal found that he posed a genuine, present and sufficiently serious threat and that deportation was proportionate. It referred to sections 117A–D of the Nationality, Immigration and Asylum Act 2002 when addressing proportionality.

The appeal challenged the assessment of risk and contended that the First-tier Tribunal had wrongly applied the statutory public-interest considerations in an EEA appeal. The central issue was the proper role of sections 117A–D where an EEA removal appeal also includes an Article 8 ground.

1. Appeal dismissed. The First-tier Tribunal made errors of expression, but they were not material errors of law. Its decision dismissing the appeal stood.

2. The correct approach is sequential. First, the tribunal must decide whether the appellant satisfies the requirements of the Immigration (European Economic Area) Regulations 2006. Sections 117A–D of the Nationality, Immigration and Asylum Act 2002 have no application to that question. The EEA regime is self-contained and differs materially from the Article 8 regime, including because regulation 21(5)(d) precludes justification by general prevention.

3. Secondly, where Article 8 is raised as a ground of appeal, sections 117A–D apply to the separate human-rights determination. Schedule 1 to the 2006 Regulations permits human-rights grounds in an EEA appeal. Article 8 considerations within the EU-law assessment, however, are governed by EU law and are not an occasion to import the ECHR, the Human Rights Act 1998, or sections 117A–D into the EEA test.

4. The First-tier Tribunal wrongly treated sections 117A–D as bearing on its regulation 19(3) decision and used language capable of suggesting reliance on general prevention. On a fair reading, however, its references to the public interest were shorthand for public policy, public security and the fundamental interests of society under regulation 21. It expressly based its decision on the appellant’s personal conduct, not general deterrence.

5. The finding of a genuine, present and sufficiently serious threat was open to the First-tier Tribunal. It had not departed from the probation assessment of medium risk. MAPPA levels concern management arrangements and resources rather than a hierarchy of risk. The finding rested on repeated violent offending, violence in detention, limited acceptance of responsibility and failure to take rehabilitation opportunities.

6. The First-tier Tribunal was not required to mention every regulation 21(6) consideration expressly. Its reasoning sufficiently addressed the appellant’s youth, lack of integration, family circumstances and links with Nigeria. Deportation was justified and would not breach Article 8.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and held that the First-tier Tribunal’s errors were not material.

• First-tier Tribunal: on 10 December 2014, dismissed the appeal against a deportation order made under regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006.