The Secretary of State for the Home Department v Mircea Gheorghiu

An EEA national may rely on the enhanced protection requiring serious grounds of public policy or public security only where he has acquired a permanent right of residence. Residence before accession, or before the relevant EU right existed, counts towards the ten-year protection only if it was lawful residence for a purpose contemplated by EU law.

In deciding whether to suspend certification for removal pending an EEA appeal under Immigration (European Economic Area) Regulations 2006, the decision-maker should consider the EEA national’s status, the effect on family members, evidence of continuing public risk, and whether live evidence is important to the assessment.

The Secretary of State appealed against the First-tier Tribunal’s decision allowing Mr Gheorghiu’s appeal against deportation under the Immigration (European Economic Area) Regulations 2006.

The First-tier Tribunal found that his historic Romanian convictions, including a rape conviction, did not establish a genuine, present and sufficiently serious threat. It nevertheless referred to the higher test of imperative grounds of public security. The Secretary of State contended that this was an error.

Mr Gheorghiu had been removed before his appeal after certification. The Upper Tribunal had also to address the practical consequences of that removal and give guidance on suspension of certification in EEA appeals.

1. The Secretary of State’s appeal was dismissed. The First-tier Tribunal erred by treating ten years’ residence as sufficient for the imperative-grounds protection. Residence before Romania’s accession to the EU, when Mr Gheorghiu had entered and remained unlawfully, could not count as lawful EU-law residence.

2. From January 2007, however, the accepted evidence established continuous lawful employment. Mr Gheorghiu had therefore acquired a permanent right of residence under Immigration (European Economic Area) Regulations 2006, regulation 15(1)(a). The applicable threshold was consequently serious grounds of public policy or public security under regulation 21(3), not imperative grounds.

3. The error was immaterial. The First-tier Tribunal’s primary finding that there was no genuine, present and sufficiently serious threat was sufficient even at the basic level of protection. On those findings, the higher serious-grounds threshold could not be met.

4. The Tribunal gave guidance, not necessary to the disposal, on applications to suspend certification under regulation 24AA. Relevant matters include the distinctive residence status of an EEA worker, interference with family life and EU residence rights, the evidence of continuing risk and rehabilitation, and the importance of live evidence where rehabilitation and risk are central issues.

5. The deportation appeal therefore remained allowed. The Secretary of State was directed to arrange Mr Gheorghiu’s return within 28 days. His enforced absence was not voluntary and should not interrupt residence relevant to his family’s future acquisition of permanent residence. The anonymity direction was revoked.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The First-tier Tribunal’s decision allowing the deportation appeal stood.
• First-tier Tribunal: FtT Judge Trevaskis allowed the appeal against the deportation decision in a decision promulgated on 27 April 2015.