Lopes v Secretary of State for the Home Department

In an EEA deportation appeal, enhanced protection under regulation 21(4) is a legal categorisation based on an evaluative assessment of integration. Imprisonment interrupts continuity of residence for the relevant ten-year period, but remains one factor in assessing whether integrating links have been broken. Failure to cite a later CJEU authority is not a material error where imprisonment and the relevant integration factors were assessed. A concession forming part of the decision cannot be withdrawn on appeal as of right. Justice, fairness and prejudice must be considered, particularly where the first-instance hearing proceeded on the conceded basis. The Upper Tribunal may set aside the First-tier Tribunal only for a material error of law.

The appellant arrived in the United Kingdom from Portugal in 2002, aged six. Following serious violent offences committed at the age of 16, the respondent decided in June 2014 to remove him under the Immigration (European Economic Area) Regulations 2006. The decision letter concluded that he fell within regulation 21(4), so removal required imperative grounds of public security.

The First-tier Tribunal allowed the appellant’s appeal. At a case management hearing, the respondent accepted that regulation 21(4) applied. The Upper Tribunal later treated reliance on that concession as a material error of law, set aside the First-tier Tribunal’s decision and allowed the respondent’s appeal. The central issues were whether the original decision contained a material error and whether the concession could properly be withdrawn on appeal.

Simon LJ gave the leading judgment, with which Sir Stephen Richards and Davis LJ agreed.

1. Disposition. The appeal was allowed and the First-tier Tribunal’s decision was restored. The Upper Tribunal had not been justified in setting aside the First-tier Tribunal’s decision and remaking the case.
2. Enhanced protection. Whether a person falls within regulation 21(4) is ultimately a legal categorisation, but it is based on an evaluation of the relevant facts. The decision letter made a holistic assessment of the appellant’s integrating links, including residence, family connections, age on arrival and time in custody.
3. Effect of imprisonment. The CJEU decisions in Secretary of State for the Home Department v MG (Directive 2004/38/EC) Case C-400/12 and Land Baden-Württemberg v Tsakouridis Case C-145/09 [2010] ECR I-11979 required an overall assessment. Imprisonment interrupted continuity of residence for the relevant period, but had to be considered with the other factors when deciding whether integrating links had been broken. The decision letter had taken imprisonment into account. Its failure expressly to mention MG did not establish a material error, and no inconsistency was shown between the letter and the CJEU approach.
4. Concession and fairness. The respondent’s acceptance that regulation 21(4) applied formed part of the decision and was the basis on which the First-tier Tribunal hearing proceeded. The Upper Tribunal’s statement that absence of prejudice would probably justify withdrawal was unsatisfactory. Any withdrawal must be assessed against the overriding requirements of justice and fairness, including the prejudice caused by changing the case after a full hearing. The fact that the concession concerned a legal issue did not itself entitle the respondent to withdraw it.
5. Material error and representation. The Upper Tribunal had to identify an actual material error of law; findings that an error or materiality was merely arguable were insufficient. Where an unrepresented person is offered a choice between remittal and proceeding, sufficient time should be allowed for reflection on the consequences. Since the First-tier Tribunal had made no material error, its decision stood.

1. Court of Appeal (Civil Division): Allowed the appeal and restored the First-tier Tribunal’s decision.
2. Upper Tribunal (Immigration and Asylum Chamber): On 13 November 2015, set aside the First-tier Tribunal’s decision for an alleged material error of law and allowed the respondent’s appeal.
3. First-tier Tribunal: On 23 December 2014, allowed the appellant’s appeal against the respondent’s removal decision.