MS v The Secretary of State for the Home Department

In a human rights appeal, the Tribunal must determine whether removal would be unlawful because the appellant is a British citizen. A past opportunity to seek discretionary registration as a British citizen does not itself affect Article 8 proportionality; the material considerations are the nature and extent of the person’s life in the United Kingdom.

An EEA national with no right of residence under EU law or the Immigration (European Economic Area) Regulations 2016, and no leave, is unlawfully present for section 117B(4) and not lawfully resident for section 117C(4)(a) of the Nationality, Immigration and Asylum Act 2002. Section 117A(2) nevertheless permits a fact-sensitive, modest flexibility for an EU child whose status was controlled by parents.

The appellant, a Belgian citizen born in 1998, appealed against the refusal of his human rights claim and the proposed deportation following repeated convictions, including serious violence against women. The First-tier Tribunal had previously allowed his appeal, but its decision was set aside in an earlier error-of-law decision of the Upper Tribunal. This decision re-made the appeal.

The appellant contended that his childhood residence, potential eligibility for British citizenship, EEA nationality, private and family life, and difficulties in Belgium outweighed the public interest in deportation. The central issues were the relevance of prospective British citizenship, the effect of the EEA appeal regime, the application of Part 5A of the Nationality, Immigration and Asylum Act 2002 to an EEA national, and whether deportation would be disproportionate under Article 8.

1. The appeal was dismissed. The appellant had not shown that deportation to Belgium would breach Article 8.

2. If British citizenship is material to the legality or proportionality of removal, the Tribunal deciding the appeal must determine it. That is consistent with the Tribunal’s necessary task under Part 5A when deciding whether another person is a British-citizen qualifying child or partner. The appellant was not a British citizen by adoption. His former ability to apply for discretionary registration under section 3(1) of the British Nationality Act 1981 carried no material weight in the proportionality exercise. What mattered was the actual nature and extent of his life in the United Kingdom.

3. The appellant could not use his in-country human rights appeal to challenge the regulation 27 deportation decision under the Immigration (European Economic Area) Regulations 2016. Regulation 37 required that challenge to be initiated from abroad. Allowing the same challenge through the human rights appeal would defeat that legislative purpose.

4. Part 5A applied to the Article 8 claim. An EEA national who has no EU-law or Regulations basis to remain, and no leave under the Immigration Act 1971, is unlawfully present for section 117B(4) and cannot be lawfully resident for section 117C(4)(a). However, section 117A(2) allowed modest flexibility. The appellant’s residence as an EU child was treated as lawful because he was under parental control, attended education without challenge to his status, and faced no contemplated enforcement action.

5. The appellant was a foreign criminal. His offending made him both a persistent offender and a person whose adult offending had caused serious harm. He narrowly met the first two limbs of Exception 1 in section 117C(4), but failed to establish very significant obstacles to integration in Belgium. He was a Belgian citizen, had lived and attended school there, could use English while improving his language skills, and could seek support there.

6. There were no very compelling circumstances outweighing the strong public interest. The appellant’s lengthy residence, troubled childhood, youth when many offences were committed, and rehabilitation courses were outweighed by serious and repeated violence, continuing risk to women, limited evidence of positive integration, and repeated unlawful returns after removal.

• Upper Tribunal (Immigration and Asylum Chamber): Re-made the human rights appeal and dismissed it: [2019] UKUT 356 (IAC).
• First-tier Tribunal: The appellant’s appeal was previously allowed following a hearing in October 2018. That decision was set aside in an earlier Upper Tribunal error-of-law decision, the citation for which was not stated in the judgment.