Hussein v Secretary of State for the Home Department

An EEA national claiming enhanced protection from deportation under Regulation 21(4) must establish both the required ten-year residence period and, following an overall assessment, that imprisonment has not broken the integrative links with the host state. Custody is not an automatic bar, but repeated offending and custodial sentences may demonstrate severance of those links.

A permanent resident is protected by the distinct requirement in Regulation 21(3) that deportation be justified on serious grounds of public policy or public security. A finding of a present threat and proportionality cannot substitute for that statutory threshold. Where enforcement has been deferred, an updated assessment may be required.

The appellant, a Dutch citizen who had lived in the United Kingdom since childhood, had a substantial criminal record including periods of imprisonment. The Secretary of State made a deportation order under Immigration (European Economic Area) Regulations 2006. It accepted that he had acquired a permanent right of residence after five years, but disputed that he qualified for the enhanced protection available after ten years' residence.

The First-tier Tribunal dismissed his appeal. The Upper Tribunal found no error of law. The Court of Appeal considered whether the appellant qualified for enhanced protection under Regulation 21(4), and whether his deportation as a permanent resident was justified on serious grounds under Regulation 21(3).

Disposition

The court unanimously allowed the appeal in part. It dismissed Ground 1, concerning enhanced protection under Regulation 21(4), but allowed Ground 2 and remitted the case to the Upper Tribunal for a fresh decision under Regulation 21(3) of the Immigration (European Economic Area) Regulations 2006.

1. Enhanced protection under Regulation 21(4) required more than a mathematical ten-year calculation. Periods of imprisonment did not automatically disqualify an EEA national. The tribunal had to make an overall assessment of whether imprisonment had broken integrative links with the host state, applying the approach in MG (Portugal), Tsakouridis, and B v Land Baden-Württemberg and Vomero [2019] QB 126.

   The relevant matters included the strength of pre-detention integration, the nature and circumstances of the offending, and conduct during detention. The court did not determine whether time in custody itself could count towards the ten-year calculation, since that issue could not affect the result.

2. The First-tier Tribunal was entitled to find that the appellant's repeated offending and non-trivial custodial sentences had broken his integrative links with the United Kingdom. As explained in Secretary of State for the Home Department v Viscu [2019] EWCA Civ 1052, imprisonment will generally indicate rejection of the host state's societal values. Regular family visits during detention had little, if any, significance in this narrower assessment. Ground 1 therefore failed.

3. The First-tier Tribunal did not, however, demonstrate that it had applied the separate and higher test in Regulation 21(3). Its findings that the appellant posed a present threat and that deportation was proportionate did not establish that there were serious grounds of public policy or public security. The Upper Tribunal had erred in treating the First-tier Tribunal's reasoning as adequate.

4. Because almost four years had elapsed since the deportation decision, it was appropriate to remit rather than remake the decision. The Upper Tribunal was to decide, through a different judge, whether removal could still be justified on serious grounds. The Secretary of State was ordered to pay 50% of the appellant's reasonable appeal costs.

• Court of Appeal (Civil Division): allowed the appeal on Ground 2, remitting the Regulation 21(3) issue to the Upper Tribunal; dismissed Ground 1. [2020] EWCA Civ 156
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant's appeal on 13 December 2017, finding no error of law in the First-tier Tribunal's decision.
• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appeal against the deportation decision.