Hafeez v The Secretary of State for the Home Department

An EEA national seeking enhanced protection from expulsion must have permanent resident status and establish the required ten-year residence ending on the date of the decision. A period of imprisonment cannot count positively towards that period, although it may also affect the continuity and integration assessment. The imperative-grounds threshold is exceptional. The seriousness of offending may begin the inquiry, but removal requires a particularly serious present or future risk to the public or a defined section of it. Under the Immigration (European Economic Area) Regulations 2016, deportation on serious grounds remains proportionate where the tribunal has assessed the individual conduct, risk, integration, ties and rehabilitation prospects.

The appellant, a German national who had lived in the United Kingdom from childhood, was convicted of rape, robbery and dangerous driving and received a seven-year custodial sentence. The Secretary of State decided to deport him under the Immigration (European Economic Area) Regulations 2016.

The First-tier Tribunal dismissed his appeal. It treated him as having permanent residence and, giving him the benefit of doubt, assumed that he also qualified for imperative-grounds protection. The Upper Tribunal upheld that decision. Before the Court of Appeal, the appellant challenged the application of the imperative-grounds and proportionality requirements. The Secretary of State contended that he had neither permanent residence nor ten years’ qualifying residence.

Appeal dismissed unanimously. Lord Justice Bean, with whom Lord Justice Simon and Lady Justice Simler agreed, held that the appellant was entitled to serious-grounds protection but not imperative-grounds protection.

1. The Secretary of State could not fairly advance for the first time in the Court of Appeal a contention that the appellant had never acquired permanent residence. That point had not been distinctly pursued before the First-tier Tribunal, although the appellant could have answered it with evidence about his father’s exercise of Treaty rights. The First-tier Tribunal was therefore entitled to proceed on the basis that permanent residence had been acquired under Regulation 15(1) of the Immigration (European Economic Area) Regulations 2016.

2. Enhanced protection under Regulation 27(4) required the appellant to establish the qualifying ten-year residence. On the proper reading of MG (Portugal), [2014] 1 WLR 2441, imprisonment could not be counted positively for that purpose. The appellant needed three and a half years spent in custody to reach ten years. He therefore failed the requirement on a mathematical basis. The separate question whether imprisonment had broken his integrating links with the United Kingdom did not arise.

3. It was unnecessary to decide whether removal was justified on imperative grounds. The court nevertheless held that the First-tier Tribunal had, albeit by a narrow margin, been entitled to find a particularly serious risk to women, especially sex workers. It had not treated the length or gravity of the sentence as sufficient by itself. Its findings on the appellant’s offending, lack of remorse, limited rehabilitation and risk of reoffending permitted that conclusion.

4. The First-tier Tribunal was also entitled to find serious grounds of public policy or public security under Regulation 27(3), and to find deportation proportionate. It had considered the principles in Regulations 27(5) and 27(6), including the appellant’s United Kingdom ties, ability to integrate in Germany and rehabilitation prospects.

• Court of Appeal (Civil Division): dismissed the appeal unanimously: [2020] EWCA Civ 406.
• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal on 10 January 2019 and upheld the First-tier Tribunal’s decision.
• First-tier Tribunal: dismissed the appeal against the deportation decision on 2 October 2018.