The Secretary of State for the Home Department v AA (Poland)

When assessing an EU citizen’s protection against expulsion, a tribunal must give effect to the mandatory direction to attach little weight to integrating links formed at or around the time of offending or imprisonment, subject only to exceptional and particularly strong features. Serious sexual offending cannot be treated as less destructive of integration because it was secret, non-violent or accompanied by an outwardly respectable life. Threat seriousness must be assessed without credit for imprisonment, licence conditions, sexual harm prevention orders or notification requirements, and without double-counting those measures through a risk assessment. EU proportionality requires consideration of suitability and necessity, supported by evidence. The expulsion exercise is separate from any Article 8 assessment under Part 5A of the Nationality Immigration and Asylum Act 2002.

The Secretary of State appealed against the Upper Tribunal’s dismissal of an appeal concerning the deportation of AA, a Polish national convicted of serious sexual offences against his infant daughter and sentenced to five years’ imprisonment. The First-tier Tribunal had allowed AA’s appeal under the Immigration (European Economic Area) Regulations 2016 and Article 8 of the Convention. The Upper Tribunal, in case UI-2021-001171, upheld that decision.

The appeal concerned the level of protection applicable to AA, the seriousness of the threat posed by his personal conduct, proportionality under the 2016 Regulations, and whether the human rights assessment had to be conducted separately under Part 5A of the Nationality Immigration and Asylum Act 2002.

The appeal was allowed on all four grounds. Lord Justice Warby gave the judgment, with which Lady Justice Elisabeth Laing and Lord Justice Baker agreed.

1. Level of protection. Regulation 27(8) of the Immigration (European Economic Area) Regulations 2016 required the tribunal to have regard to Schedule 1, while paragraph 4 required little weight to be attached to integrating links formed at or around the time of offending or imprisonment. Applying the reasoning in Rhuppiah v Home Secretary [2018] UKSC 58, the direction allowed only limited flexibility, capable of being displaced in an exceptional case by particularly strong features. The First-tier Tribunal materially erred by giving significant weight to integration during offending and imprisonment.
2. Social integration concerned incorporation into the lawful social structure of the United Kingdom and acceptance of its core values, including the rule of law. The First-tier Tribunal also erred by treating secret, non-violent sexual offending as less destructive of integration than public physical violence. The absence of physical violence or the existence of an outwardly respectable life did not mitigate the rejection of fundamental societal norms.
3. Threat. Restivo (EEA – prisoner transfer) [2016] UKUT 449 (IAC) applied. Imprisonment, licence conditions, sexual harm prevention orders and notification requirements recognised and managed the threat, but their preventive effects were immaterial to the seriousness of the threat itself. The First-tier Tribunal therefore erred by adopting a “real world” assessment which took those measures into account. Its further reliance on measures already reflected in the OASys assessment produced an impermissible double discount.
4. Proportionality. EU proportionality required consideration of suitability and necessity, applying R (Lumsdon) v Legal Services Board [2016] AC 697. The relevant balance was between removal, justified by the threat to fundamental UK interests, and AA’s private-life rights, including rehabilitation. The First-tier Tribunal’s approach was incomplete, and its conclusion about inferior support in Poland was speculative because the evidence did not establish what support would be available there.
5. Human rights. The 2016 Regulations and an Article 8 claim were legally distinct exercises. The Regulations had to be considered first. If removal breached them, it would lack a lawful basis and the Article 8 analysis would end. If removal was lawful, the tribunal had to apply Part 5A of the Nationality Immigration and Asylum Act 2002, including section 117C(6) for a serious offender. The First-tier Tribunal wrongly treated EU proportionality as establishing the very compelling circumstances required by section 117C(6), and wrongly relied on section 117B(1) as supporting retention.

The court’s provisional view was that the Upper Tribunal’s order should be set aside and the case remitted to the First-tier Tribunal for a fresh decision according to law.

1. Court of Appeal (Civil Division): allowed the Secretary of State’s appeal on all four grounds. The court’s provisional view was to set aside the Upper Tribunal’s order and remit the case to the First-tier Tribunal.
2. Upper Tribunal (Immigration and Asylum Chamber), UI-2021-001171: dismissed the Secretary of State’s appeal and held that the First-tier Tribunal had made no material error of law.
3. First-tier Tribunal: allowed AA’s appeal against the deportation decision under the Immigration (European Economic Area) Regulations 2016 and Article 8.