Secretary of State for the Home Department v Jose Paulo Castro

Where a deportation decision relies on conduct committed both before and after the specified date, paragraph (b) of the definition of “deportation order” in Annex 1 to Appendix EU must be read with “and/or” between sub-paragraphs (i) and (ii). The decision-maker must therefore satisfy the requirements applicable to each period of conduct relied upon. Reading the alternatives otherwise would remove the safeguards retained for pre-specified-date conduct.

A material factual error which repeatedly informs the assessment of present risk under regulation 27 can invalidate the assessment of threat and proportionality. A consequential Article 8 decision founded wholly on that defective assessment must also be set aside.

The Secretary of State appealed against the decision of the First-tier Tribunal, promulgated on 7 February 2024, which had allowed Mr Castro’s appeals against a deportation and human-rights decision and against the refusal of his application under the EU Settlement Scheme.

Mr Castro, a Portuguese national, had convictions both before and after 23:00 on 31 December 2020. The First-tier Tribunal held that he had five years’ continuous residence and that the deportation order did not meet the relevant definition in Appendix EU because serious grounds of public policy or security had not been established under regulation 27.

The central issues were the construction of the definition of “deportation order”, and whether an erroneous calculation of the period without further offending undermined the assessment of present threat, proportionality and Article 8.

1. The Secretary of State’s appeal succeeded in part. The Upper Tribunal upheld the First-tier Tribunal’s construction of Appendix EU but set aside its findings on risk, proportionality and Article 8 because of a material factual error.

2. Paragraph (b)(i) concerns conduct after the specified date and paragraph (b)(ii) concerns conduct before it. Although the limbs are separated by “or”, they address factual scenarios which may overlap. Where the decision-maker relies on conduct in both periods, the definition must be read as containing “and/or”. Both limbs must then be satisfied. This construction preserves the safeguards applicable to pre-specified-date conduct and does not prevent reliance on the separate post-specified-date suitability ground in paragraph EU15(2) of Appendix EU.

3. The Tribunal followed the established approach to construing the Immigration Rules in Mahad v Entry Clearance Officer [2009] UKSC 16 and Wang v Secretary of State for the Home Department [2023] UKSC 21. Its conclusion was also consistent with Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 00066 (IAC) and the distinction between pre- and post-specified-date conduct noted in Vargova (EU national: post 31 December 2020 offending: deportation) [2024] UKUT 00336 (IAC).

4. The First-tier Tribunal had repeatedly treated the period since the last offence or conviction as two years. It was in fact about eighteen months from the last offence and one year and four months from the last conviction. The interval without offending was not determinative by itself, but the error materially infected the assessment of whether Mr Castro remained a persistent offender and posed a genuine, present and sufficiently serious threat. The related proportionality assessment could not stand.

5. The Tribunal rejected the remaining complaints about escalation and public revulsion as largely disagreements with the weight given to the evidence. It observed that further offending does not, without more, establish escalating seriousness. The Article 8 outcome depended entirely on the defective EUSS findings and was also set aside. The appeal was retained in the Upper Tribunal for remaking.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed in part. The First-tier Tribunal’s decision was set aside on the assessment of risk, proportionality and Article 8, but its construction of Appendix EU was upheld. The matter was retained for remaking.
• First-tier Tribunal: Allowed Mr Castro’s appeals against the deportation and human-rights decision and the refusal of his EU Settlement Scheme application.