Secretary of State for the Home Department v Myron Francisco Joseph Borges

Enhanced protection against expulsion under article 28(3)(a) of Directive 2004/38/EC and regulation 27(4) of the Immigration (European Economic Area) Regulations 2016 requires the person to have been an EU or EEA citizen throughout the relevant ten-year residence period. Residence accumulated only as a third-country national family member does not qualify, even if citizenship is later acquired.

The serious-grounds and imperative-grounds public-security tests involve the same relevant factors. The difference is the required degree of seriousness. A tribunal applying either test must have regard to regulation 27(8) and Schedule 1. An appellate tribunal cannot remake a decision without first identifying and setting aside a material error of law. The appeal was allowed and remitted.

The Secretary of State appealed against determination 3 of the Upper Tribunal (Immigration and Asylum Chamber), which had dismissed the Secretary of State’s appeal from the First-tier Tribunal’s decision allowing Mr Borges’s appeal against a deportation order.

Mr Borges arrived in the United Kingdom in 2002 as the Indian national family member of a Portuguese citizen. He acquired Portuguese citizenship in 2014. Following serious convictions, including offences for which he was sentenced to six years’ imprisonment, the Secretary of State made a deportation decision on 22 November 2022.

The First-tier Tribunal held that Mr Borges had ten years’ continuous residence and was entitled to the highest protection against removal. The Upper Tribunal upheld that conclusion and also decided that there were no imperative grounds of public security. The central issues were whether residence before acquisition of EU citizenship could count towards the ten-year period, and whether the tribunals had lawfully addressed the applicable removal test.

1. Ground 1 allowed. Article 28(3)(a) of Directive 2004/38/EC and regulation 27(4) of the Immigration (European Economic Area) Regulations 2016 must be construed in the light of the Directive’s wording and purpose. Enhanced protection is available only to a person who has been a Union citizen throughout the relevant ten-year period and who has acquired the requisite right of permanent residence as a Union citizen. Residence as a third-country national family member is based on derivative rights and cannot satisfy that requirement.
2. The protection scheme is cumulative. The highest protection presupposes the earlier acquisition of permanent residence as a Union citizen. The increased protection reflects integration resulting from the exercise of Treaty rights and longer residence in the host state.
3. Ground 2 allowed. The factors relevant to the serious-grounds and imperative-grounds tests are the same. The imperative-grounds test requires those factors to be present in a stronger form. The First-tier Tribunal was required by regulation 27(8) to have regard, in particular, to Schedule 1, whichever threshold applied, and to give reasons. Having applied the higher threshold, it failed to do so and thereby erred in law.
4. The Upper Tribunal should first have determined whether the First-tier Tribunal had made a material error of law and, if so, set aside its decision before remaking it. Its purported assessment of imperative grounds, without doing so, was unlawful. The case was remitted to the First-tier Tribunal to determine whether serious grounds of public policy existed. The judgment did not approve the First-tier Tribunal’s approaches to integration or continuity of residence.

• Court of Appeal (Civil Division): Appeal from determination 3 of the Upper Tribunal allowed on both grounds. The case was remitted to the First-tier Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal from the First-tier Tribunal was dismissed. The Upper Tribunal held that residence before acquisition of Portuguese citizenship could count towards enhanced protection and concluded that there were no imperative grounds of public security.
• First-tier Tribunal (Immigration and Asylum Chamber): Mr Borges’s appeal against the deportation decision was allowed. The tribunal held that he had ten years’ continuous residence and could only be removed on imperative grounds of public security.