Upper Tribunal clarifies position on deportation of EU nationals for pre and post-Brexit conduct

The Upper Tribunal has said that the enhanced protection against deportation of European nationals is available where there is criminal conduct covering both the pre and post-Brexit periods. The tribunal clarified the definition of deportation order at subsection (b) in Annex 1 of Appendix EU, relevant for the purposes of a refusal on suitability grounds under paragraph EU15(1). The correct definition will depend on whether the relevant conduct was before 31 December 2020, or after that date, or spanned both periods. The case is Castro (Appendix EU, “deportation order”) Portugal [2024] UKUT 393 (IAC).

The headnote is as follows:

1.       The definition of “deportation order” in paragraph (b) of Annex 1 to Appendix EU of the Immigration Rules must be read as follows (emphasis added):

“(b) an order made under section 5(1) of the Immigration Act 1971 by virtue of section 3(5) or section 3(6) of that Act in respect of:

(i) conduct committed after the specified date; and/or

(ii) conduct committed by the person before the specified date, where the Secretary of State has decided that the deportation order is justified on the grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations, irrespective of whether the EEA Regulations apply to the person (except that in regulation 27 for “with a right of permanent residence under regulation 15” and “has a right of permanent residence under regulation 15” read “who, but for the making of the deportation order, meets the requirements of paragraph EU11, EU11A or EU 12 of Appendix EU to the Immigration Rules”; and for “an  EEA decision” read “a deportation decision”); or”

2.       The time period of the conduct relied upon by the Respondent will dictate whether BOTH sub-paragraph (i) and (ii) will apply (if conduct committed both before and after the specified date is relied upon) or whether paragraph (i) or (ii) will apply (if only conduct committed EITHER before or after the specified date is relied upon).