Home Secretary succeeds in EEA national deportation appeal

The Home Secretary has successfully appealed a tribunal decision that when calculating the ten year period of continuity of residence for the purposes of deportation of an EEA national, time spent as the non-EEA national family member can be included. The case is Secretary of State for the Home Department v Borges [2025] EWCA Civ 784.

Background

Mr Borges moved to the UK as an Indian national in 2002, relying on his status as the family member of his father, a Portuguese citizen exercising treaty rights in the UK under the EEA Regulations. Mr Borges was issued with a residence card in September 2002 which he renewed in September 2006. In 2007 he was issued with a permanent residence card. In 2014 he renounced his Indian citizenship and acquired Portuguese citizenship.

Mr Borges was convicted of dangerous driving, using a vehicle without insurance and handling stolen goods in 2008 and sentenced to 30 weeks’ custody in a youth offenders’ institute. In 2011 he was convicted of robbery and sentenced to 21 months’ imprisonment. A deportation decision was made but Mr Borges successfully appealed.  

In 2019 Mr Borges was convicted of further offences and another deportation decision was made. In the meantime, he had applied for leave under the EU Settlement Scheme but this was refused on suitability grounds.

The Home Secretary accepted that Mr Borges had obtained a permanent right of residence under the EEA Regulations which meant that deportation could only take place “on serious grounds of public policy and public security”. It was not accepted that he had been continuously resident in the UK for ten years, which would have afforded him additional protections against deportation as “imperative grounds of public security” were required.

The Home Secretary’s position was that when Mr Borges renounced his Indian nationality, he “lost any right of residence that he had acquired based on [his] status as a non-EEA family member”. His continuity of residence had also been broken through periods spent in prison in 2011 to 2012 and 2019. It was concluded that he had committed serious criminal offences and there was a real risk that he would do so again and so deportation was justified on public policy grounds.

Mr Borges appealed, and the First-tier Tribunal held that the ten year period started when he arrived in 2002. The tribunal also held that imprisonment alone would not mean that those periods were discounted from the ten years, and that there had to be an overall assessment which took into account factors including his integration into the UK. It was held that he “continued to have significant and weighty integrating links with his family in the UK after eachperiod of imprisonment” such that his continuous residence had been maintained for ten years and he could only be deported on imperative grounds of public security, a threshold that was not met here.

The Home Secretary appealed to the Upper Tribunal which dismissed the appeal, deciding that continuous residence for deportation purposes included time spent as the non-EEA national family member. The Upper Tribunal found no error of law in the First-tier Tribunal’s conclusion that there were no “imperative grounds of public security”.

The Court of Appeal 

The Home Secretary had two grounds of appeal against the Upper Tribunal’s decision and the issues were summarised as follows:

1. What level of protection does Mr Borges have against removal? There is no dispute that Mr Borges had resided in the United Kingdom throughout the ten years before the Decision. The Secretary of State’s case is that in order to benefit from the highest level of protection against removal, Mr Borges had to be a citizen of an EU member state throughout that period. Mr Borges’s case is he has that that protection because (i) he had resided in the UK for that period and (ii) he had become a citizen of an EU member state during that period. If his argument is right, a person who has resided in the United Kingdom for that period as a non-EU citizen, but who becomes a citizen of an EU member state on the day before a removal decision, would benefit from that protection.

2. If Mr Borges succeeds on the first issue, did the F-tT err in law in its approach to the test for removal which did apply in his case?

On the first point, the Court of Appeal agreed with the Home Secretary, stating that it is clear from the distinctions drawn in the Directive between the groups that the status of “citizenship of the Union” is not conferred by the treaty on third country nationals who are family members of EEA nationals [at 112]. The Home Secretary’s appeal was allowed.

The appeal was also allowed on the second point and the appeal remitted to the First-tier Tribunal to consider whether there are serious grounds of public policy in this case, as the point was not previously addressed in light of the findings on continuous residence.

Conclusion

It should be noted that, although not forming part of the appeal, the court went on to make a point of saying that it did not approve of the First-tier Tribunal’s finding in relation to Mr Borges’ integration into the UK, nor its approach to his continuity of residence.