In Secretary of State for the Home Department v AA (Poland) [2024] EWCA Civ 18 the Court of Appeal has allowed the Home Secretary’s appeal in relation to an EEA national serious sex offender who had been in the UK for 15 years at the time of the Home Office decision to deport.

Transitional protections against deportation for EEA nationals post-Brexit

Under pre-Brexit rules EEA nationals had significantly higher protection from deportation following the commission of a criminal offence. For EEA national offenders resident in the UK before Brexit and where their criminal conduct took place prior to 31 December 2020, those protections remain in place.

As we explain here, that framework provides increasing levels of protection against deportation offenders depending on – broadly – their length of residence in the UK. Where the framework applies and an EEA national has been in the UK for a continuous period of 10 years prior to the making of the deportation decision, the Home Secretary must show that deportation is justified on “imperative grounds of public security”.

However, the courts have found that a period of imprisonment may be considered to break the 10 year “continuous period”. The Home Secretary will regularly argue that the imperative grounds test does not apply because the sentence of imprisonment means the 10 year period has not been “continuous”.

If it is found that the correct test is one of “imperative grounds”, then it is an exacting one to meet, and the Home Secretary will face an uphill struggle in most cases where it is found to apply.

In making the assessment of whether the continuous period has been breached, the key question is whether any integrative links forged in the country prior to imprisonment are broken by the time in custody: B (Citizenship of the European Union – Right to move and reside freely – Enhanced protection against expulsion) [2018] EUECJ C-316/16 (para 83).

The span of years over which courts have considered and given guidance on the correct interpretation of the test is significant (at least since Tsakouridis (European citizenship) [2010] EUECJ C-145/09, and his pancake stall in Rhodes).

It is surprising, given the frequency with which the issue has arisen, that there continues to be such judicial variety in approach.

The Court of Appeal’s decision in AA (Poland)

Such variety was on full display in the recent case of Secretary of State for the Home Department v AA (Poland) [2024] EWCA Civ 18. Both the First-tier Tribunal and the Upper Tribunal found that the applicable threshold was “imperative grounds” and that, although his offending was extremely serious, AA’s case did not cross it.

The Court of Appeal disagreed with this assessment, relying heavily – and, it seems, exclusively – on the absence of substantive consideration by either of the tribunals below of paragraph 4 of schedule 1 of the Immigration (EEA) Regulations 2016 (as saved), which states that:

Little weight is to be attached to the integration of an EEA national … if the alleged integrating links were formed at or around the same time as … the commission of a criminal offence

The Court of Appeal found that “the issue for consideration was the degree of integration achieved by AA in the ten years prior to the Decision in December 2020”.

This approach appears to be at variance with the guidance given by the CJEU in B, which assumes a level of integration, and really then focusses on the extent to which this integration is disrupted by imprisonment (para 83):

in the case of a Union citizen who is serving a custodial sentence and against whom an expulsion decision is adopted, the condition of having ‘resided in the host Member State for the previous ten years’ … may be satisfied where … the integrative links between the person concerned and the host Member State have not been broken.

The decision-maker should take into account all the relevant aspects of a person’s situation, including:

the strength of the integrative links forged with the host Member State before the detention of the person concerned, the nature of the offence that resulted in the period of detention imposed, the circumstances in which that offence was committed and the conduct of the person concerned throughout the period of detention

Despite this guidance, the Court of Appeal also found that the First-tier Tribunal fell into error because it had “attached real and significant weight to AA’s conduct when in prison” which was inconsistent with paragraph 4 of Schedule 1.

Although other errors of law were found, it is unlikely they would have been material had the Court of Appeal agreed that the “imperative grounds” threshold applied. The case was remitted back to the First-tier Tribunal for hearing afresh.

Conclusion

The Court of Appeal’s decision appears to be a departure from the type of assessment recommended by the court in B, which specifically states that the conduct of the person while in prison is relevant (highlighted above). It seems likely that we may yet see further litigation on this point.