The Court of Appeal’s judgment in Hussein v Secretary of State for the Home Department [2020] EWCA Civ 156 is another reminder of the multiple layers of protection from deportation which EU citizens enjoy. In particular, it focuses on the importance of a properly reasoned decision by the First-tier Tribunal about when deportation meets the “serious grounds of public policy” test in the EEA Regulations.

Mr Hussein is a Dutch citizen who arrived in the UK in 1998. Starting from when he was a teenager, Mr Hussein eventually amassed 24 convictions over a 15-year period. That included three stints in custody. In March 2016, the Home Office had had enough and made a deportation order. 

How does time in jail affect length of residence calculation?

One of the issues posed by the case was whether Mr Hussein was entitled to a higher level of protection because he had been resident for ten years continuously, or whether he was only entitled to a lower level of protection because he had permanent residence. 

EU citizens who have been continuously residence for more than five years but less than ten years can be deported on “serious grounds of public policy and public security”. Those who have resided for ten years or more can only be deported on “imperative grounds of public security”.

The problematic bit is deciding how periods of custody are to be treated. The Court of Appeal said there were four possible answers. Time spent in jailed could be treated as:

(a) being “residence” in the host state just as much as any other; 

(b) interrupting the accrual of time in the sense of pressing a pause button; 

(c) interrupting the accrual of time in the sense of resetting the clock to zero; and 

(d) affecting the accrual of time in a way which requires some overall, non-mathematical assessment.

The court highlighted the confusion because the Court of Justice of the European Union has taken different approaches when looking at deportations based on five years and ten years of residence.

In C-378/12 Onuekwere v Secretary of State for the Home Department, the Court of justice said that in calculating five years’ residence, the clock was reset to zero by periods of imprisonment.

When looking at ten years’ residence, the issue “remains unclear”. In the Vomero case, the Supreme Court had asked the Court of Justice to provide guidance on whether, when looking at ten years’ residence, periods of custody were to be included, but Luxembourg declined to answer that question. So the uncertainty continues. 

Important of integrative links

Mr Hussein argued that time in custody can count towards the ten-year period required for enhanced protection. But the Court of Appeal held that it wasn’t necessary to resolve this point to decide the case. It emphasised that someone claiming ten years’ continuous residence also has to show that he was sufficiently integrated during that ten year period.

I note the wording used by the CJEU in paragraph 83 of Vomero. The aspects of the case that must be taken into account in deciding whether, notwithstanding the detention, the integrative links with the host State have not been broken include “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”.

Mr Justice Bean held that the First-tier Tribunal judge was entitled to conclude that imprisonment had severed Mr Hussein’s integrative links with the UK, irrespective of its effect on the ten-year calculation:

He [the judge] rightly accepted that the criminal convictions and periods of imprisonment do not automatically disqualify an individual from enhanced protection, but they do have a negative effect. As Flaux LJ said in Viscu, a custodial sentence is in general indicative of a rejection of societal values and thus of a severing of integrative links with the host state. Repeated offending attracting a series of custodial sentences of more than trivial length is even more indicative of the same thing. These propositions are not inconsistent with the principle that an EEA national cannot be deported on the basis of criminal offending simply to deter others.

So Mr Hussein lost on this point.

Failure to apply the right legal test

But the appeal succeeded on a separate argument. Even if Mr Hussein was only entitled to the lesser protection of “serious grounds of public policy and public security”, the tribunal had singularly failed to actually consider and apply this test. 

The judge had incorrectly stated the test as whether Mr Hussein’s conduct “represents a present threat to society”. The difference might not seem like much but it is crucial. Bean LJ held that, because of the repeated use of this phrase,

I cannot be satisfied that the FTT Judge, in rejecting Mr Hussein’s appeal based on his status as a permanent resident, was applying the “serious grounds of public policy or public security” test laid down by Regulation 21(3) of the 2006 Regulations.

All too often, the Home Office and tribunal judges deal with all deportation cases using the same broad-brush approach. EU citizens’ status has always been inherently more secure given that they have an entitlement by law to exercise their treaty rights and any interference with that entitlement is considered seriously. The tribunal has an absolute duty to clearly address each and every requirement of the Regulations before allowing EU citizens to be deported.