In an unusual development, the Secretary of State for the Home Department has conceded that the Court of Appeal erred in Hussein v Secretary of State for the Home Department [2020] EWCA Civ 156. The mistake was in the consideration of the impact of imprisonment on whether someone has achieved permanent resident status under EU law. The written reasons confirming the concession are available on Lexis Nexis using the citation: Hussein v Secretary of State for the Home Department [2022] Lexis Citation 145.

In this case, Mr Hussain had arrived in the UK in 1998. He amassed 24 convictions over a 15-year period, including three stints in custody. In March 2016, the Home Office had had enough and made a deportation order.

The issue arises in the context of the EU law deportation framework. Pre-Brexit, this framework applied to all EEA nationals who were subject to deportation action. However, as Iain explains in this helpful article, the EEA deportation framework is now only relevant to EEA citizens who entered the UK before 31 December 2020 and, even then, only where deportation action is based on crimes committed before that date.

In the Court of Appeal, Mr Hussain won and his deportation appeal was remitted to the Upper Tribunal. The Court of Appeal had said that the First-tier Tribunal had failed to accurately consider and apply the correct test. The issue before the Supreme Court was not whether the Tribunal had accurately applied the test, but if the Tribunal and Court of Appeal had taken the correct approach all together.

The consideration was whether a period in custody automatically breaks a period of 10 year residence in the UK. If he held a period of 10 year residence, then Mr Hussain could benefit from enhanced protection against deportation. The Secretary of State would be required to demonstrate that there was “imperative grounds of public security” that made deportation necessary, as opposed to “serious grounds of public policy or public security”. The latter is an easier threshold to meet. The former is a very demanding test. Imperative grounds are not defined in the EEA Regulations 2016 but are interpreted widely to include, for example, serious criminality such as human, drug or arms trafficking as part of an organised group.

The Secretary of State accepted that, although the First-tier Tribunal had acknowledged that the period of imprisonment did not automatically interrupt the appellant’s continued residence, the court failed to conduct an overall assessment of the impact of the period of custody, as required by the Court of Justice decision in Vomero v SSHD; B v Land Baden-Württemberg Joined Cases C-316/16, C-424/16. The written reasons state that:

Contrary to the view taken by the Court of Appeal, this amounted to a finding that the Appellant was not entitled to enhanced protection under regulation 21(3) based solely on the fact that he had committed offences that are serious enough to warrant imprisonment. The FTT judgment is silent as to any of the other factors referred to at §83 of Vomero CJEU as relevant to the “overall assessment”, including (most saliently) the strength of any integrative links forged prior to detention and/or the Appellant’s conduct while detained. Although the FTT judgment did refer to other matters at a later stage of the reasoning, including as to the Appellant’s level of social and cultural integration in the United Kingdom, it did so in the context of its consideration of the proportionality of the decision to deport rather than in the context of the prior “overall assessment” that it was required to undertake.

It is helpful that the Supreme Court has provided written reasons which confirm the concession made by the Secretary of State. Whilst only relevant to a subset of deportation appeals, the concession will be of crucial importance where it does apply.