Official headnote for MG (prison-Article 28(3) (a) of Citizens Directive) Portugal [2014] UKUT 00392 (IAC):

(1) Article 28(3)(a) of Directive 2004/38/EC contains the requirement that for those who have resided in the host member state for the previous 10 years, an expulsion decision made against them must be based upon imperative grounds of public security.

(2) There is a tension in the judgment of the Court of Justice of the European Communities in Case C-400/12 Secretary of State v MG in respect of the meaning of the “enhanced protection” provision.

(3) The judgment should be understood as meaning that a period of imprisonment during those 10 years does not necessarily prevent a person from qualifying for enhanced protection if that person is sufficiently integrated. However, according to the same judgment, a period of imprisonment must have a negative impact in so far as establishing integration is concerned.

The appellant succeeded on the facts of the case, and under the ‘baseline’ level of protection against deportation in EU law, merely whether there are grounds of public policy or public security. Of course, that does not stop the tribunal from going on and giving its opinion on other matters entirely obiter dicta. What else are the Upper Tribunal’s reported cases for other than a good bit of obiter?

This area of law has become a bit of a dog’s breakfast (the fault of the Court of Justice) and the tribunal indicates at the end of the determination that it is ripe for consideration by the Court of Appeal.

My colleague Leonie Hirst, now back from her epic walk, acted for the Claimant.