In 2014 the Home Office amended the UK’s rules on EU law deportation cases to allow a deportation to go ahead before an EEA national completes any appeal process against that decision to deport. This has become known as “deport first, appeal later”. Similar rules were also introduced for non EU law deportation cases and these were considered by the Court of Appeal in the case of Kiarie (FM blog post: Court of Appeal gives judgment on the “deport first, appeal later” regime). The Upper Tribunal has now turned its mind to the parallel EU law regime in the case of Gheorghiu (reg 24AA EEA Regs – relevant factors) [2016] UKUT 24 (IAC).

The facts of the case involved Mr Gheorghiu, a Romanian national resident and working in the UK since 2002. His wife and three of his children had joined him in the UK 2013 and 2014. While in the UK he had in 2007 committed a single minor driving offence by a Romanian national; he was convicted of driving a motor vehicle with excess alcohol, was fined and disqualified from driving for 20 months. However, in 2014 the Home Office became aware that he had been convicted of rape in 1990 in Romania and of three forestry offences between 2001 and 2002.

The Home Office decided to deport Mr Gheorghiu because of the historic rape conviction. He was deported before his appeal took place. He applied to return to the UK to attend his own appeal hearing under paragraph 29AA of the Immigration (EEA) Regulations 2006 as amended but this application was refused. The appeal nevertheless proceeded and the appeal against deportation was allowed. The judge concluded as follows:

The fact that the appellant has committed previous offences is not a matter which can solely justify deportation; there is no evidence which leads me to find that he is a genuine, present and sufficiently serious threat to one of the fundamental interests of society; his present conduct in the last seven years, has been that of a law abiding and working member of United Kingdom society, exercising treaty rights as a worker. I do not find that deportation is justified on imperative grounds of public security, because there is no evidence which shows that he represents a genuine, present and sufficiently serious threat to public security. The threshold of imperative grounds is a high level of justification for deportation, and I find that the decision made by the respondent in this case has not reached that level.

The Home Office then appealed against this decision. The Upper Tribunal finds that the First-tier judge had fallen into error in finding that Mr Gheorghiu had been lawfully resident for ten years as the facts and law did not support this conclusion. However, this made no difference to the outcome of the appeal, Mr Gheorghiu had clearly acquired permanent residence in the UK and the Home Office appeal was dismissed.

Interestingly, and entirely obiter, the Upper Tribunal goes on to consider the circumstances in which an EEA national who has been deported before the outcome of his or her appeal is known might be re-admitted to attend his or her appeal hearing. At paragraph 22 Blake J finds:

We have no doubt that if an application to suspend certification enabling pre-appeal removal were made in an EEA case, the judge would take due account of the following factors:-

(i) that the status of an EEA national exercising Treaty rights of employment and residence in the host state at the time of the expulsion decision are significantly different from those of aliens generally; interference with the right of residence is not permitted in the absence of a sufficiently serious and present threat to the requirements of public policy, that cannot include in an EU case general deterrence or the interest of maintaining purely domestic immigration control;

(ii) that the removal pending appeal from the communal household of the principal wage earner of the family who (as here) is both a spouse and a parent of a minor child involved in the child’s daily life is itself an interference with both the right to respect for family life under Article 8 and the EU Charter of Fundamental rights and the EU right of residence afforded by the Citizens Directive;

(iii) that in cases of serious criminality, if there is no evidence of continuing risk to the public, the case for expulsion may not be a strong one; where there is some evidence of risk that is being addressed and rehabilitation of the offender is promoted by the family and employment circumstances in the host state, then, at least in the case of people entitled to permanent residence in that state, substantial weight may be afforded to the duty to promote rehabilitation (see Essa (EEA rehabilitation/integration) [2013] UKUT 316 (IAC) as corrected by the Court of Appeal in SSHD v Dumliauskas and others [2015] EWCA Civ 145 at [46] and [54]; see also MC (Portugal) [2015] UKUT 00520 (IAC). Interference with the factors that promote such rehabilitation may not be readily justified.

(iv) that in cases where the central issue is whether the offender has sufficiently been rehabilitated to diminish the risk to the public from his behaviour, the experience of immigration judges has been that hearing and seeing the offender give live evidence and the enhanced ability to assess the sincerity of that evidence is an important part of the fact-finding process (see for example the observations of this Tribunal as to the benefits of having heard the offender in Masih (Pakistan) [2012] UKUT 46 (IAC) at [18]; see also Lord Bingham in Huang [2007] 2 AC 167 at [15]1).

The tribunal goes on to give some very clear guidance on what should happen next in the case of Mr Gheorghiu:

In any event, we consider it is of importance that Mr Gheorghiu is reunited with his family as quickly as possible and the necessary arrangements are made to give effect to this decision within 28 days of its promulgation. His enforced absence from the UK since March 2015 was not voluntary; for reasons found by the judge as corrected by this Tribunal it was not justified, and should not be treated as breaking the continuity of any residence relevant for the acquisition in due course of the right of permanent residence by his wife and children. As noted above, it is accepted that Mr Gheorghiu himself is entitled to a permanent residence on his return and the residence card issued to him will reflect that.

It is easy to understand the politics of why the Home Office pursued deportation and imposed the “deport first, appeal later” certificate in this case. It is rather harder to believe that any qualified lawyer at the Home Office with knowledge of of EU law can have advised that the decision was likely to be lawful.