Upper Tribunal (Immigration and asylum chamber), 2024-02-22, UI-2023-003927
| Appeal Number | UI-2023-003927 |
| Hearing Date | 15 February 2024 |
| Date | 22 February 2024 |
| Published date | 19 March 2024 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
Appeal No: UI-2023-003927(EA/51688/2022)
IN THE UPPER TRIBUNAL Case No: UI-2023-003927
IMMIGRATION AND ASYLUM CHAMBER First-tier Tribunal No: EA/51688/2022
THE IMMIGRATION ACTS
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Decision & Reasons Issued: |
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22nd February 2024 |
Before:
THE HON. MR JUSTICE HENSHAW
UPPER TRIBUNAL JUDGE GILL
Between
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The Secretary of State for the Home Department And
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Appellant |
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Myron Francisco Joseph Borges (ANONYMITY ORDER NOT MADE) |
Respondent |
Representation:
For the Appellant: Ms E Everett, Senior Presenting Officer (on 22 November 2023)
Mr P Deller, Senior Presenting Officer (on 15 February 2024)
For the Respondent: Mr S Karim, of Counsel
Heard at Field House on 22 November 2023 and 15 February 2024
DECISION AND REASONS
Introduction
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The Secretary of State appeals, by permission granted by the First-tier Tribunal (“FtT”), against the decision of FtT Judge Rodger (“the judge”), promulgated on 15 August 2023, following a hearing on 4 August 2023. By that decision, the judge allowed the appellant’s appeal, pursuant to section 82 of the Nationality, Immigration and Asylum Act 2002, against a decision dated 22 November 2022 to make a removal decision under regulation 23(6)(b) of the Immigration (European Economic Area) Regulations 2016 (SI 2016/1052) (as saved) (“the 2016 EEA Regulations”).
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For the sake of continuity, we shall refer to the parties as they were before the FtT: we refer to the Secretary of State as “the respondent” and Mr Borges as “the appellant”.
Background facts
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The appellant was born on 22 August 1988 and is now 35 years old. He is a Portuguese national.
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The appellant arrived in the UK on 19 March 2002 at the age of 13. He arrived with his mother and a sibling to join his father, a Portuguese national who had been granted a residence permit on 15 October 2001.
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On 10 May 2002, the father made an application on the appellant’s behalf for a residence card as a family member of an EEA national exercising Treaty rights. The appellant was issued with a residence card on 4 September 2002, which was valid until 15 October 2006.
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The appellant applied on 12 September 2006 for a renewal of his residence card. A new residence card was issued on 13 December 2006, valid until 13 December 2011.
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On 19 June 2007 the appellant, by now aged 18, applied for a permanent residence card. That card was issued on 20 September 2007, and was valid until 20 September 2017.
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The appellant was in prison from February 2011 to March 2012 for two offences of robbery.
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In 2014, the appellant renounced his Indian nationality, surrendered his Indian passport, and obtained a Portuguese passport.
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On 3 June 2019, at Woolwich Crown Court, the appellant was convicted of burglary with intent to steal. He was sentenced to 6 years’ imprisonment. The respondent on 27 November 2019 served notice on the appellant asking him to give reasons why he should not be deported. The appellant submitted representations dated 7 March 2020.
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During the period of his imprisonment, on or shortly before 29 September 2019, the appellant applied for leave to remain in the UK pursuant to the EU Settlement Scheme.
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The appellant was released on licence, at or around the halfway point of his sentence, in October 2022.
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The respondent on 22 November 2022 made a decision to remove the appellant, pursuant to regulations 23(6)(b) and 27 of the 2016 EEA Regulations. The respondent concluded that the appellant was not an EEA citizen who had resided in the UK for a continuous period of 10 years prior to the removal decision, because (i) he had been an EEA national only since 2014 and (ii) his continuity of residence had in any event been interrupted by his imprisonment from 2019 to 2022. Accordingly, his case did not fall within regulation 27(4)(a), which would have required the respondent to show imperative grounds of public security for his removal. However, the respondent accepted that the appellant had exercised Treaty rights as a Portuguese national for 5 years from 2014 until 2019 and had therefore acquired permanent residence as an EEA national. Accordingly, pursuant to regulation 27(3), the respondent considered that the appellant could be removed on serious grounds of public policy or security; and that such grounds existed. In addition, the respondent concluded that removal would not breach the UK’s obligations under Article 8 of the European Convention of Human Rights.
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On the same date, 22 November 2022, the respondent refused the appellant’s application for leave to remain in the UK pursuant to the EU Settlement Scheme. The decision was made on suitability grounds, “because you are subject to a decision to make a deportation order which was made on 22 November 2022”.
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The appellant appealed to the FtT from the deportation decision and, purportedly, from the refusal of leave to remain. Following an oral hearing, at which the FtT heard evidence from the appellant and his partner, the FtT allowed his appeal.
The FtT’s decision
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The FtT concluded that:-
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The continuous period of residence referred to in regulation 27(4)(a) was not limited to the period since 2014, when the appellant became an EEA national. That regulation did not contain any qualification as regards the type of residence required in order to accrue the enhanced protection for which it provided. Here, the appellant had been “living in the UK under EEA leave” since 2002, as a family member of an EU national, and had been granted permanent residence in 2007. Although the judge referred to the appellant “living in the UK with EEA leave”, it is clear that she meant that the appellant had been residing in the UK in accordance with the 2016 EEA Regulations and its predecessor, i.e. the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) which were revoked, with savings, with effect from 1 February 2017 (the “2006 EEA Regulations”).
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The continuous 10-year period had to be calculated backwards from the date of the removal decision, here November 2022.
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Applying regulation 3(4) (see below) and the CJEU case law, it was necessary to decide whether, prior to any imprisonment, the appellant had forged integrating links with the UK, whether the effect of the sentences of imprisonment was such as to break those links, and whether, taking into account an overall assessment of the appellant’s situation, it would be inappropriate to regard the imprisonment as breaking his continuity of residence.
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On the evidence, the appellant had forged significant and weighty links with the UK prior to his first period of imprisonment in February 2011, including having been educated here from age 13 onwards and having spent 9 years continuously and lawfully in the UK, living with his parents, prior to that prison sentence.
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The appellant did not cease to be significantly and sufficiently integrated in the UK when he went into prison in 2011 nor when he came out and until he next offended in 2019.
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The appellant remained strongly integrated to the UK during his second period of imprisonment, and continued to have strong integrative links with the UK following his release from his second period of imprisonment in 2022. He had been employed since his release, had been complying with his probation requirements, and was shortly to commence a Thinking Skills course arranged by his probation officer.
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Overall, it would not be appropriate to treat his imprisonment as having broken his continuity of residence.
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Accordingly the appellant had 10 years’ continuous residence in the UK at the time of the decision in November 2022, and a removal decision could be made only on imperative grounds of public security (regulation 27(4)).
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The respondent had not put forward any imperative grounds for the removal, in either the refusal letter or oral submissions at the hearing. The FtT found there to be no such grounds.
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The key provisions
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Recitals (23) and (24) to Directive 2004/38 state:
“(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in...
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