Hussein v Secretary of State for the Home Department

The Appellant was born in Somalia on 1 January 1984. In 1994, he travelled from Somalia to join his father in the Netherlands, where he and his father were naturalised as Dutch citizens. The Appellant’s father came to the United Kingdom in 1997 and the Appellant joined him here in December 1998. The Appellant claims to have resided continuously in the United Kingdom since that date. He also claims to have developed substantial connections in the United Kingdom which, at the time of the First-Tier Tribunal hearing, included his ten year-old child with his ex-wife, his second wife and two stepchildren, and his father and other relatives.

The Appellant has been convicted of numerous criminal offences since 2000. These are set out in Schedule 1 to this judgment. As Upper Tribunal (“UT”) Judge Rimington set out at paragraph [14] of her judgment:

“The appellant has had three periods in custody. First, following a conviction for robbery on 4 December 2000, he was sentenced to three years’ confinement in a youth offender’s institution serving eighteen months in custody prior to release on 4 June 2002. Secondly, the appellant was sentenced to nineteen months in aggregate following conviction on 16 October 2012 and he served nine and a half months in custody before being detained under immigration powers for a further seven months. Thirdly on 10 June 2015 the appellant was convicted of possession of an offensive weapon in a public place and other offences and sentenced to thirteen months’ imprisonment. In total he was in custody for seven months.”

On 23 March 2016, the Respondent made a deportation order against the Appellant under Regulation 19(3)(b) of the Immigration (European Economic Area) Regulations

The Appellant exercised his right of appeal to the First-Tier Tribunal (Immigration and Asylum Chamber) (“the FTT”) under section 82(1) of the Nationality, Immigration and Asylum Act 2002. FTT Judge Cassel dismissed his appeal. The Appellant subsequently appealed to the UT but his appeal was dismissed by UT Judge Rimington on 13 December 2017. On 20 March 2019, Sir Stephen Silber granted permission to appeal to this court on the grounds that the FTT and UT had failed to address adequately the level of protection owed to the Appellant by virtue of his (a) permanent residence or (b) ten years continuous residence.

There were two issues before us. The first was whether the Appellant had ten years continuous residence to bring Regulation 21(4) into play, so that his deportation had to

At the UT hearing, there was some discussion about whether the 2006 or the 2016 Regulations applied. The Immigration (European Economic Area) Regulations 2016 came into force in February 2017, prior to the FTT hearing and the FTT Judge’s decision. The UT Judge proceeded on the basis that the 2006 Regulations still applied because Schedule 4 to the Immigration (European Economic Area) (Amendment) Regulations 2017 (No.1) states that the 2006 Regulations apply to pending appeals. It was not in dispute before us that that conclusion was correct. There was also no suggestion by either party that the UK’s withdrawal from the European Union and the EEA on 31 January 2020 could make any difference to the outcome of this appeal.

The 2006 Regulations were enacted to give effect to EU Directive 2004/38/EC. The relevant Articles in the Directive provide:

“16.

General Rule for Union Citizens and their family members

1.

Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

2.

Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

3.

Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

4.

Once acquired, the right of permanent resident shall be lost only through absence from the host Member State for a period exceeding two consecutive years.

…

27: General principles

1.

Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public scrutiny or public health. These grounds shall not be invoked to serve economic ends.

2.

Measures shall be taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

…

28.

Protection against expulsion.

1.

Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

2.

The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who the right of permanent residence on its territory, except on serious grounds of public policy or public security…..

3.

An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States if they:

(a)

have resided in the host Member State for the previous 10 years…”

Regulation 15(1) of the 2006 Regulations states that an EEA national has a permanent right of residence if he has resided in the United Kingdom for a continuous period of five years.

“Permanent right of residence

15.

(1) The following persons shall acquire the right to reside in the United Kingdom permanently—

(a)

an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;”

Regulation 19(3) sets out the power to exclude and remove individuals currently residing in the United Kingdom on the grounds of “public policy, public security or public health”.

“Exclusion and removal from the United Kingdom

19.—(3) Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if—

(a)

he does not have or ceases to have a right to reside under these Regulations; or

(b)

he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.”

Regulations 21(3) and 21(4) set out the protections afforded to individuals who have permanent residence or ten years continuous residence. Regulation 21(5) requires the deportation to be proportionate and sets out considerations which must not form the basis of the decision. Regulation 21(6) requires the decision-maker to take into account the personal circumstances of the individual.

“Decisions taken on public policy, public security and public health grounds

21.—

(1)

In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.

(2)

A relevant decision may not be taken to service economic ends.

(3)

A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.

(4)

A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—

(a)

has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or

(b)

is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989(1).

(5)

Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—

(a)

the decision must comply with the principle of proportionality;

(b)

the decision must be based exclusively on the personal conduct of the person concerned;

(c)

the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d)

matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e)

a person’s previous criminal convictions do not in themselves justify the decision.

(6)

Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person’s length of residence in the United Kingdom, the person’s social and cultural integration into the United Kingdom and the extent of the person’s links with his country of origin.”

[subparagraph [7] concerns decisions on the grounds of public health and is not relevant for present purposes]

To obtain a permanent right of residence under Regulation 15, and thus obtain the protection of Regulation 21(3), an individual needs to be resident in the host state for a continuous period of five years. These need not be the five years immediately prior to the expulsion decision: MG(Portugal) v Secretary of State for the Home Department (Case C-400/12) [2014] 1 WLR 2441 at [24]. On the other hand, it is apparent from the wording of Regulation 21(4)(b) that the ten year period for obtaining enhanced protection must be calculated by counting back from the date of the decision ordering the expulsion of the person concerned: see MG(Portugal) at[28].

That much is clear: but what of the effect of periods in custody? Logically the possibilities are to treat such periods 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, nonmathematical assessment.

The jurisprudence of the CJEU seems to have led to the position that the effect of a term of imprisonment appears to be different depending on whether one is looking at

But for the ten year period under Article 28(3)(a) the position is more complicated. In MG (Portugal) the CJEU said that if an individual is imprisoned during the ten years prior to the expulsion decision, this will “in principle” interrupt continuity of residence and that an “overall assessment” is required. The Court set out the rationale behind that conclusion at [32] -[33]:

“32.

Since the degree of integration of the persons concerned is a vital consideration underpinning both the right of permanent residence and the system of protection against expulsion measures established by Directive 2004/38, the reasons making it justifiable for periods of imprisonment not to be taken into consideration for the purposes of granting a right of permanent residence or for such periods to be regarded as interrupting the continuity of the period of residence needed to acquire that right must also be borne in mind when interpreting Article 28(3)(a) of that Directive.

33.

It follows that periods of imprisonment cannot be taken into account for the purposes of granting the enhanced protection provided for in Article 28(3)(a) of Directive 2004/38 and that, in principle, such periods interrupt the continuity of the period of residence for the purposes of that provision.”

(For a powerful analysis of the contradictions in these two paragraphs, see the judgment of the Upper Tribunal in the MG(Portugal) case when it returned to this jurisdiction: [2015] INLR 312.)

It remains unclear whether time in custody can be counted towards an individual’s ten years residence. This was an issue raised in the Vomero case, in which a deportation decision taken in March 2007 was still being litigated 12 years later. It was heard the first time by the UK Supreme Court in 2016 (FV (Italy) v Secretary of State for the Home Department [2017] 1 All ER 999) where Lord Mance said at [20]:

“In summary, the continuous period of five years’ legal residence to which art 16(1) refers may have occurred at some time in the past. Once acquired from or after 30 April 2006, a right of permanent residence continues, unless lost under, or by analogy with, art 16(4). The residence referred to in art 28(3)(a) must, in contrast, have been ‘for the previous ten years’, previous that is to (here) the decision to deport. The calculations under arts 16(1) and 28(3)(a) are different: see MG para 37 and Advocate General Bot’s opinion, para 28 in Onuekwere. But how different is not clear. The five-year period is expressly required to be continuous, and is (it seems) broken by any period of imprisonment, but will, once acquired, only be lost by absence (or, it may be, imprisonment) lasting two years. The ten-year previous period is, in contrast, only ‘in principle’ continuous, and may be non-continuous, where, for example, interrupted by a period of absence or imprisonment. Whether the ten years is to be counted by including or excluding any such period of interruption is however unclear.”

The Supreme Court thereforereferred (among others) the following question to the CJEU:

“(2)

whether the period of residence for the previous ten years, to which article 28(3)(a) refers, is (a) a simple calendar period looking back from the relevant date (here that of the decision to deport), including in it any periods of absence or imprisonment, (b) a potentially non-continuous period, derived by looking back from the relevant date and adding together period(s) when the relevant person was not absent or in prison, to arrive, if possible, at a total of ten years previous residence.”

The CJEU held that it was unnecessary to answer this question in the light of its conclusion on a different question. Hence the continuing uncertainty. As to whether time in custody can count towards the ten year period. Mr Fripp, counsel for the Appellant, conceded before the FTT and UT that it does not count, but submits that in the light of recent jurisprudence of the CJEU that concession is no longer correct. On the view I take of the other issues before us (see below) this point would not affect the result in any event, and it is therefore unnecessary to decide whether to allow the concession to be withdrawn.

However, what does emerge clearly from MG (Portugal) is that whether or not a period of imprisonment cancount towards the ten years, an individual claiming enhanced protection who has served time in custody must prove both that he had ten years’ continuous residence ending with the date of the decision on a mathematical basis and that he was sufficiently integrated within the host state during that ten year period. After all, if the calculation were simply an arithmetical exercise the phrase “overall assessment” would be inappropriate. As the CJEU had held in Land BadenWurttemberg v Tsakouridis (Case C-145/09) [2011] INLR 415, the question is whether the individual’s “integrative links” within the host state have been broken by the interruption. The factors to be taken into account in this “overall assessment” were set out at paragraphs [33] to [34] of the court’s judgment in Tsakouridis:

“33.

The national authorities responsible for applying Article 28(3) of Directive 2004/38 are required to take all the relevant factors into consideration in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State. It must be ascertained whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned.

34.

The fact that the person in question has been the subject of a forced return to the host Member State in order to serve a term of imprisonment there and the time spent in prison may, together with the factors listed in the preceding paragraph, be taken into account as part of the overall assessment required for determining whether the integrating links previously forged with the host Member State have been broken.”

In MG (Portugal) the CJEU applied these factors to interruptions caused by custody as opposed to absence:

“35.

As for the question of the extent to which the noncontinuous nature of the period of residence during the 10 years preceding the decision to expel the person concerned prevents him from enjoying enhanced protection, an overall assessment must be made of that person’s situation on each occasion at the precise time when the question of expulsion arises (see, to that effect, Tsakouridis, paragraph 32).

36.

In that regard, given that, in principle, periods of imprisonment interrupt the continuity of the period of residence for the purposes of Article 28(3)(a) of Directive 2004/38, such periods may – together with the other factors going to make up the entirety of relevant considerations in each individual case – be taken into account by the national authorities responsible for applying Article 28(3) of that directive as part of the overall assessment required for determining whether the integrating links previously forged with the host Member State have been broken, and thus for determining whether the enhanced protection provided for in that provision will be granted (see, to that effect, Tsakouridis, paragraph 34).”

This approach was recently confirmed by the CJEU in the joined references in B v Land Baden-Württemberg (C-316/16) and the Vomero case (C-424/16) [2019] QB 126. At paragraph [70], the Court considered the effect of periods of imprisonment:

“70.

As to whether periods of imprisonment may, by themselves and irrespective of periods of absence from the host Member State, also lead, where appropriate, to a severing of the link with that State and to the discontinuity of the period of residence in that State, the Court has held that although, in principle, such periods of imprisonment interrupt the continuity of the period of residence, for the purpose of Article 28(3)(a) of Directive 2004/38, it is nevertheless necessary — in order to determine whether those periods of imprisonment have broken the integrative links previously forged with the host Member State with the result that the person concerned is no longer entitled to the enhanced protection provided for in that provision — to carry out an overall assessment of the situation of that person at the precise time when the question of expulsion arises. In the context of that overall assessment, periods of imprisonment must be taken into consideration together with all the relevant factors in each individual case, including, as the case may be, the circumstance that the person concerned resided in the host Member State for the 10 years preceding his imprisonment (see, to that effect, judgment of 16 January 2014 [in MG] at paragraphs 33 to 38).”

The CJEU went on to consider the factors relevant in the “overall assessment”:

“72.

As part of the overall assessment, mentioned in paragraph 70 above, which, in this case, is for the referring court to carry out, it is necessary to take into account, as regards the integrative links forged by B with the host Member State during the period of residence before his detention, the fact that, the more those integrative links with that State are solid — including from a social, cultural and family perspective, to the point where, for example, the person concerned is genuinely rooted in the society of that State, as found by the referring court in the main proceedings — the lower the probability that a period of detention could have resulted in those links being broken and, consequently, a discontinuity of the 10-year period of residence referred to in Article 28(3)(a) of Directive 2004/38.

73.

Other relevant factors in that overall assessment may include, as observed by the Advocate General in points 123 to 125 of his Opinion, first, the nature of the offence that resulted in the period of imprisonment in question and the circumstances in which that offence was committed, and, secondly, all the relevant factors as regards the behaviour of the person concerned during the period of imprisonment.

74.

While the nature of the offence and the circumstances in which it was committed shed light on the extent to which the person concerned has, as the case may be, become disconnected from the society of the host Member State, the attitude of the person concerned during his detention may, in turn, reinforce that disconnection or, conversely, help to maintain or restore links previously forged with the host Member State with a view to his future social reintegration in that State.

………………………….

83.

In the light of all the foregoing, the answer to the first three questions in Case C:316/16 is that Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that, in the case of a Union citizen who is serving a custodial sentence and against whom an expulsion decision is adopted, the condition of having

‘resided in the host Member State for the previous ten years laid down in that provision may be satisfied where an overall assessment of the person’s situation, taking into account all the relevant aspects, leads to the conclusion that, notwithstanding that detention, the integrative links between the person concerned and the host Member State have not been broken. Those aspects include, inter alia, 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.”

The decision of this court in Secretary of State for the Home Department v Viscu [2019] EWCA Civ 1052 was given after the FTT and UT had given their decisions in the present case. Flaux LJ summarized the principles established by the CJEU jurisprudence in relation to custodial sentences as including:

“44.

… (i) that the degree of protection against expulsion to which a Union national resident in another member state is entitled under the Directive is dependent upon the degree of integration of that individual in the member state; (ii) that, in general, a custodial sentence is indicative of a rejection of societal values and thus of a severing of integrative links with the member state; but (iii) that the extent to which there is such a severing of integrative links will depend upon an overall assessment of the individual’s situation at the time of the expulsion decision.”

FTT Judge Cassel summarised the Respondent’s original expulsion decision at paragraphs [5] to [7] of his judgment:

“5.

It was accepted that he had been resident in the UK in accordance with the regulations although he had had not applied nor held a permanent right of residence card. Consideration was then given as to whether his deportation was justified on serious grounds of public policy or public security and it was concluded that by reason of the periods of imprisonment any residency accrued in the UK had been broken. It was decided that consideration was not required as to whether his deportation was justified on imperative grounds of public security.

6.

Under Regulation 21(5) consideration was given to the assessment of threat and it was concluded that in the absence of any improvement in his personal circumstances that he had failed to address the issues that had prompted him to offend and it was considered reasonable to conclude that there remains a risk of re-offending and that he continued to pose a risk of harm to the public and that the evidence showed that he had a propensity to re-offend.

7.

Proportionality was taken into account under Regulation 21(5)(a) and consideration was given to his personal circumstances. Reference was made to his age, that he had a UK born child who was in the care of his ex-wife, that he suffered from mental health illness, was partially blind and was receiving medications for his condition. Consideration was also given to a relationship he had with a British national who is also in the UK and the fact that most of his family members are in the UK. It was concluded that there had been no evidence to substantiate his claim that there is a degree of emotional dependency between him and his family members beyond the normal emotional ties and that he continued to pose a significant threat and that should he re-offend it would be of a similar or more serious nature and that his deportation is justified on grounds of public policy.”

FTT Judge Cassel said at paragraph [24] of his judgment:-

“24.

The appellant as a citizen of the Netherlands is an EEA national. The deportation of an EEA national exercising treaty rights is subject to specific rules which provide both procedural safeguards and a more rigorous justification for deportation. The relevant Council Directive 2004/3H/EC has been transposed into domestic law by the 2006 Regulations. These provide that those EEA Nationals who would otherwise be entitled to enter or remain in the United Kingdom under the 2006 Regulations may only be removed on the grounds of public policy, public security or public health in accordance with regulation 19 (3) (b) o the 2006 Regulations. Regulation 24 (3) provides that such persons are to be treated as if they are persons to who s3 (5) (a) of the Immigration Act 1971 applies.”

After citing Regulation 19(3) of the 2006 Regulations the judge continued at [26]:-

“26.

The Respondent maintains that the Appellant’s continued presence in the United Kingdom poses a genuine, present and sufficiently serious threat to the interest of public policy that his deportation is justified under Regulation 21 which insofar as relevant to this appeal is as follows.”

The judge went on to set out the text of Regulation 21 (1) – (6) except that instead of setting out the text of Regulation 21 (4) he simply put “n/a”.

At [27] - [28] the judge continued :

“27.

As a first step I have to decide if the Appellant is resident in the United Kingdom as a “qualified person” in accordance with regulation 6 of the 2006 Regulations or has acquired permanent residence under regulation 15. He has to establish his status on the balance of probabilities. The Appellant claims to have resided in the United Kingdom for some time. The Respondent maintains that he is unable to show 10 years continuous residence, and that no precise details in evidence have been provided. The onus is upon him on the balance of probabilities to establish that to be the case. Documents have been produced that show periods of residence and court appearances, and indeed professional appointments referred to in reports and correspondence and in other documents which appear to show that he has been in the UK for substantial periods. However, there is simply no credible evidence to show that period of time as continuous as required under the regulations.

In giving evidence the Appellant accepts that all of the convictions are correctly recorded in the decision letter save that which is recorded for 27 September 2000 at Southwark Crown Court for common assault and for threatening behaviour and 27 February 2004 at Tower Bridge Magistrates Court for public order offences. I am prepared to accept his evidence but that still leaves very many criminal offences covering a range of offences, many of which involve possession of controlled drugs or offences linked to serious breaches of public order, and include the possession of weapons. The Appellant relies on MG (prisonArticle 28(3)(a) of Citizens Directive) Portugal [2014] UKUT 00392 (IAC) and that time that he has spent in prison does not necessarily prevent him from acquiring the highest protection counted back from the date of assessment in March 2017. At paragraph 48 of that judgment is the following comment “.. the fact that the Court specifies that “in principle” periods of imprisonment interrupt the continuity of residence for the purposes of meeting the 10 year requirement can only mean that so far as establishing integrative links is concerned such period must have a negative impact.” In the Appellant’s case there are two periods of imprisonment. The first was imposed by Woolwich Crown Court on 16 October 2012 when he was sentenced to 12 months for affray, 6 months consecutive for offensive weapon in a public place, 3 months for destroying or damaging property, to run consecutively and a further one month for failing to comply with an earlier suspended sentence. The second period of imprisonment was imposed by Inner London Crown Court on 10 June 2015 when for possession of controlled drugs and offensive weapons he was sentenced to 13 months imprisonment. As part of the overall assessment, and I accept that the periods of imprisonment do not automatically disqualify him from enhanced protection under the regulations, and that he has lived in the UK for many years beforehand, I find that although in themselves the criminal convictions do not determine the issue, the Crown Courts having found that the nature of the offences are serious ones which merited periods of imprisonment which are not insubstantial they do have a negative impact, do interrupt the continuity of residence and he is not entitled to enhanced protection.”

The Respondent accepts that the Appellant has resided in the United Kingdom in accordance with the Regulations for a

“continuous period of 5 years” as required by regulation 15(1)(a). It is well established law that that protection once acquired is not be subsequent periods of imprisonment. I have to consider his case in accordance with regulation 21 and in particular whether the decision is proportionate. In doing so I have to consider if the Appellant is rehabilitated or making good progress with his rehabilitation and if so whether that rehabilitation is or is likely on present evidence to be durable.”

The judge then referred to the judgment of this court in R (Essa) v Upper Tribunal (Asylum and Immigration Chamber) and another [2012] EWCA 1718, and continued:

Judge Cassel’s conclusion on the appeal under the 2006 Regulations was as follows (at

The appeal to the Upper Tribunal was heard by UT Judge Rimington¸ whose decision was given on 13 December 2017. She found no error of law in the decision of FTT Judge Cassel and dismissed the appeal. It is therefore primarily the reasoning of the FTT which has been the subject of argument and scrutiny in this court. Nevertheless, I will set out some of Judge Rimington’s conclusions. On the issue of whether the

On the issue of integration UT Judge Rimington said:-

“40.

That the appellant was not sentenced for two years does not undermine the finding of the judge that in his view the overall convictions and sentences of imprisonment - that is two spells of imprisonment in the four years prior to the deportation order - undermined the claim of integration and thus the continuity of residence was broken. That was sufficiently reasoned on the part of the judge.

41.

It was argued that a period of imprisonment of less than two years did not break continuity and even cumulatively the applicant's two periods of imprisonment did not meet this length of sentence. I do not accept that Vomero lays down a hard and fast rule and it is open to the judge to decide on both whether the sentence is capable of breaking continuity of residence and integration. Vomero refers to the loss of permanent residence through the absence from the host member state. That is not the position here and mere absence is wholly different from being imprisoned.

42.

Nor do I accept that MG is authority for the proposition that less than one year sentence should not be taken into account. As that authority emphasised any decision was fact sensitive. It is not the case that the judge merely concluded that the periods of imprisonment excluded the appellant from claiming the enhanced protection outright. Although it was argued that two years of imprisonment and an absence of two years could be taken into account it is quite clear that there needed to be an overall assessment as to whether it was still possible for the appellant to qualify for enhanced protection and in the circumstances clearly the judge did not accept that it could. The judge did address the criteria under Regulation 21(4) and overall gave cogent reasoning for finding that the prison sentences had indeed broken the continuity of residence.

…

Further and overall the judge gave an adequate assessment as to whether the appellant was integrated and concluded on grounds which were open to him that the appellant was not.

48.

… The judge explored the criminal offending of the appellant and found every likelihood the appellant would persist in his criminal behaviour, which included violent behaviour, if allowed to remain in the United Kingdom. The judge found that the appellant remained a threat to society. It is implicit that the judge found the appellant's removal justified overall on 'serious grounds' having explored his personal circumstances and his offending (the reasons which I refer to below). The judge's reasoning was in parts intertwined but this does not undermine his conclusions overall.

I agree.

I also agree.

Appellant v