Hafeez v The Secretary of State for the Home Department

Ali Hafeez is a German national, born in 1995, who has lived in the UK since 2006 or 2007. On 12 March 2015 he was convicted of rape and other offences in the Crown Court at St Albans and sentenced to 7 years detention. On 8 December 2017 the Home Office made a decision under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) that he should be deported to Germany. His appeals to the First Tier Tribunal (“FTT”) and Upper Tribunal (“UT”) were unsuccessful. He now appeals to this court by permission of Hickinbottom LJ.

The 2016 Regulations were made pursuant to the UK’s obligations under EU Directive 2004/38: relevant passages from both the Directive and the 2016 Regulations are appended to this judgment. (It was not suggested by either side that the UK’s withdrawal from the EU makes any difference to the present case.) There are three levels of protection from deportation for EEA nationals. Putting to one side decisions made on public health grounds, which are not relevant in this case, any EEA national who has the right to reside in the UK (either personally or as a family member of another EEA national who has that right) may only be removed on grounds of public policy or public security (Regulation 23(6)(b)); the decision may not be taken to serve economic ends (Reg 27(2)); and it must comply with the principle of proportionality and a number of other requirements set out in Regulation 27 (5) - (6). I will call this

If the EEA national has resided in the UK in accordance with the 2016 Regulations “for a continuous period of five years”, he acquires the right of permanent residence (Regulation 15(1)), and in addition to basic protection he has the benefit of Regulation 27(3), which states that a decision to remove him may not be taken “except on serious grounds of public policy and public security”. I will call this “serious grounds protection”.

Finally, if the EEA national has resided in the UK “for a continuous period of at least ten years prior to the relevant decision”, Regulation 27(4) states that a decision to remove him may not be taken “except on imperative grounds of public security”. I will call this “imperative grounds protection”; it is also sometimes referred to as “enhanced protection”.

The two principal issues before us are (a) to which level of protection was the Appellant entitled when the decision to deport him was made; and (b) given that he had that level of protection, was the decision lawful?

Mr Hafeez claims to have resided in the United Kingdom since some time in 2006, though the Respondent maintains that he only arrived in 2007 and first attended school here in July 2007. On 1 October 2008, Mr Hafeez’s father applied to register himself as an EEA national and his family, including the

His conviction at St Albans Crown Court was on two counts of rape committed while he was aged seventeen in June 2013, for which he received a sentence of six years, one count of robbery committed against the same victim on the same date (three years concurrent); and one count of dangerous driving for which he received a sentence of 12 months consecutive to the six years received for the index offence. He had an earlier conviction for theft from a motor vehicle for which he had received a conditional discharge.

The facts are vividly described in the remarks of the sentencing judge, which were quoted in the Home Office’s decision letter:

The judge went on to state that:-

The custodial part of the Appellant’s sentence ended on 4 January 2018. After a short period in immigration detention he was released on bail on 31 January 2018. Thus at the date of the decision which gave rise to these proceedings, the Appellant had spent three and a half years in prison out of his ten or eleven years residence in the United Kingdom (depending on whether he arrived in 2006 or 2007).

The decision issued on behalf of the Secretary of State on 8 December 2017 was to deport the Appellant. The Respondent considered whether the Appellant, as an EEA national, was entitled to protection under either of Regulations 27(3) and 27(4). The Respondent found that the Appellant had not resided continuously in the United Kingdom for ten years and so was not entitled to imperative grounds protection. The Respondent also found that the Appellant had not acquired five years’ permanent residence and so was not entitled to serious grounds protection.

The Respondent concluded that the Appellant should only be afforded basic protection under the 2016 Regulations: his removal had to be justified on “grounds of public policy, public security or public health”. The Respondent decided that this threshold was satisfied, because the Appellant represented a genuine and sufficiently serious threat to the public, and decided that the Appellant’s expulsion was proportionate. The Respondent also concluded that the Appellant’s risk to the public would be enough to surmount the relevant thresholds under Regulations 27(3) or 27(4), should either serious grounds or imperative grounds protection apply.

The Respondent certified pursuant to Regulation 33 of the 2016 Regulations that Mr Hafeez was to be removed before the conclusion of any appeal he might make against the removal. That certification was contested (a challenge which has recently been upheld by Foster J on judicial review: (R (Hafeez) v SSHD [2020] EWHC 437 (Admin)) and the appeal proceeded without Mr Hafeez being removed.

The Appellant duly appealed to the FTT but FTT Judge O’Hagan dismissed his appeal on 2 October 2018. He was granted permission to appeal to the UT, but Cockerill J (sitting as a UT Judge) and UT Judge Canavan dismissed the appeal on 10 January 2019. On 22 August 2019, Hickinbottom LJ granted permission to appeal on the basis that the case raised an important issue as to the correct approach to the “imperative grounds of public security” required to justify the deportation of an EEA national. On 30 January 2020, this court granted the Home Secretary permission to file a Respondent’s Notice to support the decisions below on additional grounds.

Judge O’Hagan noted at paragraph [8] of his judgment that the Respondent had not accepted in its decision letter that the Appellant had lived in the United Kingdom for a continuous period of five years so as to acquire a right of permanent residence. At paragraph [22] he recorded the submissions of Mr

The judge then considered whether the Appellant had ten years’ continuous residence and so could rely on imperative grounds protection under Regulation 27(4). He said:

In the case of Essa (EEA: rehabilitation/integration) [2013] UKUT 00316 (IAC), it was said that, pending further clarification of the law by the Court of Justice, it is uncertain whether it would do so. In SSHD v Franco Vomero (Italy) [2016] UKSC 49, the Supreme Court summarised the position as follows:

Given the uncertainty in this crucial point of ten years residence, it seems to be appropriate to give the appellant the benefit of the legal doubt. In deciding to do so, I have had regard to the fact that he has lived here since he was 10 or 11, had his secondary education and started his degree here, speaks fluent English, and has built a life in the community of this country. He is, to that extent, integrated. I will, therefore, consider the case on the basis that he enjoys the highest level of protection, the imperative ground threshold.”

The judge proceeded to examine whether the Appellant’s expulsion was justified on the imperative grounds basis. The judge took note of the interpretation of “imperative grounds of public security” provided by Carnwath LJ, sitting as Senior President of Tribunals in what was then the Asylum and Immigration Tribunal, in LG and CC (EEA Regs: residence, imprisonment, removal) Italy [2009] UKAIT 00024:

Judge O’Hagan proceeded at paragraphs [39] and [40] to consider other factors such as the nature of the Appellant’s offending, his lack of remorse and the Appellant’s contempt towards his victim. The judge concluded that the Appellant’s conduct was “consistent with his being a risk” to women and in particular to sex workers. At paragraphs [41] and [42] of his judgment, the judge noted evidence that the Appellant’s rehabilitation was “at best variable” and that his risk of re-offending was “high or, at best, medium”. The judge considered at paragraph [44] that society had a right to expect that women will be protected from crimes such as those which the Appellant had committed, and that the Appellant, if deported, would be able to integrate into life in Germany.

At paragraph [49] the judge concluded that the imperative grounds threshold was satisfied; and consequently that the serious grounds threshold was also met:

Permission to appeal to the UT was granted by FTT Judge Froom, who wrote:

At paragraph [15] of its decision, the UT observed that:

On the imperative grounds issue the UT held that Judge O’Hagan was right to take as his starting point the seriousness of the Appellant’s offending, before he considered other factors such as the Appellant’s contempt for women and particularly sex workers, his “mixed” progress with rehabilitation, his “real and significant” risk of reoffending, his personal circumstances, and the impact of his removal on his prospects of rehabilitation. At paragraphs [30] to [32], the UT concluded that the FTT judge was entitled to find that the Appellant’s removal was justified on imperative grounds of public security:

Two other questions were raised during the course of argument:

Whether the FTTJ erred in his approach to residence;

Whether any error in the Appellant’s favour (ie. an erroneous conclusion that he was entitled to “imperative grounds” protection) would be material in the light of the factual findings and their consequences for a “serious grounds” test.

In the light of our conclusions above that the imperative grounds test is in any event met, these do not arise and we make no determinations in relation to them.”

The UT therefore upheld the FTT judge’s decision and dismissed the appeal.

Ms Hirst, for the Appellant, advanced two grounds of appeal before us. The first was that the FTT and UT judges had erred (a) in failing to distinguish the imperative grounds threshold from the serious grounds threshold, and (b) in conflating the risk posed by the Appellant with the nature of his offending (“the exceptionality ground”). The second ground was that both tribunals erred in their approach to proportionality under Regulation 27(5) by failing to consider whether the Appellant’s removal was necessary and the least restrictive way of meeting the legitimate aim of protecting public security (“the proportionality ground”).

Ms van Overdijk’s Respondent’s Notice can in essence be condensed into two grounds. The first is that the FTT judge erred in holding that the Appellant had acquired a right of permanent residence, despite the fact that the Respondent’s decision letter had stated that the Appellant had no such right (“the permanent residence ground”). The second is that the FTT judge erred in finding or assuming in the Appellant’s favour that he was entitled to imperative grounds protection, when the Appellant did not have the qualifying ten years’ continuous residence (“the ten years’ residence ground”).

I will consider the Respondent’s Notice first, because Ms Hirst’s principal ground of appeal does not come into play if the Respondent is correct that the Appellant should not have been afforded imperative grounds protection in the first place.

Ms van Overdijk sought to argue that the Appellant did not have a right of permanent residence under Regulation 15(1) and so was not entitled even to serious grounds protection under Regulation 27(3). The basis of this submission was the following passage in the Respondent’s decision letter:

In my view, the FTT judge was entitled to proceed on the basis that the Appellant did have a right of permanent residence. The point now sought to be raised does not seem to have been argued on behalf of the Respondent at the FTT hearing. At paragraph [22] the FTT judge noted the Respondent’s submissions “that the appellant does not qualify for enhanced protection on the basis of five / ten years’ residence”. But at [29] he said:

Moreover, the Appellant gave evidence in the FTT that he had started school in the United Kingdom in 2007 (this appears to be undisputed) and that his father had worked in various occupations in the United Kingdom since arriving. If the Respondent had wanted to argue that the Appellant, despite attending school in the UK for at least five years, had never acquired permanent resident status under Regulation 15(1) because his father was not exercising Treaty rights, the Home Office Presenting Officer should have raised the point expressly in crossexamination and submissions before the FTT judge. It would be unjust to allow the point to be raised for the first time in this court.

There was no attempt to argue, either in this court or below, that permanent residence status, once acquired, could be forfeited by a long prison sentence.

Ms van Overdijk argued that the Appellant did not have ten years’ continuous residence and, as such, was not entitled to the imperative grounds protection under Regulation 27(4). Calculating ten years’ continuous residence has been the subject of much litigation. In MG (Portugal) v Secretary of State for the Home Department (Case C-400/12) [2014] 1 WLR 2441 (a case in which, it should be noted, the appellant had already resided in the UK for 10 years before being sentenced to imprisonment) the CJEU considered four questions:

Does reference to the “previous ten years” in Article 28(3)(a) [of Directive 2004/38] mean that the residence has to be continuous in order for a Union citizen to be able to benefit from the highest level of protection against expulsion?

For the purposes of Article 28(3)(a), is the requisite period of 10 years during which a Union citizen must have resided in the host Member State calculated

by counting back from the expulsion decision; or

by counting forward from the commencement of that citizen’s residence in the host Member State?

At paragraphs [27] to [36] of its judgment, the Court held 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: [emphasis added]

In the light of all of the foregoing, the answer to Questions 2 and 3 is that, on a proper construction of Article 28(3)(a) of Directive 2004/38, the 10 year period of residence referred to in that provision must, in principle, be continuous and must be calculated by counting back from the date of the decision ordering the expulsion of the person concerned.

By its first and fourth questions, the referring court asks, in essence, whether Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that a period of imprisonment is capable of interrupting the continuity of the period of residence for the purposes of that provision and may, as a result, affect the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host Member State for the 10 years prior to imprisonment.

In that regard, the Court has already found that the system of protection against expulsion measures established by Directive 2004/38 is based on the degree of integration of the persons concerned in the host Member State and that, accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be, in view of the fact that such expulsion can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the FEU Treaty, have become genuinely integrated into the host Member State (see, to that effect, Tsakouridis, paragraphs 24 and 25).

The Court has also found, when interpreting Article 16(2) of Directive 2004/38, that the fact that a national court has imposed a custodial sentence is an indication that the person concerned has not respected the values of the society of the host Member State, as reflected in its criminal law, and that, in consequence, the taking into consideration of periods of imprisonment for the purposes of the acquisition, by members of the family of a Union citizen who are not nationals of a Member State, of the right of permanent residence as referred to in Article 16(2) of Directive 2004/38 would clearly be contrary to the aim pursued by that directive in establishing that right of residence (Case C 378/12 Onuekwere [2014] ECR, paragraph 26).

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.

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.

As regards the continuity of the period of residence, it has been stated in para 28 above that the ten-year period necessary for the grant of enhanced protection as provide for in article 28(3)(a) of Directive 2004/38 must, in principle, be continuous.

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).

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).”

As I noted recently in Hussein v Secretary of State for the Home Department [2020] EWCA Civ 156, it remains unclear whether time in custody can be counted towards the ten years. When the Vomero case (FV (Italy) v Secretary of State for the Home Department [2017] 1 All ER 999) was first before the Supreme Court, Lord Mance JSC compared the qualifying periods of residence for the serious grounds and imperative grounds protections:

The Supreme Court asked the CJEU whether periods of imprisonment (a) positively count towards ten years’ continuous residence or (b) cannot be relied upon to establish ten years’ continuous residence. However, in the joined references of B v Land Baden-Württemberg (C-316/16) and Vomero (C-424/16) [2019] QB 126, the Court of Justice held that it was unnecessary to answer this question in the light of its conclusion on a different question. The CJEU also confirmed at paragraph [61] that permanent residence is a necessary prerequisite for acquiring imperative grounds protection:

In many cases, the uncertainty identified by the Supreme Court in Vomero will not be of great importance. Suppose an EEA national has resided in the UK for

But in the present appeal the issue left open by the Court of Justice in Vomero is determinative. Regardless of whether the Appellant arrived in the United Kingdom in 2006 (as the Appellant submits) or in 2007 (as the Respondent submits), he has to rely on his period of three and a half years in custody in order to establish ten years’ residence. This is because, even assuming he arrived here on 1 January 2006, he would only have resided in the United Kingdom for at most eight and a half years prior to the deportation decision, excluding his time in custody. Thus he cannot rely on imperative grounds protection unless his period of imprisonment counts positively towards his ten years’ residence.

In my view, periods of imprisonment (or detention in a young offenders’ institution: Viscu v SSHD [2020] 1 All ER 988) do not count positively towards establishing ten years’ residence. I have reached this conclusion for three reasons.

Firstly, that is the only interpretation which can be placed on the unqualified determination by the CJEU in paragraph [33] of MG (Portugal) 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”, before the court went on to add “and in principle such periods interrupt the continuity of the period of residence for the purposes of that provision”. If the

Paragraphs [34] to [36] deal with the question of whether periods of imprisonment interrupt continuity of residence, with paragraph [35] referring to “the non-continuous nature of the period of residence during the ten years preceding the decision to expel”. I do not see how this phraseology is consistent with the idea that time in custody counts positively towards the ten years. It rather supports the view that imprisonment presses a pause button. Mr Hafeez does not, on any view, have a non-continuous period of residence in the UK of ten years or more. Taking his claimed arrival date of 2006, at the time of the deportation decision he had between 11 and 12 years continuous residence if the three and a half years in custody count towards the total, but a non-continuous period of at most eight and a half years if they do not.

Secondly, allowing individuals to count periods of imprisonment towards the ten year period would produce unjustifiable inconsistency between the tests which must be satisfied to rely on the serious grounds or imperative grounds protections. As the CJEU made clear in Onuekwere v Secretary of State for the Home Department (Case C-378/12) [2014] 1 WLR 2420, a decision handed

Thirdly, such a distinction would produce arbitrary results. This can be illustrated by two hypothetical examples. A has resided in the United Kingdom for 11 years prior to his deportation decision. He has spent years 5-7 in custody, pursuant to a six year sentence for rape passed on the fourth anniversary of his arrival; so he only had two sets of four years residence (either side of the period of imprisonment) unblemished by imprisonment. He would not have acquired the right of permanent residence and thus has neither serious grounds protection nor imperative grounds protection.

B has also resided in the United Kingdom for 11 years prior to his deportation decision. He has spent years 7-9 in custody, pursuant to a six year sentence for rape passed on the sixth anniversary of his arrival; which meant that prior to entering prison he had more than five years’ residence unblemished by any period of imprisonment. If Ms Hirst is right, he would have a right of permanent residence and, subject to an assessment of whether his integrative links had been broken, would also be able to argue that he had ten years’ residence. Thus, despite residing in the United Kingdom for the same number of years as A, and serving time in prison for the same offence and the same number of years as A, B could be entitled to imperative grounds protection – two levels higher than A, who has only basic protection – simply because his period of custody commenced at a later stage.

For these reasons, I consider that the FTT judge was wrong to give the Appellant the benefit of the legal doubt on this point. As I said in Hussein at paragraph [18] (in a judgment handed down after the FTT and UT decisions in the present case), an individual relying on imperative grounds protection who has served time in custody must prove both that he has ten years’ continuous (or non-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. In the present case, if the Appellant could not count his three and a half years in prison towards the necessary ten years’ residence, he failed to qualify for imperative grounds protection under Regulation 27(4) for simple mathematical reasons. The question of whether his integrative links with the UK were broken by the three and a half years in custody (as to which see Viscu, another decision of this court given after the FTT and UT judgments in the present case) therefore does not arise.

The Appellant thus only had a right of permanent residence and accordingly should have been afforded serious grounds protection under Regulation 27(3), but not imperative grounds protection under Regulation 27(4).

In the light of my conclusion that Mr Hafeez was not entitled to the enhanced imperative grounds protection, it is not strictly necessary to determine whether the FTT judge was correct to find that his expulsion was justified on imperative grounds of public security. But since this was the ground on which the Appellant was granted permission to appeal, it is right to address it.

Ms Hirst submitted that the FTT judge’s conclusion was tainted by two errors. First, the judge failed to follow the guidance provided by Carnwath LJ in LG and CC by conflating the seriousness of the Appellant’s offending with the level of the present threat posed by the Appellant. Secondly, the judge failed to consider adequately whether the threat posed by the Appellant was exceptionally serious. As the CJEU held in Land Baden-Wurttemberg v Tsakouridis (Case C-145/09) [2011] 2 CMLR 11:

In LG and CC, Carnwath LJ set out the following guidance about the meaning of imperative grounds of public security, emphasising that the focus must be on the individual’s present and future risk to the public, rather than on the seriousness of the individual’s offending:

In the present appeal, I consider that there was material entitling the FTT judge to find that the imperative grounds test had been satisfied. In addition to the sentencing judge’s remarks which I have cited above, the pre-sentence report to the Crown Court, which was included in the papers before the FTT, included this assessment:

Ms Hirst drew our attention to the fact that the sentencing judge had not made a finding of dangerousness. For my part I do not read the sentencing remarks as rejecting the view that the Appellant presented a high risk of serious harm: rather the judge was saying that the case was not one requiring the imposition of an extended determinate sentence under s 226A of the Criminal Justice Act 2003, as amended. (Such a sentence requires the court to conclude that the offender presents a significant risk of serious harm to members of the public occasioned by the commission by the offender of further specified offences, and also that one of two further conditions is specified; even then the use of the power is discretionary.) An obviously important factor in that decision was the fact that Mr Hafeez had been only 17 at the time of the rape, though 19 at the time of conviction.

Ms Hirst submitted that the FTT judge quoted only a small section of LG and CC and did not have regard to Carnwath LJ’s full guidance. However, the judge did quote the “particularly serious risk” test at paragraph [37] of his judgment. He also had some regard to the risk which the Appellant posed, as shown by his comments in the following paragraphs:

While the FTT judge’s decision is for the most part admirably clear, there is some force in Ms Hirst’s submission that he gave excessive emphasis to the seriousness of the Appellant’s offending when he should have focused primarily on the seriousness of the risk posed by the Appellant. Nevertheless, reading his judgment as a whole, I agree with the UT that he did apply the test of whether Mr Hafeez posed a particularly serious risk to the safety of the public or a section of the public; and that, albeit in my view by quite a narrow margin, Mr Hafeez could properly be found to be someone whose removal was indeed justified on imperative grounds of public security.

However, that is strictly academic since, in my judgment, the Appellant should not have been afforded the imperative grounds protection and was liable to be deported on serious grounds of public policy or public security.

As to that, it is clear from paragraph [49] of the FTT judge’s decision that he regarded the Appellant’s expulsion to be justified on serious grounds of public policy or public security under Regulation 27(3). That conclusion was clearly one at which the judge was entitled to arrive, in the light of the evidence before him. The Appellant’s offending was serious. He consistently revealed contempt for his victim and for sex workers more generally. He showed no genuine remorse and, before the FTT judge, was unable to recognise his own status as a perpetrator of sexual violence. The evidence as to his behaviour in custody heightened the judge’s concerns about the risk he posed rather than reducing them.

Ms Hirst submitted that the FTT judge erred in his approach to proportionality by failing to consider whether the Appellant’s removal was necessary and the least restrictive way of meeting the legitimate aim of protecting public security.

If, as the FTT judge found, the Appellant’s expulsion was justified on imperative grounds of public security, his expulsion would plainly also be proportionate: Ms Hirst acknowledged that it would be rare for an expulsion to be justified on imperative grounds of public security and yet also be disproportionate.

Whether the imperative grounds or serious grounds test is applicable, the FTT judge was entitled to find that the Appellant’s expulsion would be proportionate. The judge considered the relevant principles from Regulation

Accordingly, in agreement with the UT, I do not think the FTT judge erred in concluding that the Appellant’s expulsion was proportionate and justified on serious grounds of public policy or public security.

I would dismiss the appeal.

I agree.

I also agree.

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.

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.

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.

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.

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.

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.

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.

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…..

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:

an EEA national who has resided in the United Kingdom in accordance with these Regulations for a

a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these

the person was the family member of the worker or self-employed person at the point the worker or selfemployed person ceased activity; and

at that point, the family member enjoyed a right to reside on the basis of being the family member of that worker or self-employed person;

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

the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 27; or

the Secretary of State has decided that the person’s removal is justified on grounds of misuse of rights under regulation 26(3).”

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

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

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

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

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

is under the age of 18, unless the relevant decision is in the best interests of the person concerned, 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.

The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles—

the decision must comply with the principle of proportionality;

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

the personal conduct of the person must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;

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

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

the decision may be taken on preventative grounds, even in the absence of a previous criminal conviction, provided the grounds are specific to the person.

Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) 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 P, P’s length of residence in the United Kingdom, P’s social and cultural integration into the United Kingdom and the extent of P’s links with P’s country of origin..”

The appeal is dismissed.

The Appellant shall pay the Respondent’s reasonable costs of and occasioned by this appeal, which if not agreed shall be determined on an application by the Respondent under Regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any request by the Respondent for costs to be paid by the Lord Chancellor is to be determined in accordance with regulations 10 and 16 of the Civil Legal Aid (Costs) Regulations 2013.

The Appellant’s costs of the appeal shall be subject to a detailed assessment in accordance with the 2013 Regulations and CPR 47.18.