Secretary of State for the Home Department v Jose Paulo Castro

So far as relevant to this appeal, Appendix EU sets out the requirements for indefinite leave to remain in EU11 for a relevant EEA citizen, which in condition 3 are that the applicant has also completed a continuous qualifying period of five years without any supervening event occurring.

Paragraph EU15 sets out the suitability requirements, so far as relevant, as follows:

Whilst Mr Malik KC suggested that it would have been open to the Respondent to refuse the Appellant’s application under paragraph EU15(2) on the basis that she deemed his presence not to be conducive to the public good because of conduct after the specified date; it was accepted that this was not the basis relied upon in the decision letter.

Annex 1 to Appendix EU contains definitions of terms set out in the main rules, which so far as relevant include:

There was no dispute between the parties as to the correct approach to the issue of interpretation of the Immigration Rules, in accordance with the principles in Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 2 All ER 535 and Wang v Secretary of State for the Home Department [2023] UKSC 21, [2023] 1 WLR 2125. We follow this well-established approach to interpretation, the dispute in this case being the application of those principles on the facts of this case.

In summary, the Respondent’s position is that the definition of deportation order is expressly clear that there are two options, in the alternative, relating to conduct before and after the specified date and that where a deportation order refers to conduct in both time periods, it is sufficient that either (i) or (ii) is satisfied for a refusal under paragraph EU15(1)(a) of Appendix EU. Whilst it was accepted that both paragraph (b)(i) and (ii) would be engaged in principle in a deportation decision that relied on conduct before and after the specified date, it was sufficient for one or the other to be met for the purposes of finding a deportation order is in place for a refusal on suitability grounds under paragraph EU15(1) in Appendix EU.

On the facts of this appeal, it was therefore sufficient that the deportation decision relied on conduct after the specified date to meet the definition of deportation order in paragraph (b)(i), irrespective of the reliance on conduct prior to the specified date or whether the decision in relation to that was in accordance with regulation 27 of the EEA Regulations (which in any event the Respondent submits was satisfied for the reasons set out below in relation to the third ground of challenge). Mr Malik KC referred to the Respondent’s decisions letters which he submitted left no doubt that the conduct after the specified date was relied upon. In particular, one letter begins with reference to the Appellant’s convictions in 2021 and all letters refer to the history of offending between 2016 and 2021.

In addition, on the matter of construction, Mr Malik KC submitted that the Respondent’s approach was entirely consistent with the obvious purpose of the Immigration Rules and the enabling primary legislation behind it. The intention was to abolish rights of free movement to EEA citizens, with power to restrict those rights on the basis of conduct after the specified date which made their presence in the United Kingdom not conducive to the public good.

In summary, the Appellant’s position is that there was no error of law in the First-tier Tribunal’s decision on the interpretation or application of the definition of deportation order or paragraph EU15(1) of Appendix EU. That is because, on the facts of this case, the Respondent has expressly relied on conduct both before and after the specified date to show that the Appellant was a persistent offender. If the Respondent considered that post specified date conduct was alone sufficient, then the decision(s) themselves would not have needed to refer at all to previous conduct, nor undertake the detailed assessment under regulation 27 of the EEA Regulations that she did. The focus of the actual decisions made all point to a deportation order focused on paragraph b(ii) of the definition in Appendix EU.

Mr Khubber further relied on the Respondent’s actual approach in the decisions under appeal here as being entirely consistent with her own policy as to the correct approach where conduct both before and after the specified date is relied upon. It was however accepted that the policy relied upon before the First-tier Tribunal (which has since been updated further), dated from June 2023 and was therefore not in force at the time of the decisions under appeal in this case. As such, we do not find it of assistance to the issues raised in this appeal to refer to the policy further, beyond noting that the current policy appears to be at odds with the Respondent’s general position as to the approach to be taken in circumstances such as of this appeal where there is conduct which falls both before and after the specified date.

As a matter of construction, we accept that on its face, the ordinary and natural meaning of a provision which contains two different options, separated by an ‘or’ is such that satisfaction of one or the other would be sufficient for the definition to be met. However, when considering the specific provision in this appeal, the nature of the definition itself directs to two different factual scenarios which are not themselves mutually exclusive, and as accepted by Mr Malik KC could both be engaged in cases such as the present where there is pre and post specified date conduct committed. Paragraph (b)(i) in the definition of deportation order is directed solely at conduct committed after the specified date, whereas paragraph (b)(ii) is directed solely at conduct committed before the specified date. In a straightforward case where the conduct is solely before, or solely after the specified date, it is clear which of the two options would be applicable and need to be met for a relevant deportation order to be in place and therefore a refusal under paragraph EU15 of Appendix EU.

In circumstances such as in the present case, where both definitions are potentially engaged, we do not find that it is sufficient, in particular considering the wider context of the EUSS, for only one to be met and therefore the definition must be interpreted to read ‘and/or’ between paragraphs (b)(i) and (ii). Contrary to Mr Malik KC’s submissions that such a reading would lead to absurd results which can not have been intended, we find that anything other than such a reading would do so. Whilst one of the clear intentions of Brexit was to abolish free movement rights and to allow purely domestic regulation of migration after the specified date; that was subject to certain agreed ongoing protections and safeguards in relation to conduct of EEA nationals prior to the specified date, in particular, including those covered by the Withdrawal Agreement.

We did not hear submissions on the Withdrawal Agreement (and have not considered it necessary to invite written submissions on this point), however, its impact on deportations of EEA nationals relating to conduct before the specified date has recently been set out in Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 00066 (IAC) and in the case of Vargova (EU national: post 31 December 2020 offending: deportation), [2024] UKUT 00336 (IAC) (handed down on 26 September 2024). In the latter, the importance of distinguishing between conduct before and conduct after the specified date, with additional safeguards and requirements for cases including (but not limited to) conduct before the specified date, was highlighted.

In the present appeals, if it was sufficient for a deportation order, which on the facts relies on both pre and post specified date conduct, to meet the definition in paragraph (b)(i) only in relation to post specified conduct; that would effectively remove all of the wider protections available to EEA nationals in relation to conduct before the specified date and undermine those safeguards set out in the Withdrawal Agreement and elsewhere as part of the EUSS. We do not consider that to have been the likely intention of the Respondent in drafting the definition of deportation order in the Annex to Appendix EU and if there were to be a deliberate departure from the applicable safeguards for EEA nationals in relation to conduct before the specified date simply because there was also conduct after the specified date, we would have expected express provision to be made for such an outcome. For example, for there to have been included an additional sub-paragraph (iii) setting out the requirements where conduct covers both time periods.

In addition, we do not consider the interpretation above in any way prejudices the Respondent’s ability to refuse EUSS applications on suitability grounds where reliance is placed on conduct committed after the specified date given that in addition to the refusal on the basis of a deportation order in paragraph EU15(1) there is what appears to be an alternative wide ranging provision for refusal in paragraph EU15(2) on the basis that the Respondent deems an applicant’s presence in the United Kingdom as not conducive to the public good (again on the basis of conduct committed after the specified date). Mr Malik KC submitted that this was an option open to the Respondent on the facts of this particular appeal and would similarly fulfil what he described as the policy objectives of ending free movement for matters occurring after the specified date.

Further, on the facts in this case, we have real difficulty reconciling the Respondent’s submitted position as a matter of interpretation of the meaning of deportation order with the approach actually taken in the decisions under appeal. If it really was the case that a deportation order only needed to satisfy paragraph (b)(i) or (ii) even if conduct both before and after the specified date were relied upon, then the almost exclusive focus on the requirements which are set out in paragraph (b)(ii) as to the decision being in accordance with regulation 27 of the EEA Regulations in both the deportation decision and the EUSS decision, but particularly in the latter, would be entirely unnecessary.

Specifically, the EUSS decision makes no express reference to which part of the definition is relied upon and could, on the Respondent’s case as now presented, need not have gone beyond the first few paragraphs of the decision and simply said that there was a deportation order as defined in paragraph (b)(i) of the Annex to Appendix EU in force and therefore the application is refused under paragraph EU15(1). The focus in the decision letter instead on matters relevant only to conduct prior to the specified date was not set out in the alternative to this. Instead, the Respondent’s approach in both decision letters indicates her view, at least at that time, that it was necessary for the definition in paragraph (b)(i) and (ii) to be met where conduct fell within both sections. That is entirely consistent with the correct approach we have found above within the context of the wider EUSS scheme and EU Withdrawal Agreement.

In conclusion therefore, the definition of “deportation order” in paragraph (b) of Annex 1 to Appendix EU of the Immigration Rules must be read as follows (emphasis added):

The time period of the conduct relied upon by the Respondent will dictate whether sub-paragraph (i) and (ii) will apply (if conduct committed both before and after the specified date is relied upon) or whether paragraph (i) or (ii) will apply (if only conduct committed before or after the specified date is relied upon).

As a final point in relation to the first ground of appeal, the initial written grounds of appeal also raised a distinct point as to what was said to be the absurd consequence of the Appellant being given the enhanced protection of serious grounds of public policy and public security in circumstances where he had not in fact established permanent residence under the EEA Regulations. This was not however pursued in the Respondent’s skeleton argument or orally. For completeness, as the point was not formally withdrawn, we find no error of law in the First-tier Tribunal’s decision on this point as set out in paragraphs 17 to 24. We consider that the absurdity referred to is not the result of any issue of ambiguity or construction of Appendix EU to the Immigration Rules but an obvious and natural consequence of the policy and drafting chosen by the Respondent; which is entirely in line with a consistent policy choice within the EUSS to focus only on residence in the United Kingdom and not the fulfilment of conditions for such in accordance with the EEA Regulations. The result is particularly obvious in the definition of deportation order in Annex 1 to Appendix EU, paragraph (b)(ii) which refers to the application of regulation 27 of the EEA Regulations “irrespective of whether the EEA Regulations apply to the person”. Whilst the result is more generous than would seem to have been required under the EEA Regulations if still in force, or required by the EU Withdrawal Agreement, that is expressly what the provision provides for. This conclusion is also consistent with the decision in Abdullah.

For these reasons we find no error of law in the First-tier Tribunal’s decision on the first ground of appeal.

The Respondent’s primary position in relation to the third ground of appeal is that the First-tier Tribunal erred in fact as to the period over which the Appellant had not reoffended, referring in more than one place in the decision to this being a period of two years when in fact it was only one year and four months since the last conviction (slightly more since the commission of the latest offence). This factual error infected its assessment of whether the Appellant was a persistent offender at the date of hearing and consequently, the overall assessment of whether the Appellant presented a genuine, present and sufficiently serious threat to the public and ultimately, if so, whether the decision was proportionate.

There were a number of further points relied upon by the Respondent as follows. First, it was submitted that the First-tier Tribunal erred in its application of the principles in Chege (“is a persistent offender”) [2016] UKUT 187 (IAC) by proceeding on the basis that the Appellant could only be regarded as a persistent offender if he continued to offend up to the date of hearing and properly applied, it was not open to the First-tier Tribunal to conclude that by the date of hearing the Appellant was no longer a persistent offender.

Secondly, that the First-tier Tribunal erred in its assessment of the seriousness of the Appellant’s offences by failing to consider the frequency of offending and propensity to commit further crimes, as well as confining the idea of public revulsion to the kind of offending and not its frequency. In any event, public exposure is an offence which would attract public revulsion. Further, Mr Malik KC submitted that the First-tier Tribunal failed to take into account that committing a crime following an earlier conviction is itself an escalation of offending, such that it was not open to the First-tier Tribunal to conclude that there had been no escalation in the seriousness of offending. In particular, Mr Malik KC relied both on logic and common sense as to further offending being an escalation in seriousness, but also on the Sentencing Council Guidelines to show that further offending is a factor which increases the length of sentence for a later sentence. An example is that for assault of an emergency worker, which in the crown court sentencing guidelines, previous convictions are listed as an aggravating factor. However, Mr Malik KC could not demonstrate on this particular Appellant’s criminal history that there was a resulting increase in length of sentence given for the subsequent offences pursuant to such guidelines which would in itself be an indicator of escalating seriousness.

In summary, the Appellant’s position is that although there was a factual error in the length of time relied upon by the First-tier Tribunal without further offending, it was not material to the question of whether the Appellant was a persistent offender at the date of hearing. First, because the actual period was eighteen months from the last offence (rather than last conviction) which was not significantly different to two years; and secondly, because the assessment was more nuanced than just the period of time, also taking into account factors such as the Appellant’s deportation and more stable mental health.

On the First-tier Tribunal’s assessment of whether the Appellant posed a threat at the date of hearing, the Appellant’s position is that the findings made were rationally open to the First-tier Tribunal to make on the evidence. In particular, the Appellant’s criminal history does not show that there was any escalation in the seriousness of offending given that the length of sentences given fluctuated over time, with the longest of 26 weeks’ imprisonment in April 2021, which was followed by sentences of 24 weeks, 4 weeks and 6 weeks. Overall, the First-tier Tribunal made a quantitative and qualitative assessment of offending, which specifically did not include any emerging pattern or escalation of sexual offences. The mere fact that further offences were committed did not, per se, increase the seriousness of offending. In considering the evidence as a whole, the First-tier Tribunal were entitled to find that the Respondent had not established that there were serious grounds of public policy or public security to justify the Appellant’s deportation.

We deal first with the First-tier Tribunal’s reliance on there having been no offences committed by the Appellant for a period of two years up to the date of hearing on 10 January 2024. As accepted by the parties, this was a factual error given that the Appellant’s most recent conviction prior to the hearing was on 23 September 2022, a period of some one year and four months and the latest offence being committed on 4 July 2022 (for which he was sentenced in early September 2022), a period of some eighteen months prior to the hearing. Whilst we accept that the period without further offending would not as a matter of principle be determinative of whether the Appellant was a persistent offender, nor would that conclusion necessarily be determinative of whether the Appellant posed a genuine, present and sufficiently serious threat to the public; we find that in this case, it can not be found that the factual error was not material to these further findings given the repeated reliance placed on it in the First-tier Tribunal’s decision, particularly given the other indicators that the Appellant continued to pose a risk. That factual error alone is in our view sufficient to undermine the safety of the remaining findings and the decision must be set aside in relation to the assessment of risk and therefore also as to proportionality which follows on from it.

We find less merit in the remaining points raised by the Respondent within this ground of appeal which were more akin to disagreement with the consideration of and weight to be attached to various factors considered in the round, particularly as to the seriousness of offending. On the facts, we are not persuaded that the First-tier Tribunal erred in law in finding that there had not been an escalation in the seriousness of offending, albeit the position was a little more nuanced than that presented on behalf of the Appellant when looking at individual sentences for specific offences rather than overall period of sentencing which involved some concurrent and some consecutive sentences, there was a small increase in length of sentence between those given in April 2021 and July 2022, albeit much shorter sentences were given for the final two convictions.

We further consider that the submissions made in relation to public revulsion were somewhat of a red herring which were unlikely to be material either way. Whilst this is a factor that could potentially be relevant to the assessment, this is not really one of those cases where it would carry great weight if relevant at all given that the Appellant’s offending is not of the type or frequency that would likely engage this concept as against other examples of where it would clearly apply (SSHD v Robinson [2018] EWCA Civ 85, [2018] 4 WLR 81 refers, at [71]). That is not to reduce the possible public revulsion against the exposure offence, but to recognise that it remains at the lower end of the scale for this.

Theses are in any event matters which will need to be considered in the round when the appeal is remade on this issue and do not detract from the primary finding that the decision on assessment of threat must be set aside due to the factual error which infects the remaining findings and assessment.

There was no dispute between the parties that this final ground of appeal stood or fell with the two grounds already considered above and that if there was an error of law in one or other of them, this ground would also succeed as the reasoning for allowing the appeal on human rights grounds was entirely dependent on the EUSS findings. For these reasons, we find an error of law on this final ground and the decision must be set aside on this ground as well.

The appeal to be listed for a face to face hearing before Judges Jackson and Blundell on the first available date six weeks after this decision has been sent, with a time estimate of 3 hours.

Any application to the Respondent for the Appellant to return to the United Kingdom to give evidence in his appeal and/or any application to the Upper Tribunal for the Appellant to give evidence from Portugal to be made within 21 days of the date on which this decision is sent. Any such application should include any request for an interpreter if required.

Any further evidence upon which the Appellant wishes to rely to be filed and served no later than 4pm, 14 days before the relisted hearing. If any person intends to give oral evidence, a written statement (or updated written statement) is required to stand as evidence in chief.

Any further evidence upon which the Respondent wishes to rely to be filed and served no later than 4pm, 7 days before the relisted hearing.