Deportation of EEA Nationals from the United Kingdom

Deportation of EEA Nationals from the United Kingdom Introduction 1. The deportation of EEA Nationals from the United Kingdom ("UK") is governed by the Immigration (European Economic Area) Regulations 2016 (the "2016 Regulations"), which implements Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (the "Directive"). 2. Under the 2016 Regulations, the deportation of EEA nationals from the UK is only justified on very particular grounds which are explained in more detail below. 2016 Regulations 3. Under Regulation 23(b) of the 2016 Regulations, an EEA (or the family member of such a national) who has entered the UK may only be deported if the "Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health". EEA Nationals and EEA National Family Members 4. The 2016 Regulations define an EEA national as "a national of an EEA State who is not also a British Citizen". 1 EEA States include all EU member States (excluding the UK) and Liechtenstein, Iceland, Norway and Switzerland. Under Regulation 7 of the 2016 Regulations, a "family member" means the spouse or civil partner and direct descendants (i.e. children) of a person. The direct descendants of that person's spouse or civil partner will also be family members if they are (i) under 21, or (ii) dependants of that person or their spouse or civil partner. Finally, dependent direct relatives of that person, or that person's spouse or civil partner will also be family members. These rules do not apply, however, if the relevant person is a student. Public Policy and Public Security 5. The 2016 Regulations include a number of requirements for, and restrictions on, decisions taken on the grounds of public policy, public security and public health. 2 1 2 Regulation 2, 2016 Regulations. Regulation 27, 2016 Regulations. 11/44796775_2 1

6. As the 2016 Regulations make clear, the UK has considerable discretion to define its own standards of public policy and public security. 3 There are, however, a number of restrictions under the 2016 Regulations, and indeed the Directive and EU law on the UK's ability to remove an EEA national on the grounds of public policy and public security. 7. First, a decision taken on those grounds cannot be taken "to serve economic ends" (for example, to protect jobs). 4 Fundamental Interests in Society 8. Second, the Secretary of State must demonstrate that the removal protects "fundamental interests of society". 5 9. Schedule 1 of the 2016 Regulations sets out a non exhaustive definition of the "fundamental interests of society" which includes: 6 "(a) preventing unlawful immigration and abuse of the immigration laws, and maintaining the integrity and effectiveness of the immigration control system (including under these Regulations) and of the Common Travel Area; (b) maintaining public order; (c) preventing social harm; (d) preventing the evasion of taxes and duties; (e) protecting public services; (f) excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action; (g) tackling offences likely to cause harm to society where an immediate or direct victim may be difficult to identify but where there is wider societal harm (such as offences related to the misuse of drugs or crime with a cross border dimension as mentioned in Article 83(1) of the Treaty on the Functioning of the European Union); (h) combating the effects of persistent offending (particularly in relation to offences, which if taken in isolation, may otherwise be unlikely to meet the requirements of regulation 27); 3 4 5 6 Paragraph 1, Schedule 1, 2016 Regulations. Regulation 27(2), 2016 Regulations. Regulation 27(5), 2016 Regulations. Paragraph 7, Schedule 1, 2016 Regulations. 11/44796775_2 2

(i) protecting the rights and freedoms of others, particularly from exploitation and trafficking; (j) protecting the public; (k) acting in the best interests of a child (including where doing so entails refusing a child admission to the United Kingdom, or otherwise taking an EEA decision against a child); (l) countering terrorism and extremism and protecting shared values." 10. The definition of fundamental interests of society is therefore very broad. For example, no guidance has been given as to what "preventing social harm" or "protecting public service" would entail. In addition, paragraph 7(h) of Schedule 1 expressly states that "combating the effects of persistent offending" is a fundamental interest of society, but the 2016 Regulations do not specify what type of offences can and should be taken into consideration in such cases. Personal Conduct of the Person 11. Third, the decision to remove a person on the grounds of public policy and public security must be based on "exclusively" on the personal conduct of the person concerned. 7 That personal conduct "must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society". 8 12. The personal conduct of the person can include past conduct. 9 It is clear following the 2016 Regulations and EU case law that previous criminal convictions may be taken into account, but only in so far as the circumstances which gave rise to that conviction are evidence of personal conduct constituting a present threat. Previous criminal convictions do not in themselves justify the decision. 10 Previous criminal convictions can only be taken into account to the extent that they can be said to inform the assessment of the present threat to a fundamental interest of society. 13. In Straszewski v Home Secretary 11 the Court of Appeal considered the limits of the relevance of the past conduct of the person. While the Court of Appeal recognised that there "may be cases in which past conduct alone may suffice" 12 it also 7 8 9 10 11 12 Regulation 27(5)(b), 2016 Regulations. Regulation 27(5)(c), 2016 Regulations. Regulation 27 (5)(c), 2016 Regulations. Regulation 27 (5)(e), 2016 Regulations; R v Bouchereau [1978] 2 W.L.R. 251. [2016] 1 WLR Ibid, 17. 11/44796775_2 3

emphasised "the need to look to the future rather than the past in all but the most exceptional cases". 13 14. In general, previous convictions are relied upon as evidence of the persons' propensity to re offend, however the European Court of Justice acknowledged in R v Bouchereau 14 that there may be instances "where the personal conduct of an alien has been such that, whilst not necessarily evincing any clear propensity on his part, it has caused such deep public revulsion that public policy requires his departure". This was applied in R v Secretary of State for the Home Department, Ex p Marchon 15 which concerned a doctor who had been convicted of conspiring to import 4.5 kilos of heroin. The Court considered that, given the "very serious and horrifying" nature of the crime, which was especially "repugnant to the public" as it had been carried out by a doctor, the deportation order against him was justified. Public revulsion is, however, unlikely be a relevant concern in the majority of cases. 16 As such, the Secretary of State still has the burden of proving that previous convictions are relevant to the personal conduct of that person which in turn constitutes a genuine threat to a fundamental interest of society. Deterrence 15. Regulation 27(5)(f) states that "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" which appears to permit decisions to deport EEA nationals from the UK on general grounds of deterrence. This was expressly considered in Straszewski v Home Secretary 17 where the Court of Appeal held that "[g]eneral considerations of deterrence and public revulsion normally have no part to play" in the assessment of whether the personal conduct of a person presents a serious threat to a fundamental interest of society. 16. The requirement of Regulation 27(5)(f) that the preventative grounds must be specific to the person prevents the Secretary of State from ordering the deportation of EEA nationals on general and unspecific grounds. The exact scope of this Regulation is however untested. It did not appear in The Immigration (European Economic Area) Regulations 2006 (the predecessor to the 2016 Regulations). However, the addition of Regulation 27(5)(f) would not appear to be sufficient to override the preceding European and Domestic case law on this topic, 13 14 15 16 17 Ibid. [1978] QB 732 (Case 30/77). [1993] Imm AR 384. Straszewski v Home Secretary [2016] 1 WLR, 20. [2016] 1 WLR, 20. 11/44796775_2 4

which does not allow the deportation of EEA nationals on general grounds of deterrence. Proportionality 17. The question of whether the decision is proportionate will only be considered once the Secretary of State has proven that the personal conduct of the person represents a genuine, present and sufficiently serious threat to a fundamental interest of society. 18 18. Recital 23 of the Directive states that "the scope for [expulsion] should be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin". 19. The provisions of the Directive are incorporated in Regulation 27 of the 2016 Regulations. Schedule 1 of the 2016 Regulations seeks to provide greater detail of the factors a court or tribunal must have regard to when considering whether the requirements of Regulation 27 have been met. Schedule 1 includes guidance on what should be considered as cultural and societal integration, 19 the weight that should be given to those integrating links, 20 and when a decision is less likely to be considered proportionate. 21 In addition, it is clear from the case law that the person's likelihood of and access to rehabilitation will also be a relevant consideration in assessing if the decision is proportionate. 22 Imperative and Serious Grounds 20. The factors that must be taken into account do not vary depending on the person's length of residence in the UK. 23 Instead, pursuant, to Regulations 27(3) and 27(4), the weight that must be given to those factors varies, depending on the person's status of residence in the UK. 21. A decision to deport an EEA national with a right of permanent residence in the UK can only be taken "on serious grounds" of public policy or public security. 24 A decision to deport an EEA national who has resided in the UK for a continuous 18 19 20 21 22 23 24 MC (Essa principles recast: Portugal) [2015] UKUT 520 (IAC), 29(b). Paragraph 2, Schedule 1, 2016 Regulations. Paragraph 4, Schedule 1, 2016 Regulations. Paragraph 5, Schedule 1, 2016 Regulations. The Secretary of State for the Home Department v Arturas Dumliauskas, Lukasz Wozniak, Me (Netherlands) [2015] EWCA Civ 145. Ibid. Regulation 27(3), 2016 Regulations. 11/44796775_2 5

period of at least ten years (or who is under the age of 18) can only be taken on "imperative grounds of public security". 25 Lord Justice Moore Bick stated: 26 "[i]t is clear that the expression "imperative grounds of public security" creates a considerably stricter test than merely "serious" grounds, but since the application of the test is primarily for the member state concerned, which must take into account social conditions as well as the various factors to which the Directive itself refers, the question is likely to turn to a large extent on the particular facts of the case In the end, the Secretary of State must give effect to the Regulations, which themselves must be interpreted against the background of the right of free movement and the need to ensure that derogations from it are construed strictly". 22. The European Court of Justice considered "imperative grounds of public security" and held that while Member States have a wide discretion to determine the requirements of public policy and public security these requirements do not override those of the Directive which must be interpreted strictly. The European Court of Justice acknowledged that criminal offences may pose a particularly serious threat to a fundamental interest in society or a threat to the calm and physical security of the population which in turn could constitute "imperative grounds of public security". However, the Court also held that normally it is implied that the person in question has a propensity to act in the same way in the future. 27 This was confirmed by the Court of Appeal. 28 Right of Permanent Residence 23. The right to enhanced protection under Regulation 27(3) is dependent on the person having the right of permanent residence under Regulation 15. In addition to Regulation 15, a person may have acquired a permanent right of residence if, on 30 April 2006, they had resided legally in the UK for a continuous period of five years. 29 In such cases, the person is deemed to have acquired permanent residence on 30 April 2006. Periods of imprisonment cannot be considered in calculating whether a person has resided in the UK for a period of five years under Regulation 15. Once a person has acquired permanent right of residence under Regulation 15 it continues unless the person is absent from the UK for a period of 2 consecutive years. 30 Continuous Period of Ten Years 25 26 27 28 29 30 Regulation 27(4), 2016 Regulations. Straszewski v Home Secretary [2016] 1 WLR, 24. I v Oberbürgermeisterin der Stadt Remscheid [2012] QB 799. Straszewski v Home Secretary [2016] 1 WLR, 24. Secretary of State for Work and Pensions v Lassal (C 162/09) [2011] 1 C.M.L.R. 31, 38 Article 16(4), The Directive; MG [2014] 2 C.M.L.R. 40. 11/44796775_2 6

24. The assessment of whether a person has resided in the UK for a continuous period of at least ten years will be calculated from the date of the deportation order. 31 Temporary absences not exceeding six months are not deemed to interrupt the ten year period nor are absences on the grounds of compulsory military service. One absence, for a maximum of 12 consecutive months for (i) pregnancy and child birth, (ii) serious illness, (iii) study of vocational training, will also not interrupt the ten year period. 32 25. The ten year period will be deemed to have been interrupted by: (i) any period of imprisonment; 33 or (ii) any absence from the UK for a period exceeding two consecutive years. 34 However, if on the date of the deportation order the person is in prison, but previously to that period of imprisonment, they had resided in the UK for a continuous period of ten years, this will be taken into account when considering if that person qualifies for elevated protection. 35 26. The requirements for calculating a continuous ten year period were considered at length by the Supreme Court in Secretary of State for the Home Department v Vomero. 36 The Supreme Court held that "[w]hether the ten years is to be counted by including or excluding any [period of interruption from imprisonment or absence from the UK of more than 2 years] is however unclear". The Supreme Court referred the following questions to the European Court of Justice: "(2) whether the period of residence for the previous ten years, to which article 28(3)(a) [of the 2006 Regulations] 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, (3) what the true relationship is between the ten year residence test to which article 28(3)(a) [of the 2006 Regulations] refers and the overall assessment of an integrative link." 27. At the date of writing, these points have been not been considered by the European Court of Justice. Until that point, therefore, there may be scope to argue that the ten year period includes periods of absence or imprisonment as the 31 32 33 34 35 36 Land Baden Württemberg v Tsakouridis (C145/09) [2011] 2 C.M.L.R. 11; MG [2014] 2 C.M.L.R. 40. Article 16(3), The Directive. Onuekwere [2014] 2 C.M.L.R. 46 Article 16(4), The Directive. MG [2014] 2 C.M.L.R. 40. [2016] UKSC 49. 11/44796775_2 7

overall assessment must take into account the person's integrative links with the UK. Given the Supreme Court's referral of these questions, however, any cases on these points are likely to wait until the European Court of Justice has answered these points definitively. Public Health 28. Under Regulation 27(7) any decision to deport an EEA national on the grounds of public health must have been taken on the grounds of: (i) a disease which is defined by the World Health Organisation as having "epidemic potential", (ii) a disease listed in Schedule 1 to the Health Protection (Notification) Regulations 2010, or (iii) a disease which has arisen within three months of the person arriving in the UK. Who to contact If you continue to have concerns or wish to seek clarification on anything contained in this information note then you can contact us at info@airecentre.org or by phone on +44 (0) 20 7831 4276 If for any reason we cannot assist then we will refer or signpost you to another organisation that will be able to help. Please note: information provided in this sheet is current up to June 2017 11/44796775_2 8