ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Mr Justice Henshaw
Upper Tribunal Judge Gill
UI-2023-003927
Strand, London, WC2A 2LL |
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B e f o r e :
LADY JUSTICE ELISABETH LAING
and
LORD JUSTICE SNOWDEN
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant |
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MYRON FRANCISCO JOSEPH BORGES |
Respondent |
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Shahadoth Karim and Michael West (instructed by Gordon and Thompson Solicitors) for the Respondent
Hearing date: 9 April 2025
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Crown Copyright ©
Lady Justice Elisabeth Laing:
Introduction
1. What level of protection does Mr Borges have against removal? There is no dispute that Mr Borges had resided in the United Kingdom throughout the ten years before the Decision. The Secretary of State's case is that in order to benefit from the highest level of protection against removal, Mr Borges had to be a citizen of an EU member state throughout that period. Mr Borges's case is he has that that protection because (i) he had resided in the UK for that period and (ii) he had become a citizen of an EU member state during that period. If his argument is right, a person who has resided in the United Kingdom for that period as a non-EU citizen, but who becomes a citizen of an EU member state on the day before a removal decision, would benefit from that protection.
2. If Mr Borges succeeds on the first issue, did the F-tT err in law in its approach to the test for removal which did apply in his case?
The facts
The Directive
'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; or
b. are a minor, except if the expulsion is necessary for the best interests of the child…'
The Regulations
'A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who –
(a) has a right of permanent residence under regulation 15 and who 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 in the best interests of the person concerned…'
Some of the authorities
FV (Italy) v Secretary of State for the Home Department (C-424/16) and B v Land-Baden Würtemburg (C-316/16)
Vomero/FV (Italy) v Secretary of State for the Home Department
The Decision
Determination 2
The Secretary of State's grounds of appeal to the UT
The F-tT's grant of leave to appeal
Determination 3
'49. Ms Everett submitted that, if we concluded that the judge was correct to find that [Mr Borges] was entitled to enhanced protection, [the UT] could decide whether or not imperative grounds of public security existed; in her view, there would be no need for a further hearing. [The Secretary of State] relies upon the OASys report. There is no further evidence [the Secretary of State] would rely upon.
50. In response, Mr Karim said that, if we were to conclude that there were no imperative grounds for [Mr Borges's] removal, he was content for us to proceed to re-make the decision on the appeal. However, if we were of the view that there were potentially imperative grounds, [Mr Borges] should have the opportunity to address the Tribunal; furthermore, in that case, he submitted that a remittal to the F-tT would be necessary as [Mr Borges's] circumstances had changed, in that he now has a son.
51.We have some difficulty with [the Secretary of State's] submission that the FtT ought of its own motion to have considered whether there are imperative grounds of public security for [Mr Borges's] removal, even in circumstances where (a) the primary decision-maker had not put forward any such grounds and (b) [the Secretary of State] did not invite the FtT to find any such grounds to exist. However we find it unnecessary to decide [whether] the FtT might nevertheless have erred in law by not considering the issue, because having considered the matter ourselves, we find no such grounds to exist.'
The UT's reasons for refusing permission to appeal to this court
1. The UT erred in law in counting periods of residence when Mr Borges was not a citizen of an EU member state towards the ten years' qualification period.
2. If Mr Borges was entitled to enhanced protection, the UT erred in holding that a properly directed tribunal would have been bound to find that there were no imperative grounds, and that there was no material error of law in determination 2.
The grounds of appeal to this court
1. The UT misconstrued regulation 27(4) of the Regulations and erred in holding that Mr Borges enjoyed the highest level of protection against removal.
2. The UT erred in upholding the decision of the F-tT that there were no imperative grounds of public security.
The submissions
Discussion
Ground 1
Ground 2
The caveats to this judgment
The Respondent's Notice
Disposal
Lord Justice Snowden
"(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.
(24) 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. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life…"
"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; or
b. are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989."
Lord Justice Baker