Engin Yalcin v Secretary of State for the Home Department
[2024] EWCA Civ 74
The Secretary of State for the Home Department v AA (Poland)
19 January 2024
[2024] EWCA Civ 18
Court of Appeal
A Polish man was convicted of serious sex crimes against his daughter. A court initially blocked his deportation, but a higher court overturned that decision. The higher court said the lower court didn't correctly consider whether the man was well-integrated into UK society and the seriousness of his crimes. The case now goes back to the lower court for a fairer decision.
Key Facts
- •AA, a Polish national, was convicted of serious sexual offences against his daughter, including sexual assault and creating indecent images.
- •He received a five-year prison sentence and was subject to a Sexual Harm Prevention Order (SHPO).
- •The Secretary of State for the Home Department (SSHD) issued a deportation order under the Immigration (European Economic Area) Regulations 2016.
- •AA appealed, arguing that deportation would infringe his EU rights and his right to private and family life under Article 8 ECHR.
- •The First-tier Tribunal (FtT) allowed AA's appeal, while the Upper Tribunal (UT) dismissed the SSHD's appeal.
- •The SSHD appealed to the Court of Appeal.
Legal Principles
Expulsion of EU citizens is governed by Directive 2004/38/EC, requiring proportionality and consideration of factors like length of residence, family situation, and integration.
Directive 2004/38/EC (Citizens' Rights Directive), Articles 27 & 28
The 10-year residence provision in Article 28(3) of the Directive is not to be interpreted literally; an overall assessment of integration is necessary, considering imprisonment's impact on integrative links.
Case C-145/09 (Land Baden-Wurtemburg v Tsakouridis), Secretary of State for the Home Department v Viscu [2019] EWCA Civ 1052
Regulation 27 of the 2016 Regulations sets out the requirements for deportation decisions concerning EEA nationals, including proportionality, and the need for the decision to be based exclusively on the personal conduct of the individual.
Immigration (European Economic Area) Regulations 2016, Regulation 27
When assessing whether a person’s conduct represents a “genuine, present and sufficiently serious threat,” mitigating measures like imprisonment should not be considered.
Restivo (EEA – prisoner transfer) [2016] UKUT 449 (IAC)
Schedule 1 to the 2016 Regulations provides guidance on public policy and security considerations, including the weight to be given to integration links formed around the time of offending.
Immigration (European Economic Area) Regulations 2016, Schedule 1
Article 8 ECHR (right to private and family life) requires a proportionality assessment. In deportation cases involving foreign criminals, section 117C(6) of the Nationality Immigration and Asylum Act 2002 requires “very compelling circumstances” to outweigh the public interest in deportation.
Article 8 ECHR, Nationality Immigration and Asylum Act 2002, section 117C(6)
Outcomes
The Court of Appeal allowed the SSHD's appeal on all four grounds.
The FtT erred in law by misapplying the 2016 Regulations (failing to give little weight to integration links formed around the time of the offences and misinterpreting the “genuine, present and sufficiently serious threat” test), and by failing to properly apply the Article 8 ECHR proportionality assessment under Part 5A of the 2002 Act.
The case was remitted to the FtT for a fresh decision.
The FtT's errors in applying the relevant legal principles required a fresh hearing to ensure a lawful and proportionate decision.