Court of Appeal clarifies legal standards for deporting EU citizens convicted of serious crimes in landmark case involving Polish national.

Citation: [2024] EWCA Civ 18
Judgment on

Introduction

The case “The Secretary of State for the Home Department v AA (Poland)” [2024] EWCA Civ 18 deals with the appeal against deportation of an EU citizen convicted of serious sexual offences in the UK. The ruling touches upon the core concepts of European Union (EU) citizenship rights, Article 8 of the European Convention on Human Rights, and their deployment in UK deportation proceedings. The decision explores the intersection of EU law and UK statutory instruments in immigration matters, especially concerning serious offenders.

Key Facts

AA, a Polish national with a history of serious sexual offending, including against his own infant daughter, was sentenced to five years’ imprisonment in the UK. Following his release, the Secretary of State for the Home Department (SSHD) decided to deport AA based on his criminal conduct representing a genuine, present, and sufficiently serious threat to the fundamental interests of society as per the Immigration (European Economic Area) Regulations 2016 (the 2016 Regulations). The First-tier Tribunal (FtT) allowed AA’s appeal against deportation, considering his rights under the EU Treaties and Article 8 of the European Convention on Human Rights. The Upper Tribunal (UT) dismissed the SSHD’s appeal against that decision, prompting the SSHD to bring a second appeal to the Court of Appeal (Civil Division).

The Court of Appeal examined several legal principles, chiefly among them:

  1. Principle of Integration Under EU Law: The Court scrutinized AA’s level of integration within UK society according to Directive 2004/38/EC, also known as the Citizens’ Rights Directive, with emphasis on Article 27 and 28. It assessed AA’s right to resist expulsion based on his duration of residence, family and economic situation, social and cultural integration, and connections with Poland.

  2. Seriousness of Threat Posed by Personal Conduct: Restivo (EEA – prisoner transfer) [2016] UKUT 449 (IAC) was applied to assess whether AA’s conduct represented a sufficiently serious threat justifying deportation on imperative grounds of public security. The Court confirmed that measures in place to manage a threat (e.g., incarceration) should not be factored into the assessment of the threat’s seriousness.

  3. Proportionality Principle: The Court evaluated whether AA’s removal was proportionate under Regulation 27(5)(a) of the 2016 Regulations, echoing EU principles enshrined in Lumsdon and others v Legal Services Board [2015] UKSC 41.

  4. Article 8 of the European Convention on Human Rights: The Court dissected the relationship between the 2016 Regulations’ proportionality assessment and the structured analysis mandated for Article 8 claims by Part 5A of the Nationality Immigration and Asylum Act 2002, emphasizing s 117C, the public interest question regarding deportation of foreign criminals.

Outcomes

The Court of Appeal identified several legal errors in the approach of the FtT:

  • The FtTJ improperly considered integrative links formed during the period of AA’s criminal conduct and consequent imprisonment.
  • The FtTJ erroneously took into account mitigating measures such as prison sentences and SHPOs in assessing the level of threat posed by AA.
  • The FtTJ’s approach to proportionality was flawed as it did not accord with EU principles, and there was insufficient evidence to conclude the effect of deportation on AA’s rehabilitation in Poland.
  • Regarding the human rights claim under Article 8, the FtTJ conflated the proportionality assessment under EU law with the structured analysis under Part 5A of the 2002 Act, thereby misapplying the “very compelling circumstances” test prescribed by s 117C(6).

The Court of Appeal decided to set aside the UT’s order and remit the case to the FtT for a fresh decision adhering to the proper application of the relevant legal principles articulated in the judgment.

Conclusion

In clarifying these critical legal principles, the Court of Appeal has reaffirmed the rigorous standards that must be applied when considering the deportation of EU citizens who have committed serious crimes in the UK. The decision underscores the importance of separating the assessments required under EU law from those specific to the European Convention on Human Rights, particularly in the structured application of the Nationality Immigration and Asylum Act 2002. The case is a compelling reminder of how the intersecting layers of EU and UK law play a vital role in deciding the fates of individuals within the UK immigration context.

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