[2024] UKUT 00066 (IAC)

These three appeals were listed together in order to permit the Upper Tribunal to resolve a number of issues of law concerning the SSHD’s power to deport EEA nationals who had resided in the United Kingdom and have done so since before the United Kingdom left the European Union and the rights of appeal against such decisions.

We are in these appeals concerned only with EU nationals, rather than Swiss nationals or nationals of other EEA states. There are different Withdrawal Agreements relating to those states but they mirror broadly the WA with the EU, as do the domestic legal provisions.

Mr ZA is a citizen of the Netherlands. He has resided in the United Kingdom since 2008 when he was 15/16 years of age. His case is that he had acquired the right of permanent residence under EU law (which the SSHD does not accept) prior to his conviction on 30 July 2021 for Grievous Bodily Harm in an incident which took place on 28 November 2019. On 30 June 2021 he made an application under the EUSS and on 11 October 2021 was notified by the SSHD of her intention to make a deportation order against him. He made representations as to why he should not be deported; and made a human rights claim. On 3 May 2022, the SSHD made two decisions: to refuse his human rights claim and to make a deportation order pursuant to s 32 (5) of the 2007 Act; and, to refuse his EUSS application.

ZA’s appeal to the FtT was allowed on human rights grounds but was dismissed under the EUSS on the basis that ZA had not acquired permanent residence. The SSHD was granted permission to appeal and on 3 May 2023, UTJ Kebede set aside the decision in its entirety.

AS is a national of Poland. He has resided in the United Kingdom since 2007 when he was 11. He has been convicted of multiple offences between 2013 and 2020, the most serious being a conviction on 14 October 2020 for possession with intent to supply drugs for which he was sentenced to five years’ and three months’ imprisonment. On 24 October 2021, the SSHD served a notice of intention to deport him on the basis that s32 of the 2007 Act applied. On 9 November 2021, AS’ solicitors made representations, making a human rights claim, and asserting that he had made an application under the EUSS in February 2020. On 7 March 2022 he was asked to provide details of that application. The SSHD was not satisfied by what was provided that he had made an application under the EUSS in February 2020.

On 23 May 2022 the SSHD refused AS’s human rights claim and made a deportation order against him. He was, however, satisfied that he had been lawfully resident in the United Kingdom at the end of the transition period. On 30 May 2022, AS appealed against that decision under section 82 of the 2002 Act and on 30 June 2022 made an application under the EUSS which is still pending.

On 20 January 2023, having concluded that this was an appeal to which the EEA Regulations applied and that the relevant test was whether imperative grounds were met, FtTJ Dixon allowed the appeal. The SSHD was granted permission to appeal on the grounds that the FtT had wrongly considered the appeal under the EEA Regulations and had failed to give adequate reasons for finding that the AS had made an application under the EUSS in February 2020.

RR is a national of Lithuania. He came to the United Kingdom in about 2005. On 21 January 2020 he was granted settled status under the EUSS. On 13 July 2022 he was convicted of several offences which had started on 12 October 2021 and for which he was sentenced to two years’ imprisonment. On 9 August 2022, the SSHD notified him that she intended to deport him pursuant to s32 of the 2007 Act; that he had a right of appeal under reg 6 of the CRA Regulations; and that consideration would be given to any representations and whether those would give rise to an appeal under s82 of the 2002 Act. A one-stop notice under section 120 of that Act was attached to that notification.

On 23 August 2022, RR appealed against the decision on the grounds that it breached his article 8 rights and that his deportation was not conducive to the public good. On 18 December 2022, the SSHD made a deportation order against him.

On 12 February 2023, the FtT allowed RR’s appeal on human rights grounds. The SSHD was granted permission to appeal against that decision on the grounds that the judge had misdirected himself as to the law and had given inadequate reasons for his decision.