[2024] UKUT 00362 (IAC)

The appellant is a national of Italy. He claims to have arrived in the United Kingdom on 1 February 2016. On 25 April 2017 he was issued with a registration certificate as a family member of an EEA national. On 11 October 2018 he was convicted at Warwick Crown Court for offences of robbery, possession of a bladed article and possession of cannabis. On 7 July 2020 he was sentenced to a 3 years and 10 months term of imprisonment.

On 7 September 2019, the appellant made an application under the EU Settlement Scheme. On 28 July 2020 he was issued with a Notice of liability to deportation pursuant to the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations 2016”). The appellant made representations to the respondent in response. On 23 July 2021, the appellant was served with a Notice of Decision to make a Deportation Order and also given the opportunity to set out any further reasons, with any further evidence, setting out why he should not be deported, including evidence that immediately prior to 23:00hrs on 31 December 2020, the appellant was lawfully resident in the UK by virtue of the EEA Regulations 2016 or that he is a ‘relevant person’ as defined in regulation 3 of the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020. In response, submissions were received from the appellant dated 02 August 2021, setting out reasons why he should not be deported from the UK.

On 27 January 2022, the respondent made a decision to refuse the appellant’s human rights claim. The respondent concluded there is no evidence that immediately prior to 23:00 GMT on 31 December 2020, the appellant was lawfully resident in the United Kingdom by virtue of those regulations and that he has an outstanding application under the EU Settlement Scheme. The respondent therefore decided to pursue the appellant’s deportation under the UK Borders Act 2007.

The respondent noted the appellant has been convicted of criminal offences, as set out in her notice of decision dated 23 July 2021. The respondent deemed the appellant’s deportation to be conducive to the public good under section 5(1) of the Immigration Act 1971 pursuant to section 3(5) and in accordance with section 32(5) of the UK Borders Act 2007. The respondent concluded the exceptions to deportation set out in section 33 of the UK Borders Act 2007 do not apply and the respondent is therefore required to make a deportation order against the appellant. In a separate decision, the extant application made by the appellant under the EU Settlement Scheme on 7 September 2019 was refused by the respondent on suitability grounds.

The appellant’s appeal against the respondent’s decision dated 27 January 2022 to refuse the appellant’s human rights claim was allowed by the First-tier Tribunal for reasons set out in a decision promulgated on 16 June 2022.

At the outset of the hearing before the First-tier Tribunal, counsel for the appellant raised a preliminary matter. That is, whether the respondent had adopted the correct deportation regime in reaching her decision. The appellant claimed the respondent should have reached a decision under the EEA Regulations 2016, rather than the Immigration Act 1971 and UK Borders Act 2007. Having considered the Withdrawal Agreement, and the various Acts, Regulations, and the respondent’s guidance; Public policy, public security or public health decisions, published for Home Office staff on 17 November 2021, the judge concluded that the EEA Regulations 2016 continue to have effect as far as the appellant is concerned.

In summary, the judge had noted that the appellant’s criminal conduct had occurred in December 2017 and that on 7 September 2019, the appellant had made an application under the EU Settlement Scheme. Although not expressed in this way, referring to the legal framework, the Judge concluded:

At paragraphs [41] to [45] of the decision, the First-tier Tribunal Judge said:

“41.

There is no definition of what is meant by the period immediately prior to the end of the transition period. On balance, I am persuaded that the Appellant’s employment up until July 2020 before his imprisonment for the final months before the end of the transition period, does satisfy the requirement that the Appellant be exercising Treaty Rights in the period immediately prior to 23.00 on 31 December 2020.

42.

I similarly consider that having not been made subject to any deportation order and having come to the UK lawfully under EU law, that he was continuing to reside in the UK ‘lawfully’ at the necessary date; to use the language of the Citizen’s Rights regulations.

43.

Therefore, on the Respondent’s own policy and on my reading of the relevant Acts and Regulations, the Appellant was to be covered by the saved 2016 Regulations.

44.

It is uncontroversial that the rights provided by directive 2004/38/EC as referred to in Article 20 of the WA, are reflected domestically in the Immigration (European Economic Area) Regulations 2016. Provision for deportation and exclusion is provided in those regulations through regulations 23 and 27. For this reason, I consider that a deportation decision taken by the Respondent pursuant to domestic legislation rather than the 2016 regulations, is not in accordance with the law.

45.

On this basis I find that the Respondent’s decision would amount to a breach of the Appellant’s Article 8 rights. As such, the decision to deport the Appellant would be unlawful pursuant to section 6 Human Rights Act 1998.”