[2024] UKUT 00393 (IAC)

So far as relevant to this appeal, Appendix EU sets out the requirements for indefinite leave to remain in EU11 for a relevant EEA citizen, which in condition 3 are that the applicant has also completed a continuous qualifying period of five years without any supervening event occurring.

Paragraph EU15 sets out the suitability requirements, so far as relevant, as follows:

Whilst Mr Malik KC suggested that it would have been open to the Respondent to refuse the Appellant’s application under paragraph EU15(2) on the basis that she deemed his presence not to be conducive to the public good because of conduct after the specified date; it was accepted that this was not the basis relied upon in the decision letter.

Annex 1 to Appendix EU contains definitions of terms set out in the main rules, which so far as relevant include:

There was no dispute between the parties as to the correct approach to the issue of interpretation of the Immigration Rules, in accordance with the principles in Mahad v Entry Clearance Officer [2009] UKSC 16, [2010] 2 All ER 535 and Wang v Secretary of State for the Home Department [2023] UKSC 21, [2023] 1 WLR 2125. We follow this well-established approach to interpretation, the dispute in this case being the application of those principles on the facts of this case.

In summary, the Respondent’s position is that the definition of deportation order is expressly clear that there are two options, in the alternative, relating to conduct before and after the specified date and that where a deportation order refers to conduct in both time periods, it is sufficient that either (i) or (ii) is satisfied for a refusal under paragraph EU15(1)(a) of Appendix EU. Whilst it was accepted that both paragraph (b)(i) and (ii) would be engaged in principle in a deportation decision that relied on conduct before and after the specified date, it was sufficient for one or the other to be met for the purposes of finding a deportation order is in place for a refusal on suitability grounds under paragraph EU15(1) in Appendix EU.

On the facts of this appeal, it was therefore sufficient that the deportation decision relied on conduct after the specified date to meet the definition of deportation order in paragraph (b)(i), irrespective of the reliance on conduct prior to the specified date or whether the decision in relation to that was in accordance with regulation 27 of the EEA Regulations (which in any event the Respondent submits was satisfied for the reasons set out below in relation to the third ground of challenge). Mr Malik KC referred to the Respondent’s decisions letters which he submitted left no doubt that the conduct after the specified date was relied upon. In particular, one letter begins with reference to the Appellant’s convictions in 2021 and all letters refer to the history of offending between 2016 and 2021.

In addition, on the matter of construction, Mr Malik KC submitted that the Respondent’s approach was entirely consistent with the obvious purpose of the Immigration Rules and the enabling primary legislation behind it. The intention was to abolish rights of free movement to EEA citizens, with power to restrict those rights on the basis of conduct after the specified date which made their presence in the United Kingdom not conducive to the public good.

In summary, the Appellant’s position is that there was no error of law in the First-tier Tribunal’s decision on the interpretation or application of the definition of deportation order or paragraph EU15(1) of Appendix EU. That is because, on the facts of this case, the Respondent has expressly relied on conduct both before and after the specified date to show that the Appellant was a persistent offender. If the Respondent considered that post specified date conduct was alone sufficient, then the decision(s) themselves would not have needed to refer at all to previous conduct, nor undertake the detailed assessment under regulation 27 of the EEA Regulations that she did. The focus of the actual decisions made all point to a deportation order focused on paragraph b(ii) of the definition in Appendix EU.

Mr Khubber further relied on the Respondent’s actual approach in the decisions under appeal here as being entirely consistent with her own policy as to the correct approach where conduct both before and after the specified date is relied upon. It was however accepted that the policy relied upon before the First-tier Tribunal (which has since been updated further), dated from June 2023 and was therefore not in force at the time of the decisions under appeal in this case. As such, we do not find it of assistance to the issues raised in this appeal to refer to the policy further, beyond noting that the current policy appears to be at odds with the Respondent’s general position as to the approach to be taken in circumstances such as of this appeal where there is conduct which falls both before and after the specified date.

As a matter of construction, we accept that on its face, the ordinary and natural meaning of a provision which contains two different options, separated by an ‘or’ is such that satisfaction of one or the other would be sufficient for the definition to be met. However, when considering the specific provision in this appeal, the nature of the definition itself directs to two different factual scenarios which are not themselves mutually exclusive, and as accepted by Mr Malik KC could both be engaged in cases such as the present where there is pre and post specified date conduct committed. Paragraph (b)(i) in the definition of deportation order is directed solely at conduct committed after the specified date, whereas paragraph (b)(ii) is directed solely at conduct committed before the specified date. In a straightforward case where the conduct is solely before, or solely after the specified date, it is clear which of the two options would be applicable and need to be met for a relevant deportation order to be in place and therefore a refusal under paragraph EU15 of Appendix EU.

In circumstances such as in the present case, where both definitions are potentially engaged, we do not find that it is sufficient, in particular considering the wider context of the EUSS, for only one to be met and therefore the definition must be interpreted to read ‘and/or’ between paragraphs (b)(i) and (ii). Contrary to Mr Malik KC’s submissions that such a reading would lead to absurd results which can not have been intended, we find that anything other than such a reading would do so. Whilst one of the clear intentions of Brexit was to abolish free movement rights and to allow purely domestic regulation of migration after the specified date; that was subject to certain agreed ongoing protections and safeguards in relation to conduct of EEA nationals prior to the specified date, in particular, including those covered by the Withdrawal Agreement.

We did not hear submissions on the Withdrawal Agreement (and have not considered it necessary to invite written submissions on this point), however, its impact on deportations of EEA nationals relating to conduct before the specified date has recently been set out in Abdullah & Ors (EEA, deportation appeals, procedure) [2024] UKUT 00066 (IAC) and in the case of Vargova (EU national: post 31 December 2020 offending: deportation), [2024] UKUT 00336 (IAC) (handed down on 26 September 2024). In the latter, the importance of distinguishing between conduct before and conduct after the specified date, with additional safeguards and requirements for cases including (but not limited to) conduct before the specified date, was highlighted.

In the present appeals, if it was sufficient for a deportation order, which on the facts relies on both pre and post specified date conduct, to meet the definition in paragraph (b)(i) only in relation to post specified conduct; that would effectively remove all of the wider protections available to EEA nationals in relation to conduct before the specified date and undermine those safeguards set out in the Withdrawal Agreement and elsewhere as part of the EUSS. We do not consider that to have been the likely intention of the Respondent in drafting the definition of deportation order in the Annex to Appendix EU and if there were to be a deliberate departure from the applicable safeguards for EEA nationals in relation to conduct before the specified date simply because there was also conduct after the specified date, we would have expected express provision to be made for such an outcome. For example, for there to have been included an additional sub-paragraph (iii) setting out the requirements where conduct covers both time periods.

In addition, we do not consider the interpretation above in any way prejudices the Respondent’s ability to refuse EUSS applications on suitability grounds where reliance is placed on conduct committed after the specified date given that in addition to the refusal on the basis of a deportation order in paragraph EU15(1) there is what appears to be an alternative wide ranging provision for refusal in paragraph EU15(2) on the basis that the Respondent deems an applicant’s presence in the United Kingdom as not conducive to the public good (again on the basis of conduct committed after the specified date). Mr Malik KC submitted that this was an option open to the Respondent on the facts of this particular appeal and would similarly fulfil what he described as the policy objectives of ending free movement for matters occurring after the specified date.

Further, on the facts in this case, we have real difficulty reconciling the Respondent’s submitted position as a matter of interpretation of the meaning of deportation order with the approach actually taken in the decisions under appeal. If it really was the case that a deportation order only needed to satisfy paragraph (b)(i) or (ii) even if conduct both before and after the specified date were relied upon, then the almost exclusive focus on the requirements which are set out in paragraph (b)(ii) as to the decision being in accordance with regulation 27 of the EEA Regulations in both the deportation decision and the EUSS decision, but particularly in the latter, would be entirely unnecessary.

Specifically, the EUSS decision makes no express reference to which part of the definition is relied upon and could, on the Respondent’s case as now presented, need not have gone beyond the first few paragraphs of the decision and simply said that there was a deportation order as defined in paragraph (b)(i) of the Annex to Appendix EU in force and therefore the application is refused under paragraph EU15(1). The focus in the decision letter instead on matters relevant only to conduct prior to the specified date was not set out in the alternative to this. Instead, the Respondent’s approach in both decision letters indicates her view, at least at that time, that it was necessary for the definition in paragraph (b)(i) and (ii) to be met where conduct fell within both sections. That is entirely consistent with the correct approach we have found above within the context of the wider EUSS scheme and EU Withdrawal Agreement.

In conclusion therefore, the definition of “deportation order” in paragraph (b) of Annex 1 to Appendix EU of the Immigration Rules must be read as follows (emphasis added):

The time period of the conduct relied upon by the Respondent will dictate whether sub-paragraph (i) and (ii) will apply (if conduct committed both before and after the specified date is relied upon) or whether paragraph (i) or (ii) will apply (if only conduct committed before or after the specified date is relied upon).

As a final point in relation to the first ground of appeal, the initial written grounds of appeal also raised a distinct point as to what was said to be the absurd consequence of the Appellant being given the enhanced protection of serious grounds of public policy and public security in circumstances where he had not in fact established permanent residence under the EEA Regulations. This was not however pursued in the Respondent’s skeleton argument or orally. For completeness, as the point was not formally withdrawn, we find no error of law in the First-tier Tribunal’s decision on this point as set out in paragraphs 17 to 24. We consider that the absurdity referred to is not the result of any issue of ambiguity or construction of Appendix EU to the Immigration Rules but an obvious and natural consequence of the policy and drafting chosen by the Respondent; which is entirely in line with a consistent policy choice within the EUSS to focus only on residence in the United Kingdom and not the fulfilment of conditions for such in accordance with the EEA Regulations. The result is particularly obvious in the definition of deportation order in Annex 1 to Appendix EU, paragraph (b)(ii) which refers to the application of regulation 27 of the EEA Regulations “irrespective of whether the EEA Regulations apply to the person”. Whilst the result is more generous than would seem to have been required under the EEA Regulations if still in force, or required by the EU Withdrawal Agreement, that is expressly what the provision provides for. This conclusion is also consistent with the decision in Abdullah.

For these reasons we find no error of law in the First-tier Tribunal’s decision on the first ground of appeal.