[2024] UKUT 00393 (IAC)

Judges Loke and Rai allowed both appeals in a decision promulgated on 7 February 2024. In relation to the EUSS appeal, the following findings were made. First, it was found that the specific decision made by the Respondent in this case, which referred to conduct committed before 23:00 on 31 December 2020 (the “specified date”) and that as such an application under the EUSS could only be refused on suitability grounds where the decision to make a deportation order is justified on grounds of public policy, public security or public health in accordance with regulation 27 of the Immigration (European Economic Area) Regulations 2016 (as saved, the “EEA Regulations”) was one which fell within paragraph (b)(ii) of the definition of ‘deportation order’ in Annex 1 to Appendix EU.

Secondly, the Appellant was to be treated as a person with a right to permanent residence under regulation 15 of the EEA Regulations if he was able to show that he was a relevant EEA citizen with a continuous qualifying period of five years residence without a supervening event (with reference to the various definitions applicable in Annex 1 to Appendix EU).

Thirdly, on the facts, it was found that the Appellant was continuously resident in the United Kingdom between 2014 and 2019 on the basis of some evidence of work and mental health treatment (including periods as a hospital in-patient and being detained in hospital following criminal offences). As such, the Appellant benefitted from the enhanced protection against deportation and there needed to be serious grounds of public policy, public security or public health to justify his deportation.

Fourthly, further to undertaking the assessment under regulation 27 of the EEA Regulations, the First-tier Tribunal found that the Appellant continues to pose not only a genuine threat of reoffending, but a high risk of reoffending; that he was by the time of the hearing no longer a persistent offender (although he was between 2020 and 2022) and that the offences themselves were not at the higher end of the scale nor have they escalated in seriousness. Overall, the First-tier Tribunal concluded that having regard to the Appellant’s offending and the nature and risk of future offending, that he did not pose a sufficiently serious risk such that there were not serious grounds to believe that he posed a threat to public policy or security.

The First-tier Tribunal therefore found that the Respondent’s deportation order was not justified under regulation 27 of the EEA Regulations and as such, the definition of deportation order in paragraph (b)(ii) of the Annex to Appendix EU was not met and the Appellant’s application under the EUSS did not fail on suitability grounds.

In addition, the Appellant’s human rights appeal was allowed on the basis that in light of the findings above, it could not be said that the Appellant’s deportation was in accordance with the law as he met the requirements set out in Appendix EU. Therefore, the Appellant’s removal would not be in accordance with the law, nor could it be said to be in the public interest and as such would breach Article 8 of the European Convention on Human Rights.