To avoid deportation, you must be an EU citizen with ten years of continuous residence!
The Court of Appeal (CoA) emphasises that the "ten years" of residence must be as an EU citizen, creating a clearer distinction between those who have always enjoyed primary EU Treaty Rights and those whose rights were derivative for a period. This ruling directly impacts the highest tier of deportation protection.
Background:
Mr. Borges, an Indian-born individual, arrived in the UK in 2002 at the age of 14 as a family member of his Portuguese father. He was issued various residence cards, including a permanent residence card, which was valid until 2017. In 2014, Mr. Borges renounced his Indian citizenship and acquired Portuguese citizenship, thereby becoming an EU citizen.
He was convicted of several crimes while in the UK, not only those of dangerous driving, driving without insurance and driving while disqualified, but also two counts of robbery and one count of burglary. For the most recent offence, he was sentenced to 6 years' imprisonment in 2019. These offences, especially the one committed in May 2019, triggered notices of intention to deport.
Mr. Borges was released from prison in October 2022, and the Secretary of State issued a deportation order on 22 November 2022. Despite having a permanent right of residence under the Immigration (European Economic Area) Regulations 2016 (the EEA Regulations), the Secretary of State argued that time spent in prison broke the continuity of residence required for the highest level of protection against deportation. Mr. Borges appealed to the FTT, which concluded that Mr. Borges was entitled to the highest level of protection, meaning he could only be deported on "imperative grounds of public security". The Secretary of State unsuccessfully appealed to the Upper Tribunal (UT), which led to the current appeal.
Decision:
The CoA found that the FTT erred in law in its approach to imperative grounds of public security and remitted the case. Lady Justice Laing began by stating that while neither Article 28.3 of the Directive 2004/38 nor Section 27(4) of the Immigration (European Economic Area) Regulations 2016 explicitly requires the individual to be an EEA national throughout the ten-year period, it is implicitly clear from the Directive's overall scheme. She provided several reasons for this conclusion, emphasising the fundamental distinction between "EU citizenship" rights (i.e., those primary rights derived from the Treaty) and "derivative rights" (rights of third-country national family members, sourced from the Directive itself). Therefore, Lady Justice Laing concluded that Mr. Borges's residence as a third-country national family member could not count towards the ten-year period required for enhanced protection.
His enhanced protection could only begin from 2014 when he became a Portuguese citizen. Since he had not accumulated ten years as an EU citizen, he was not entitled to the highest level of protection.
The Judge clarified that the factors relevant to the "serious grounds" test (Article 28.2/Regulation 27(3)) and the "imperative grounds" test (Article 28.3/Regulation 27(4)) are exactly the same. The only difference is that the imperative grounds test requires these factors to be present in a "stronger form".
Since the FTT never properly considered the application of the "imperative grounds" test (having mistakenly found that no such grounds were put forward by the Secretary of State), and the UT's attempt to remake the decision was legally flawed, the case needed to be remitted.
Lady Justice Laing also took the opportunity to highlight two aspects of the FTT's approach (in the caveats to the judgement) that, while not formally challenged by the Secretary of State in the UT, were problematic and not tacitly approved by this judgement. She found the FTT’s view that Mr. Borges was "integrated" in the UK to be "difficult to reconcile" with his history of increasingly serious offences and multiple prison sentences. Moreover, time spent in custody (Re: Onuekwere) does not count positively towards the ten years required for enhanced protection.
Implications:
This judgement carries various implications of significance, the most crucial of which is the unequivocal ruling that, in order to qualify for the highest level of protection against expulsion under Article 28(3) of the Directive (and Regulation 27(4) of the UK Regulations), an individual must have been an EU citizen throughout their entire ten-year period of continuous residence. This means that any periods of residence in the UK as a "third-country national family member" (i.e., holding derivative rights through a related EU citizen but not being an EU citizen) do not count towards the ten years required for the "imperative grounds of public security" test. This will significantly impact those individuals who, like Mr. Borges, spent many years in the UK as non-EU family members and only later acquired EU citizenship. Their "clock" for the highest level of protection now effectively starts ticking only from the date they become an EU citizen and not from their initial point of arrival as a family member. This pushes back the date at which they would formally qualify for the strongest deportation safeguards.
This judgement creates a clearer distinction between those who have always enjoyed primary EU Treaty Rights and those whose rights were derivative for a period. While derivative rights offer significant protections, they are not equivalent to the inherent rights of an EU citizen.
The ruling clarifies that the factors to be considered for both "serious grounds" (second tier of protection) and "imperative grounds" (highest tier) are the same. The difference lies solely in the intensity or strength required for those factors to justify deportation.
The judgement re-emphasises, referencing Onuekwere, that imprisonment does break the continuity of residence required for third-country national family members to acquire a permanent right of residence. This means that, if a non-EU family member serves a prison sentence, their "clock" for permanent residence restarts.
