The Upper Tribunal recently decided that under certain circumstances where an EEA national has been deported he/she should be reunited with his/her family as quickly as possible. Further that where an Appellant’s removal was not justified then an Appellant’s absence from the UK should not be treated as breaking the continuity of any residence relevant for the right of permanent residence in the case of Gheorghiu (reg 24AA EEA Regs – relevant factors)  UKUT 24 (IAC).
Facts of EEA Case
The Appellant in this case was a Romanian national who was residing and working in the UK since 2002. The Appellant lived in the UK with his wife and three children who had entered the UK to join him more recently in 2013 and 2014. In June 2014 it seems the Home Office became aware that he had been convicted of rape in 1990 in Romania and of three forestry offences between 2001 and 2002. The Appellant received a custodial sentence of more than 6 years for his convictions. On 28 January 2015 the Home Office decided to deport the Appellant due to the serious nature of his offences.
It was assessed that the Appellant posed a threat to public policy and that his deportation was therefore proportionate under regulation 21 of the Immigration (EEA) Regulations 2006 (the Regulations).The Home Office found the Appellant’s case totally without merit under regulation 24AA of the Immigration (EEA) Regulations 2006 (the Regulations). The Appellant was detained and subsequently removed in March 2015 before an appeal took place. The Appellant then made an application under paragraph 29AA of the Immigration (EEA) Regulations 2006 to attend his immigration appeal but his application was refused. The appeal went ahead without him and the appeal against the deportation was allowed in the Appellant’s favour.
The Judge in the First-tier Immigration Tribunal held:
‘The fact that the appellant has committed previous offences is not a matter which can solely justify deportation; there is no evidence which leads me to find that he is a genuine, present and sufficiently serious threat to one of the fundamental interests of society; his present conduct in the last seven years, has been that of a law abiding and working member of United Kingdom society, exercising treaty rights as a worker. I do not find that deportation is justified on imperative grounds of public security, because there is no evidence which shows that he represents a genuine, present and sufficiently serious threat to public security. The threshold of imperative grounds is a high level of justification for deportation, and I find that the decision made by the respondent in this case has not reached that level.”
Home Office Appeal
The Home Office then appealed against this decision. The Upper Tribunal did find the First-tier judge had erred in law in finding that the Appellant had been lawfully resident for ten years as the facts and law did not support this conclusion. However, the Upper Tribunal found that this did not affect the outcome of the appeal , as the Appellant clearly acquired the right to reside in the UK permanently. The Upper Tribunal dismissed the Home Office appeal.
Immigration Tribunal Decision
The Upper Tribunal having dismissed the Home Office appeal decided the Appellant should be reunited with his family as quickly as possible, the Appellant’s removal was not justified and should not be treated as breaking the continuity of any residence relevant for the right of permanent residence by his wife and children. It was also reiterated that the Appellant himself was entitled to permanent residence on his return and a residence card.
Impact on EEA Nationals
The Upper Tribunal in their decision went on to consider the circumstances in which an EEA national who has been deported before the outcome of his or her appeal is known might be re-admitted to attend his or her appeal hearing. At paragraph 22 Blake J found:
We have no doubt that if an application to suspend certification enabling pre-appeal removal were made in an EEA case, the judge would take due account of the following factors:
(i) an EEA national exercising Treaty rights of employment and residence in an EEA state at the time of the removal decision are significantly different from those of aliens generally; interference with the right of residence is not permitted unless there is a serious and present threat…that cannot include…a general deterrence or the interest of maintaining purely domestic immigration control;
(ii) that removal pending appeal of a principal wage earner of a family who is both a spouse and a parent of a minor child involved in the child’s daily life is itself an interference with both the right to respect for family life under Article 8 and the Fundamental rights and the EU right of residence;
(iii) in cases of serious criminality, if there is no evidence of continuing risk to the public, the case for removal may not be a strong one; where there is some evidence of risk that is being addressed and rehabilitation of the offender is promoted by the family and employment circumstances in an EEA state, then in the case of people entitled to permanent residence, substantial weight may be afforded to the duty to promote rehabilitation;
(iv) in cases where the central issue is whether the offender has sufficiently rehabilitated to diminish the risk to the public from his behaviour, the experience of immigration judges has been that hearing and seeing the Appellant give live evidence and the enhanced ability to assess the sincerity of that evidence is an important part of the fact-finding process.
UK Immigration Legal Advice for EEA National Appeals
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