Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2023-002247
First-tier Tribunal No: DA/00059/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

17th March 2025

Before

UPPER TRIBUNAL JUDGE LANE

Between

STEPHAN DELANO CHANTRE GOMES
(NO ANONYMITY ORDER MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation:

For the Appellant: Mr Rasheed
For the Respondent: Mr McVeety, Senior Presenting Officer

Heard at Manchester Civil Justice Centre on 22 November 2024

DECISION AND REASONS
1. The appellant is a citizen of Cape Verde (but see also below) born on 12 August 1989. He arrived in the United Kingdom 1998 at the age of nine years. He was issued with a residence card in line with his mother as a family member of an EEA national and was issued with a permanent residence card in line with his mother on 15 September 2017, valid until 15 September 2027. He applied for leave under the EU Settlement Scheme on 26 January 2019 and on 5 February 2019 he was granted settled status - indefinite leave to remain in the UK under the EUSS.
2. On 5 June 2020 the appellant was convicted on two counts of possession with intent to supply Class A controlled drugs, heroin and crack cocaine, and on two counts of being concerned in supplying Class A controlled drugs, cocaine and heroin and acquiring/ using/ possessing criminal property, between October 2019 and March 2020. On 10 November 2020 he was sentenced to eight years and six months’ imprisonment. The Judge sentencing the appellant referred to him having been the person in charge of a county line known as the Justin Line, which he operated from his address in Croydon and which, over the period in question, supplied a large quantity of Class A drugs to the Portsmouth area. The Judge considered that the appellant was well above the ordinary significant role dealer but well below the sort of leading role fulfilled by the elders sitting above him in the chain of command.
3. The respondent made a decision to deport the appellant on 27 April 2022. In that decision, the respondent did not accept the appellant’s submissions that he had been continuously resident in the United Kingdom for 10 years in accordance with the EEA Regulations 2016 and noted that he had gone to prison in 2020 after a period of eight years lawful residence in the UK. The respondent noted that regulation 27(4) did not extend the imperative grounds protection to non-EEA nationals in any event and therefore did not give consideration to whether the appellant’s deportation was justified on imperative grounds of public security. The respondent accepted that the appellant had permanent residence in the UK and therefore considered whether his deportation was justified on serious grounds of public policy or public security.
4. The appellant appealed to the First-tier Tribunal which, in a decision dated 23 February 2023, allowed the appeal. The Secretary of State appealed to the Upper Tribunal which in an error of law decision promulgated on 22 November 2023, set aside the First-tier Tribunal’s decision and directed that the decision should be remade in the Upper Tribunal. An initial hearing in the Upper Tribunal took place before me in Manchester Magistrates Court on 8 January 2024 (Principal Resident Judge Blum subsequently made a transfer order from Upper Tribunal Judge Kebede to myself on 25 January 2024). I heard the appellant’s evidence at that hearing (the appellant had been produced from detention from which he was subsequently released) and I directed that the appellant need not attend future hearings which would proceed by way of submissions only.
5. At the January 2024 hearing, the nationality of the appellant’s natural father was raised for the first time in the proceedings by counsel for the appellant. The appellant now asserts that his natural father was a Portuguese citizen and that his wife (the appellant’s natural mother) derived her status in the United Kingdom from him (who, it was claimed, exercised Treaty Rights at all material times). The appellant submitted that consequently the appellant himself is a direct national dependant of his EU citizen father and, as such regulation 27 (4) does apply to him and that he may not be deported save on imperative grounds of public security. However, evidence of the appellant’s father’s immigration status and nationality were not available at the January 2024 hearing so for that reason I adjourned the hearing. As a result of unfortunate administrative confusion, the hearing was not listed for effective disposal until November 2024 in Manchester.
6. Both parties now accept that the appellant’s father was a Portuguese citizen and Mr McVeety told me that the Secretary of State understood that, contrary to the position as understood by all parties at the date of the decision to deport, it now appeared that the appellant has the ‘imperative’ protection provided by regulation 27 (4). He submitted that this established an ‘incredibly high’ threshold for the deportation of the appellant but submitted that the appellant had been convicted of a serious drugs offence involving ‘county lines.’ Mr McVeety accepted (as I told the parties I had found as a fact following the initial hearing in the Upper Tribunal at which I had heard the appellant’s evidence) that the appellant has contact regularly with his children. He also agreed that the appellant had not even needed to apply for settled status as he had acquired a right of residence through his father.
7. In its recent judgment of Secretary of State for the Home Department v William George [2024] EWCA Civ 1192 the Court of Appeal has restated the nature of the ‘imperative’ test in EU deportations. At [89], Underhill LJ stated:
The distinction between the two levels of protection is fundamental to the issue in this appeal. Two key points emerge from para. 32 of the judgment of Carnwath LJ in LG (Italy), which was concerned with the provisions in regulation 21 of the 2006 Regulations (which are, save in one respect noted at the end of para. 91 below, substantially identical to the provisions of the 2016 Regulations with which we are concerned):
(1) The words “imperative grounds of public security” impose a criterion which is “both more stringent and narrower in scope than the criterion of “serious grounds of public policy and public security” (see para. 32 (1)). To spell it out, the criterion is more stringent because the grounds must be “imperative”, which “connotes a very high threshold” (see para. 32 (3)); and it is narrower because the grounds must relate only to “public security”, whereas under regulation 27(3) they may relate also to “public policy”.
(2) The difference between the two levels of protection is not merely one of degree but qualitative: “in other words, [regulation 27 (4)] requires, not simply a Judgment Approved by the court for handing down. SSHD v George serious matter of public policy, but an actual risk to public security [my italics], so compelling that it justifies the exceptional course of removing someone who ... has become integrated by many years residence in the host state” (para. 32 (5)).
I respectfully agree with those points, and in my view they afford a complete answer to the ground of appeal advanced by the Secretary of State. In the present case she was obliged to show that Mr George’s continuing presence in the UK posed, in Carnwath LJ’s words, an “actual risk to public security” – and, what is more, a risk so compelling as to justify the exceptional course of deporting him from a country into which he was now integrated by so many years’ residence. The Judge’s unchallenged findings establish that he posed no such risk.
8. Whilst I note the serious nature of the appellant’s offending, I note also that he has left prison and has not been convicted of further offences. The OASyS report assesses the appellant at being of a low risk of reoffending. It cannot, in my opinion, be said on the facts that the appellant currently poses an ‘actual risk to public security’. In the circumstances, I allow his appeal against the Secretary of State decision dated 27 April 2022.
Notice of Decision
I have remade the decision. The appellant’s appeal against the Secretary of State decision dated 27 April 2022 is allowed.

C. N. Lane

Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated: 27 February 2025