UI-2024-001182 & UI-2024-001183

• Status of case: Unreported
• Hearing date: 14 Mar 2025
• Promulgation date: 30 Apr 2025
• Publication date: 15 May 2025
• Last updated on: 15 May 2025

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001182
First-tier Tribunal No: EA/15741/2021
Case No: UI-2024-001183

First-tier Tribunal No: HU/01703/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 30th of April 2025

Before

UPPER TRIBUNAL JUDGE JACKSON
UPPER TRIBUNAL JUDGE BLUNDELL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

JOSE PAULO CASTRO
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Z Malik KC of Counsel, instructed by the Government Legal Department
For the Respondent: Mr R Khubber of Counsel, instructed by Turpin Miller LLP

Heard at Field House on 14 March 2025


DECISION AND REASONS
1. In a decision promulgated on 29 October 2024 the Upper Tribunal found an error of law in the decision of First-tier Tribunal Judges Loke and Rai and set aside their decision. A copy of that decision is annexed to this one. This is the remaking of the Appellant’s appeal against the Respondent’s two decisions dated 18 October 2021 (although the decisions bear different dates, these are accepted to be typographical errors), (i) the decision to make a deportation order and refuse his human rights claim, and (ii) the decision to refuse his application under the EU Settlement Scheme. For ease we continue to refer to the parties as they were before the First-tier Tribunal, with Jose Paulo Castro as the Appellant and the Secretary of State as the Respondent.
2. The Appellant’s immigration history and details of the reasons for the Respondent’s two decisions are set out in detail in paragraphs 2 to 26 of the decision attached and will not be repeated here. Those details are all directly relevant to the remaking of these appeals and have been taken into account in full in this decision.
3. At the outset of the hearing before us, the parties were agreed1 that the following issues were to be determined:
(i) Whether the Respondent’s decision to refuse the Appellant’s application for leave to remain under Appendix EU of the Immigration Rules was lawful, which requires consideration of:
(a) whether the Appellant is a “persistent offender”;
(b) whether the Appellant poses a genuine, present and sufficiently serious threat to one of the fundamental interests of society;
(c) whether there are serious grounds of public policy or public security to deport the Appellant;
(d) whether the Appellant’s deportation is proportionate under EU law and/or Article 8 of the European Convention on Human Rights.
(ii) Whether the Respondent’s decision to refuse the Appellant’s human rights claim, in the context of deportation, was in breach of Article 8 of the European Convention on Human Rights.
The appeal
Legal framework
4. The relevant legal framework for this appeal is in both Appendix EU to the Immigration Rules and the Immigration (European Economic Area) Regulations 2016, as set out below. We refer to the relevant caselaw for these provisions at the relevant points in our reasons for the decision.
5. The requirements for an application for indefinite leave to remain in the United Kingdom under the EUSS are set out in paragraph EU11 of Appendix EU to the Immigration Rules, which so far as relevant to this appeal provides:
The applicant meets the eligibility requirements for indefinite leave to enter or remain as a relevant EEA citizen or their family member (or as a person with a derivative right to reside or a person with a Zambrano right to reside) where the Secretary of State is satisfied, including (where appliable) by the required evidence of family relationship, that, at the date of application and in an application made by the required date, one of conditions 1 to 7 set out in the following table is met:
…
3. (a) The applicant:
(i) is a relevant EEA citizen; or
(ii) …
(b) The applicant has completed a continuous qualifying period of five years in any (or any combination) of those categories; and
(c) Since then no supervening event has occurred in respect of the applicant.
6. There is no dispute in the current appeal that the Appellant is a relevant EEA citizen (as defined in Annex 1 to Appendix EU) and the Respondent has not suggested that there has been any supervening event (as also defined in Annex 1). ‘Continuous qualifying period’ is defined in Annex 1, so far as relevant to this appeal, to be:
a period of residence in the UK and Islands (…)
(a) which, […] began before the specified date; and
(b) during which none of the following occurred:
[…]2
(c) which continues at the date of application, unless:
(i) the period is of at least five years’ duration; or …
7. Paragraph EU15 of Appendix EU provides that an application will be refused on suitability grounds where, in accordance with paragraph (1)(a) the applicant is subject to a deportation order or to a decision to make a deportation order.
8. Deportation order is defined, as interpreted in the error of law decision in this appeal, in the Annex which provides as follows:

deportation order
as the case may be:

(a) …; or

(b) an order made under section 5(1) of the Immigration Act 1971 by virtue of section 3(5) or section 3(6) of that Act in respect of:

(i) conduct committed after the specified date; and/or

(ii) conduct committed by the person before the specified date, where the Secretary of State has decided that the deportation order is justified on the grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations, irrespective of whether the EEA Regulations apply to the person (except that in regulation 27 for “with a right of permanent residence under regulation 15” and “has a right of permanent residence under regulation 15” read “who, but for the making of the deportation order, meets the requirements of paragraph EU11, EU11A or EU 12 of Appendix EU to the Immigration Rules”; and for “an EEA decision” read “a deportation decision”); or

(c) …

in addition, for the avoidance of doubt, (b) includes a deportation order made under the Immigration Act 1971 in accordance with section 32 of the UK Borders Act 2007;

...
9. Regulation 27 of the Immigration (European Economic Area) Regulations 2016 (the “EEA Regulations”) referred to above provides, so far as relevant:
(1) In this regulation, a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a right of permanent residence under regulation 15 except on serious grounds of public policy and public security.
(4) …
(5) The public policy and public security requirements of the United Kingdom include restricting rights otherwise conferred by these Regulations in order to protect the fundamental interests of society, and where a relevant decision is taken on grounds of public policy or public security it must also be taken in accordance with the following principles –
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person must present a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account past conduct of the person and that the threat does not need to be imminent;
(d) matters isolated from the particulars of the case or which relate to considerations of general provision do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision;
(f) …
(6) Before taking a relevant decision on the grounds of public policy and public security in relation to a person (“P”) who is resident in the United Kingdom, the decision maker must take account of considerations such as age, state of health, family and economic situation of P, P’s length of residence in the United Kingdom, P’s social and cultural integration in the United Kingdom and the extent of P’s links with P’s country of origin.
(7) …
(8) A court or tribunal considering whether the requirements of this regulation are met must (in particular) have regard to the considerations contained in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.)
10. Schedule 1 to the EEA Regulations includes provision on the application of considerations of public policy and public security in paragraphs 2 to 6, which so far as relevant, include:
3. Where an EEA national or the family member of an EEA national has received a custodial sentence, or is a persistent offender, the longer the sentence, or the more numerous the convictions, the greater the likelihood that the individual’s continued presence in the United Kingdom presents a genuine, present and sufficiently serious threat affecting the fundamental interests of society.
4. Little weight is to be attached to the integration of an EEA national or the family member of an EEA national within the United Kingdom if the alleged integrating links were formed at or around the same time as –
(a) the commission of a criminal offence;
(b) an act otherwise affecting the fundamental interests of society;
(c) the EEA national or family member of an EEA national was in custody.
5. The removal from the United Kingdom of an EEA national or the family member of an EEA national who is able to provide substantive evidence of not demonstrating a threat (for example, through demonstrating that the EEA national or the family member of an EEA national has successfully reformed or rehabilitated) is less likely to be proportionate.
6. …
11. Paragraph 7 of Schedule 1 to the EEA Regulations sets out the fundamental interests of society as follows:
For the purposes of these Regulations, the fundamental interests of society in the United Kingdom include-
(a) …
(b) maintaining public order;
(c) preventing social harm;
(d) …
(e) protecting public services;
(f) excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action;
(g) …
(h) combating the effects of persistent offending (particularly in relation to offences, which if taken in isolation, may otherwise be unlikely to meet the requirements of regulation 27);
(i) …
(j) protecting the public;
(k) …
(l) …
12. Finally in relation to the EEA Regulations, Regulation 15 provides for the right of permanent residence, including in (1) to an EEA national who has resided in accordance with these Regulations for a continuous period of five years. A person such as the Appellant who is an EEA national, would reside in accordance with these Regulations if they were, for the requisite continuous five year period, a qualified person as defined in Regulation 6 of the same, which so far as relevant provides:
“Qualified Person”
6.-(1) In these Regulations –
“jobseeker” means an EEA national who satisfies conditions A, B and, where relevant, C;
“qualified person” means a person who is an EEA national and in the United Kingdom as –
(a) a jobseeker;
(b) a worker
(c) …
…
(2) A person who is no longer working must continue to be treated as a worker provided that the person –
(a) is temporarily unable to work as the result of illness or accident;
(b) is in duly recorded involuntary employment after having been employed in the United Kingdom for at least one year, provided the person –
(i) is in duly recorded involuntary employment with the relevant employment office; and
(ii) satisfies conditions A and B;
(c) Is in duly recorded involuntary unemployment after having been employed in the United Kingdom for less than one year, provided the person –
(i) has registered as a jobseeker with the relevant employment office; and
(ii) satisfies conditions A and B;
…
(3) A person to whom paragraph 2(c) applies may only retain worker status for a maximum of six months.
(4) …
(5) Condition A is that the person –
(a) entered the United Kingdom in order to seek employment; or
(b) is present in the United Kingdom seeking employment, immediately after enjoying a right to reside under subparagraphs (b), (d) or (e) of the definition of qualified person in paragraph (1) (disregarding any period during which worker status was retained pursuant to paragraph (2)(b) or (c).
(6) Condition B is that the person provides evidence of seeking employment and having a genuine chance of being engaged.
(7) A person may not retain the status of –
(a) a worker under paragraph 2(b);
(b) a jobseeker, …
for longer than the relevant period without providing compelling evidence of continuing to seek employment and having a genuine chance of being engaged.
The written witness evidence
13. In his written statement dated 12 April 2023, the Appellant refers to his family history and his diagnosis of paranoid schizophrenia. He arrived in the United Kingdom with his dad in December 2013, the year after his mum. The Appellant initially lived with his parents and he had siblings that lived separately with their own families. The Appellant worked through agencies and in factories, but things went wrong in around 2015 and 2016 when he started taking drugs and then suffered from depression following the breakdown of a relationship. He started feeling paranoid and was convicted of criminal damage. He states that he went to hospital a few times but can not recall the details of problems with his mental health, although it was worse when he smoked cannabis which also made him not want to take his medication. The Appellant kept off cannabis whilst in prison and continued to be in contact with his family who have always supported him.
14. The Appellant stated that he lived with his cousin after he was deported to Portugal in October 2022, but felt depressed, started to smoke again and began to feel paranoid, he attended hospital but did not wait to be seen. The Appellant’s father visited him and also his half-sister. The Appellant was taken to hospital in December 2022 and has since made good progress, with monthly injections for his mental health and a part-time job. The Appellant felt cut off from his family and wished to return to England where his parents and siblings are and where he feels he could live calmly without causing any problems. These same details were repeated in a further statement dated 31 August 2023.
15. In that second statement, the Appellant stated that did not want to return to the United Kingdom to give evidence before the First-tier Tribunal because to do so he would be held in a detention centre in the United Kingdom and was worried about that and the impact on his mental health as it was very similar to being in prison which was previously difficult. The Appellant had not received permission from the Portuguese authorities to give evidence by video from there.
16. In his written statement signed and dated 19 December 2023, the Appellant states that he is not able to afford to return to the United Kingdom for his First-tier Tribunal hearing on 10 January 2024. He states he is living in a house in Portugal which belongs to his father and working part-time at a pizza shop whilst looking for full-time work. The Appellant has been having regular monthly injections for his mental health which he states is working well and he now understands that smoking cannabis had a big effect on his mental health. The Appellant finds it hard to recall details of his offences and had found it hard to take his medication, then in tablet form. The Appellant has not been in trouble in Portugal since he arrived and has no more interest in smoking cannabis. As to family, the Appellant wishes to live in the United Kingdom to be near his brothers and parents and is currently only able to speak to them on the phone.
17. In his final written statement signed and dated 10 March 2025, the Appellant states that he is continuing to live in his father’s house in Lisbon, with his father who is in Portugal for medical tests. He continues to have anti-psychotic medication by injection every three months and keeps a regular routine. The Appellant no longer has psychotic episodes that led him into trouble and criminality before. He is currently looking for work, but had previously been employed in an online food business and at a supermarket.
18. The Appellant wishes to return to live in the United Kingdom because all of his close family are here, his mother, brother and two sisters. He states he is closest to his mother. He can see family if they visit Portugal, but says this is not the same and he has only seen his mother twice in the last year during a visit. The Appellant states that his mental health is now stable and he has not been in any trouble; he has not smoked cannabis in over two years and does not intend to ever do so again.
19. In a written statement signed and dated 14 December 2022, Anastacia Castro, the Appellant’s mother, set out their family history in Portugal and then in the United Kingdom from 2012 and 2013. Ms Castro refers to not initially noticing or knowing that things were going wrong for the Appellant or that he was taking drugs, but in 2016 noticed that his behaviour was different, aggressive, unpredictable and he was breaking things. The Appellant’s mental health was very bad before he went to prison in November 2020 and had a number of inpatient admissions in hospital for this, when he would initially get better and then get worse again in an ongoing cycle.
20. The police explained the Appellant’s condition to Ms Castro in March 2021 after he was arrested and she later found out he had been sentenced to six months. Ms Castro was allowed to visit the Appellant in prison in March 2022, with her daughter, who also sent him letters and spoke to the Appellant in prison. After his release in April 2022, Ms Castro spoke to him on the phone and he seemed more settled, but she was worried he wasn’t getting the medical and psychiatric support he needed. She later found out he had been arrested and sentenced to more time in prison, not being sure what then happened but was told that the Appellant was going to be removed to Portugal in October 2022.
21. Ms Castro describes family support in Portugal for the Appellant from his half-sister for a brief period and from his cousin who he lived with. He did not have any medication, had trouble being seen by a doctor and ultimately he was then admitted to a psychiatric ward in Lisbon. The Appellant’s father visited him for a week in November 2022 but it was hard to travel as he was at this time undergoing treatment for cancer. It is expensive for Ms Castro to visit Portugal and as she gets older, travelling is hard. She also needs to be in the United Kingdom to support herself and her husband financially.
22. In an unsigned and undated statement, Neide Castro Andins, the Appellant’s sister, sets out her family history from Angola, to Portugal, to the United Kingdom where she arrived in 2006, with other family members joining between 2010 and 2014. Ms Andins states that she was worried about who the Appellant was hanging out with and his involvement with drugs, starting to worry about him from 2016 when he became paranoid and his personality started to change. The Appellant was living with his parents at this time, but Ms Andins helped to take him to appointments as his parents didn’t know what to do about his behaviour. She refers to him being in a mental health hospital in 2017 and being involved in criminality and drugs; with further periods of imprisonment in 2020 and 2021 with the family not understanding what was happening. Ms Andins was concerned the Appellant was not receiving mental health support in prison, having phone contact with him during and sometimes after release.
23. After the Appellant was removed to Portugal, Ms Andins and another sister spoke to him and their dad went to visit to help him settle and get his medication. The Appellant was very distressed and his behaviour worsened such that he could not continue living with his cousin. On a visit from the Appellant’s half-sister, she found the door to the property open and everything was broken, following which the Appellant was taken to hospital. The family find it hard to support the Appellant’s recovery while he is in Portugal, and his father has returned to Portugal to support him.
24. In his written statement signed and dated 14 December 2022, Horatio de Figueredo, the Appellant’s cousin, stated that the Appellant lived with him for a while when he was removed to Portugal in October 2022. During this time he tried to help him see a doctor and get his medication, but there were difficulties. The Appellant’s behaviour worsened and his cousin was unable to let him live with him in the long-term as he has his own health and financial issues and knows nothing about mental health.
25. There were no witnesses in attendance at the oral hearing to give evidence on the Appellant’s behalf. In relation to the Appellant himself, we were told that he had not sought permission from the Respondent to return to the United Kingdom to give evidence in support of his appeal, nor had he sought permission from the authorities in Portugal to give evidence remotely from there.
Other documentary evidence
26. The Appellant’s OASys Assessment was completed on 5 May 2022. Overall, the risk of the Appellant reoffending was found to be medium, with a 30% risk in year 1 and a 45% risk in year 2. The report refers to an emerging pattern of inappropriate sexualised behaviour, even though there was only one conviction, there were also reports of him exposing himself to staff at a hostel and trying to strangle a female resident, with a pattern of female victims. The risk of serious offending of a sexual nature within two years was assessed as medium. The report considers a wide range of risks to potential victims, including family, members of the public, children and staff which were all assessed to be high in the community.
27. The Appellant’s OASys report also refers to a Protect from Harassment Order to safeguard his mother (Anastacia Cunha Castro) in force to September 2021, which prevented the Appellant from attending her home address and from harassing or pestering her and that he must not instruct, encourage or in any way suggest any other person do so. The offence on 6 March 2021 was for a breach of that order, although his mother did let him in to her property for a shower and at the time he also asked her for money. The report refers to the Appellant’s mother being torn between wanting to help her son and being the victim of his abusive behaviours; and also refers to pattern of violent and aggressive behaviour towards his mother, particularly when under the influence of drugs or during a mental health crisis. One of the Appellant’s recommended licence conditions was for no contact with his mother and a local exclusion zone, as well as no unsupervised contact with children and drug testing (although these do not appear in the Licence and Notice of Supervision issued later). There is also reference to mental health difficulties and times when the Appellant has not been compliant with his medication and drug use (including cannabis, alcohol and crack cocaine) but a difficulty in assessing the relative impact of these issues on offending behaviour and future risk.
28. In a letter dated 22 February 2023, Mr Abrantes of Santa Maria Hospital in Lisbon states that he has been treating the Appellant since December 2022 for his paranoid schizophrenia for which he is currently medicated with a monthly injection of paliperidone. The Appellant has complied with the treatment plan, is currently clinically stable with no active psychotic symptoms, has not consumed toxic substances since December 2022 and is in employment.
29. A medical report dated 18 August 2023, from Mr Abrantes of Santa Maria Hospital in Lisbon refers to the Appellant being hospitalised for 15 days in December 2022 for behavioural disorganisation in the context of drug use. His diagnosis of paranoid schizophrenia is medicated with an injection of paliperidone every three months, which has been complied with and he has no psychotic symptoms.
30. A psychiatric report from Dr N Galappathie, clinical forensic psychiatrist dated 20 September 2023 sets out his assessment of the Appellant and his history, including by reference to medical and criminal records. Dr Galappathie refers to the Appellant’s current circumstances in Portugal, including that he is living in a family property in which he manages daily tasks for himself, but needs help with paperwork. He has uncles and nephews in Portugal and is in employment. He is currently taking prescribed medication for his mental health and would like further psychological therapy to recover. The Appellant stated to Dr Galappathie that he does not want to drink alcohol or use drugs and that he would avoid further offending by avoiding the wrong type of people.
31. At the time of assessment, Dr Galappathie assessed the Appellant as suffering from low mood, presenting as depressed but without any thoughts of self-harm or suicide and not currently having auditory hallucinations. At the time of the report, the antipsychotic medication given to the Appellant was considered to be effective in controlling symptoms and he would likely need this on a long-term basis to continue to do so and prevent any psychotic relapses.
32. Dr Galappathie was asked to assess the Appellant’s risk of reoffending, on which he states:
“76. In my opinion, his past offences are likely due to be at least partially related to his mental illness and the symptoms associated with paranoid schizophrenia, such as his auditory hallucinations. It is notable an inpatient discharge summary, dated 13 July 2022, outlines that his risk of harm to others is high, Mr Castro denies any intent to harm others, agrees with his reasons for arrest on the day, expresses regret for his actions, and has since been receiving further treatment, as outlined by Jose Sobral Abrantes, from the mental health psychiatric department, in Hospital Santa de Maria Lison, on 22 February 2023, by way of 100mg of Haloperidol injected on a monthly basis which may have now been changed to Paliperidone. He has complied with the treatment plan, is clinically stable, with no active psychotic symptoms since monitoring began. In my opinion, whilst his mental state is more stable with deport antipsychotic medication, he has not been able to demonstrate an understanding of his past offending or complete risk reduction work through psychological therapy, however it is not clear from the papers that he was actually offered any therapy. His periods of custody, namely 4 months and 3 months were followed by longer periods of detention in the immigration estate without any active probation supervision such that on release there was very little input from services. He was able to inform me during my assessment of him that he was paranoid during his past offending. Whilst he is not at imminent risk of offending given his current level of stability, this indicates that his risk of offending provided that he is properly medicated and stable in mental state is low. In my opinion, his medium and long-term risk of re-offending remains high given that there have been numerous psychotic relapses with a recurrence of offending and this makes it likely that psychotic relapses may reoccur in the future leading to further offences, however it should be noted that if he remains on depot antipsychotic medication and avoids illicit drugs this will help to mitigate the risk of offending. I would also highlight that if he was non-compliant with antipsychotic mediation his risk would rapidly increase, as he would become chaotic paranoid and at high risk of returning to a rapid pattern of offending behaviour in the pattern that has previously occurred.”
33. When asked to assess the Appellant’s risk of harm, Dr Galappathie considered that the Appellant presents with a high risk of harm to others in the medium term, albeit the risk may be reduced if his current stable medication and compliance is maintained. He refers to the high number of previous offences for a range of aggressive, violent and sexually disinhibited behaviours and considered it to be “notable that he has had sporadic periods of offending behaviour which are likely to have occurred at times when he was been mentally unwell due to relapses of his schizophrenia or due to use of illicit drugs.”. There is further reference to risk to others due to the Appellant’s presentation becoming hostile and aggressive as well as absconding from a mental health facility. He continues to conclude as follows:
“79. … In my opinion, the risk of harm to others remains high and includes the potential for property damage, spitting, physical assaults, weapon carrying and sexual offending by way of exposure including indiscriminately when children may be present. In my opinion, despite the reported recent stability, and treatment with depot medication he presents with a high risk of recurrence of aggression, violence and sexually disinhibited behaviour in the medium to long term, especially if he has a psychotic relapse which in my opinion, given his past history is of psychotic relapses is also high.”
34. Finally, Dr Galappathie considered the potential factors to increase or decrease this risk, similar to those referred to in relation to risk of reoffending, but also included as relevant to increased risk confrontation with other people or disagreements with family.
35. The Appellant’s bundle also includes a variety of other documents, including a not insignificant number of health records. We have taken all of these into account, but it is not necessary for the purposes of this appeal to refer to any of these additional documents individually or in any detail.
Closing submissions on behalf of the Respondent
36. At the outset of his submissions, Mr Malik KC confirmed that the Respondent continued to rely on all of the Appellant’s criminal offending, both before and after 31 December 2020 (the specified date) but in light of the error of law decision in this appeal, submitted that the primary issue was as to satisfaction of Regulation 27 of the EEA Regulations, that containing the higher burden to be met. The Respondent did however reserve her position as to the correctness of the error of law decision (which she can not appeal against pending the resolution of this appeal through this second final decision).
37. Mr Malik KC accepted that in this case the threshold was that of serious grounds of public policy and policy security and that when considering the personal conduct of the Appellant, it would need to be shown that he was a genuine, present and sufficiently serious threat to one of the fundamental interests of society. However, that threat need not be imminent, but must be specific to this Appellant and not be based solely on his past conduct and convictions. The decision must be proportionate.
38. Specific reliance was placed by Mr Malik KC on paragraphs 3 and 7 to Schedule 1 of the EEA Regulations, in particular that where a person is a persistent offender and the more numerous the convictions, the more likely it is that that person presents a genuine, present and sufficiently serious threat to one of the fundamental interests of society and highlighted the relevant fundamental interests to this Appellant. Overall, it was submitted that the Appellant’s deportation was justified on serious grounds for the following reasons.
39. First, the Appellant is a persistent offender. He has a number of convictions as set out in the Respondent’s decision letters and continued offending up to the point of his deportation to Portugal on 20 October 2022, with his last conviction on 23 September 2022. In Chege (“is a persistent offender”) [2016] UKUT 00187 (IAC) the Upper Tribunal defined a persistent offender as follows:
“53. Put simply, a “persistent offender” is someone who keeps on breaking the law. That does not mean, however, that he has to keep on offending until the date of the relevant decision or up to a certain time before it, or that the continuity of the offending cannot be broken. Whilst we do not accept Mr Malik’s primary submission that a “persistent offender” is a permanent status that can never be lost once it is acquired, we do accept his submission that an individual can be regarded as a “persistent offender” for the purposes of the Rules and the 2002 Act even though he may not have offended for some time. Someone can be fairly described as a person who keeps breaking the law even if he is not currently offending. The question whether he fits that description will depend on the overall picture and pattern of his offending over his entire offending history up to that date. Each case will turn on its own facts.”
40. Further reliance was placed on the example in paragraph 52 of Chege of a person who had committed a series of offences between the ages of 14 and 17 but who had then led a blameless existence for 20 years, who would not after that period be considered to be a persistent offender. However, Mr Malik KC submitted that the facts of the present appeal are very different to this example, the Appellant was undoubtedly a persistent offender at the date of his last offence in September 2022 and has not yet ceased to be one as at the date of this hearing.
41. A finding that the Appellant is a persistent offender is relevant to the application of paragraph 3 of Schedule 1 to the EEA Regulations, making it more likely that he presents a genuine, present and sufficiently serious threat to one of the fundamental interests of society.
42. Secondly, the Appellant has numerous convictions, including a number after he had been warned by the Respondent on 26 November 2020 that deportation action was being considered against him. Even if he is no longer considered to be a persistent offender, the numerous convictions, including those after a warning had been given by the Respondent can not be disregarded. Again, paragraph 3 of Schedule 1 to the EEA Regulations applies to a person with numerous convictions. It was submitted that the frequency of the Appellant’s offending undermines public policy and public security; which is relevant to the fundamental interests of maintaining public order and preventing harm. If a person with numerous convictions can not be excluded from the United Kingdom, this undermines confidence in public policy.
43. Thirdly, the Appellant poses a genuine and high risk of both offending and harm to the public. Mr Malik KC relied upon the finding to this effect in paragraph 37 of the First-tier Tribunal’s decision which remains entirely consistent with the evidence in the Appellant’s OASys report and the Appellant’s own expert evidence from Dr Galappathie who categorically considered that there was a high risk of reoffending. As at the date of hearing, there is no reliable evidence to depart from the earlier evidence and conclusions, in particular there is no further expert report or assessment. These are matters which engage the need to maintain public order and prevent societal harm. Again, Mr Malik KC also relied upon the effect of undermining public confidence if a person who posed a high risk of reoffending and a high risk of harm could not be excluded from the United Kingdom.
44. Fourthly, one of the Appellant’s convictions was for a sexual offence and he currently remains on the Sex Offenders register. The nature of this particular offence is also relevant to the same public confidence points already relied upon.
45. Fifthly, Mr Malik KC submitted that little weight should be given to the Appellant’s written statements given that he has chosen not to seek to attend his appeal hearing (either in person or remotely) to give oral evidence. The Appellant has had six months since the error of law hearing in which time he could have made the relevant requests either to the Respondent and/or to the Portuguese authorities and in the absence of doing so, it should be inferred that he had made a deliberate choice to avoid cross-examination. The Appellant can not be considered to be a man of good character and overall, his written evidence, which contains bare assertions that he no longer has psychotic episodes and is no longer offending, should therefore be treated with caution. It was also noted that the Appellant’s written evidence is not supported by any other evidence at all, no further expert reports and no further evidence even from family members (particularly those in the United Kingdom who could also have attended the hearing before the Upper Tribunal) and no explanation has been given for this lack of supporting evidence.
46. In relation to family members, the Appellant claims to have a particularly close relationship with his mother who has visited him twice in 2024 and also with siblings in the United Kingdom. However, no family member has submitted an updated written statement nor attended the hearing to give oral evidence. It would have been reasonable to expect them to do so to support the Appellant’s account. Their failure to do so reduces further the weight to be attached to the Appellant’s written evidence.
47. Sixthly, in relation to the Appellant’s domestic circumstances, he is now 32 years old. He lived the first 22 years of his life in Portugal, spent seven years in the United Kingdom (but without any evidence of social or cultural integration here) and was returned to Portugal in 2022 where he has lived for three years now. In Portugal, the Appellant receives adequate healthcare; has family support; has been in employment; is familiar with the language; has visits from family from the United Kingdom and generally describes himself as stable. It was submitted that there was nothing in the Appellant’s circumstances which would make his deportation disproportionate.
48. Overall, Mr Malik KC submitted that the Appellant’s deportation was justified on serious grounds in accordance with Regulation 27 of the EEA Regulations and is proportionate. On that basis, the Appellant cannot meet the requirements of the Immigration Rules for a grant of leave to remain and his appeal against that refusal must fail. If we were not with the Respondent on those findings, it was accepted that the appeal should be allowed on that alternative basis.
49. In relation to Article 8 of the European Convention on Human Rights, Mr Malik KC relied upon his earlier submissions that the Appellant was a persistent offender which would apply equally to section 117D of the Nationality, Immigration and Asylum Act 2002 (the “2002 Act”) and in any event, would be relevant to the usual assessment required for a conducive deportation.
50. There is no evidence of any established private or family life in the United Kingdom and the Appellant cannot meet either of the exceptions to deportation in section 117C(4) or (5) of the 2002 Act. Undertaking a conventional proportionality assessment for the purposes of Article 8 of the European Convention on Human Rights, it was submitted that the Appellant’s deportation was clearly proportionate, that there was nothing in the Appellant’s private or family life which could outweigh the significant public interest in his deportation.
Closing submissions on behalf of the Appellant
51. On behalf of the Appellant, Mr Khubber relied on his skeleton argument, amplifying matters contained therein in oral submissions and responding to the Respondent’s submissions.
52. The first issue to be addressed was whether the Appellant is a persistent offender and if not accepted, that is relevant to whether the serious grounds threshold is met; however, even if he is found to be a persistent offender, that is not determinative of the same issue. If the Upper Tribunal find both that the Appellant is a persistent offender, and/or there are serious grounds of public policy for deportation, then the final issue to be determine is whether deportation is proportionate.
53. In relation to the 2002 Act, Mr Khubber submitted that if the Appellant was not a persistent offender, then the definition in section 117D is not met and the provisions in section 117C are simply not relevant to the present appeal as the Appellant has not otherwise received a custodial sentence of more than 12 months. In these circumstances, Mr Khubber submitted that a more open textured assessment would be required.
54. As to whether the Appellant is a persistent offender, it was submitted that as at the date of hearing, he was not. Mr Khubber submitted that a dynamic evaluation was required, in particular taking in to account the passage of time since the last offence, which the Respondent has not properly considered in her assessment. There was no dispute as to the Appellant’s convictions, but there was as to the current threat he posed now. Mr Khubber submitted that although the evidence of the position at the date of hearing was limited, there was sufficient evidence to show that the Appellant is currently mentally stable and compliant with medication, with no further offending. He further submitted that in circumstances where the Respondent had previously indicated she did not intend to cross-examine the Appellant, it should not be inferred that he was choosing to avoid cross-examination. On this point he relied upon a letter from the Respondent to the First-tier Tribunal dated 6 September 2023 that in response to directions, stated:
“It should, however, be noted that the Secretary of State makes no concessions as to the matters set out in the Appellant’s witness statement and accompanying documents. The Secretary of State’s position as to the facts remains as set out in her decisions. In addition, the Secretary of State does not propose to put any questions in writing for the Appellant to answer.”
55. The directions that this was in response to were not available at the hearing, but provided afterwards by Mr Khubber. For convenience and context we refer to that document here. The directions were issued by the First-tier Tribunal on 25 August 2023 following the refusal of an application for a stay and/or adjournment of the forthcoming hearing sought by the Respondent and made reference to the assumption that the Appellant would not be retuned to the United Kingdom by the Respondent for the hearing. The directions that followed these circumstances were for the Respondent to file her skeleton argument; to file and serve any written questions in cross-examination and for any further evidence from the Appellant to be filed and served.
56. As to the meaning of “persistent offender”, Mr Khubber noted that there was no EU law definition of this, nor any case law on its meaning in the context of the serious grounds threshold. He further noted the similarity in definitions contained in paragraph 3 of Schedule 1 to the EEA Regulations and section 117D of the 2002 Act, which had its origins in the Immigration Rules. In this respect, the decision in Chege was noted to look only to domestic case law in the Article 8 context for its interpretation of the term.
57. Undertaking a dynamic assessment of the current circumstances, it was submitted that as the First-tier Tribunal found, albeit with a computation of time error since the last offending, the Appellant was no longer a persistent offender given the time since the last offence, which is now more than two years (the period wrongly considered at that time by the First-tier Tribunal). Mr Khubber submitted that in accordance with paragraph 53 of Chege, whether a person was a “persistent offender” was a mixed question of fact and law, for which consideration needed to be given to the whole pattern of offending of a person’s entire history. Whilst it was accepted that at the time of deportation in October 2022 the Appellant may have been a persistent offender, he was not now given his conduct over the passage of time since then without any further offending and in circumstances where he has addressed the cause of offending by compliance with medication and now has a stable living environment, including employment. The Respondent has not identified any further offending in over two years and therefore the Appellant is no longer someone who keeps breaking the law. Mr Khubber submitted that there had now been a clear break between the Appellant’s past offending and a significant and sustained period of time since his last offence.
58. Mr Khubber relied on a further distinction between this Appellant’s history and some of the other case law referred to, first in that the Appellant’s offending was at a much lower level and for a shorter period and secondly, that the Appellant’s offending was all linked to poor mental health, for which he has been receiving treatment. The latter is relevant to the level of risk posed now and to put past offending in to context, all of which occurred during relapses in the Appellant’s mental state. No such relevant causation was identified in other case law, with no authority considering a causative link between offending and mental health in an expulsion context. The Appellant’s state of mind at the time of offending is also relevant to whether he had a ‘wilful or reckless disregard’ to the law, as referred to in paragraph 27 of Chege.
59. Mr Khubber further highlighted the Appellant’s entitlement to the higher level of serious grounds protection which elevates the need for a higher risk of reoffending and risk of harm for it to be met. He submitted that through this prism, a significant gap in a period of offending could never meet the serious grounds threshold, even if it would meet a conventional Article 8 assessment threshold. In essence, different tests are to be applied.
60. Whether or not the Appellant is a persistent offender, the next issue is whether the serious grounds threshold is met, which requires an assessment of the threat posed by the Appellant. Mr Khubber relied on the First-tier Tribunal’s overall evaluation, the Appellant’s offending behaviour, his conduct and future risk and properly concluded that the serious grounds threshold had not been met. Although past offending is not in any event determinative, it was submitted that the Appellant’s convictions were not serious enough to meet the serious grounds threshold. It was accepted that the convictions included assault and a sexual offence, including a requirement for inclusion in the Sex Offenders register, but that the latter had not opened to the door for any escalation of more serious sexual offences. The Appellant had also not offended since June 2022, had been in receipt of medical treatment since his removal to Portugal and had employment there with no adverse conduct. The present appeal is not a case with comparable facts to those in Straszewski v Secretary of State for the Home Department [2015] EWCA Civ 1245.
61. Mr Khubber made a number of submissions in essence querying the extent to which the factors in Schedule 1 to the EEA Regulations were consistent with EU law and suggested that they included domestic law concepts such as deterrence rather than focusing on the dynamic assessment required. Mr Khubber submitted that these factors should be approached with caution given there was a blurring of domestic law and EU law concepts, with a domestic gloss on aspects such as deterrence.
62. The issue of public deterrence was not specifically relied upon by the Respondent in her oral submissions and Mr Khubber submitted that this was not an extreme case in which this issue would really arise and is simply not relevant on the facts. Further, it was submitted that there has been no identifiable escalation of seriousness of offending by the Appellant.
63. Overall, it was submitted that the serious grounds threshold was not met on the facts of this appeal and therefore the appeal should be allowed as the requirements of the Immigration Rules were met.
64. If not with the Appellant on these points, in relation to proportionality, Mr Khubber highlighted in his skeleton argument the following factors. First, that the Appellant’s age (32 years old) and length of residence in the United Kingdom and Portugal (up to age 22 and since October 2022) were neutral factors. Secondly, that his mental health, including its current stabilisation were important. Thirdly, that the Appellant had family in Portugal but his main family were in the United Kingdom. Fourthly, that the Appellant is currently unemployed but willing and able to work, given he has a past employment history including in the United Kingdom. Fifthly, the Appellant had been resident in the United Kingdom for a period of eight years, during which he had been socially and culturally integrated though residence and employment, without his criminality being seriousness enough to break the integration established. Finally, the Appellant has links to Portugal in relation to culture, language and employment as well as current residence there, but has greater links to the United Kingdom because of family and support structures established here.
65. Mr Khubber further maintained the Appellant’s reliance on having acquired a right of permanent residence in the United Kingdom between 2014 and 2019 based on his lengthy period of residence, including sufficient periods of work and as a jobseeker for the requisite five-year period. Any periods whilst the Appellant was detained or an in-patient for mental health reasons would not detract from the qualifying residence periods. No finding was made on this point by the First-tier Tribunal given that in any event, Appendix EU to the Immigration Rules gave the Appellant the added serious grounds protection due to his length of residence alone. Even if not accepted to have permanent residence, the Appellant still had a lengthy period of residence and integration in the United Kingdom.
66. Finally, in relation to Article 8 of the European Convention on Human Rights, Mr Khubber reiterated for the same reasons as already given that the Appellant is not a persistent offender as he does not meet the definition in section 117C(d)(c) of the 2002 Act and as such, Part 5A of the same has no direct application to this Appellant. If it did apply, it was not suggested that the Appellant could meet either of the exceptions in section 117C based on private or family life and arguably section 117C(6) may be relevant, but on balance Mr Khubber submitted that that was more nuanced because the Appellant, even if a persistent offender and therefore a foreign criminal, he was not a medium or serious level offender and an adjustment would be needed to the assessment for that reason.
67. In these circumstances, he submitted that a more open textured assessment of Article 8 under the relevant jurisprudence was required. This should include consideration of the mental health context and causative link to the Appellant’s criminal offending and his current stability. Overall, Mr Khubber submitted that if the Appellant succeeded in his EUSS appeal, that would also mean he would succeed on Article 8 grounds, but in any event, there was sufficient evidence from the Appellant on Article 8 grounds to establish that his deportation would be a disproportionate interference with his right to respect for private and family life.
68. In reply, Mr Malik KC relied upon the Court of Appeal’s decision in NE-A(Nigeria) v Secretary of State for the Home Department [2017] EWCA Civ 239 that Part 5A of the 2002 Act was a complete code for and provided a structured assessment of Article 8 of the European Convention on Human Rights in all cases, including those of persistent offenders. As such, section 117C(6) of the 2002 Act is applicable to the Appellant as a persistent offender. In response, Mr Khubber suggested that this case should be approached with caution given it was decided in 2017 and did not concern either a persistent offender or an EEA national.
Findings and reasons
Requirements of Appendix EU to the Immigration Rules and level of protection
69. Before turning to the agreed issues set out at the outset of this decision, we deal as a preliminary matter with issues relating to length and nature of residence in the United Kingdom, relevant for the requirements of Appendix EU and the corresponding the standard of protection applicable to the Appellant’s deportation under the EEA Regulations and Appendix EU to the Immigration Rules.
70. As to the requirements of Appendix EU to the Immigration Rules, there is no longer a dispute between the parties that as found by the First-tier Tribunal, the Appellant had completed the requisite five-year period of continuous qualifying residence. We adopt the findings of the First-tier Tribunal in paragraph 31 (which followed a more detailed consideration of the evidence in the preceding paragraphs) as follows:
31. Looking at the evidence in its entirety, we find it likely that the Appellant was continuously resident in the United Kingdom between 2014-2019. There is evidence of the Appellant engaging in some work in most of those years except 2017-2018. From 2016 the Appellant had a number of hospital admissions and suffered significant mental health issues. The evidence indicates that particularly over 2017 the Appellant was under some form of mental health care. The Appellant’s immediate family are in the United Kingdom and provided him with support when he was not in hospital. We find it unlikely that he would have left the United Kingdom for any period under these circumstances. That being the only issue raised with respect of whether the Appellant completed a ‘continuous qualifying period’, we find that the Appellant did so between 2014 to 2019.
71. In these circumstances, the Applicant meets the requirements set out in condition 3 of paragraph EU11 as a relevant EEA citizen who has the continuous qualifying period (as defined in Annex 1 of Appendix EU) of five years without any supervening event.
72. In relation to deportation, the requisite threshold is set out in two different places. Firstly, pursuant to the definition of ‘deportation order’ in the Annex to Appendix EU to the Immigration Rules, there is no dispute between the parties that the Appellant is, following paragraph (b)(ii) of the definition, entitled to the serious grounds level of protection. This is applicable based on the Appellant meeting the requirements of paragraph EU11 (including as to completing a continuous qualifying period), irrespective of whether the Appellant had acquired a right of permanent residence under the EEA Regulations. This is determinative for the purposes of this appeal.
73. However, for completeness, we also deal with the Appellant’s continued reliance on having acquired permanent residence in the United Kingdom and therefore also entitled to the enhanced serious grounds protection directly under the EEA Regulations. Given this point is somewhat academic, we only do so in outline terms without full reference to all of the relevant jurisprudence on the relevant definitions in the EEA Regulations.
74. On the Appellant’s own chronology, supported by information from HMRC available in the bundle, he had the following work/job-seeking history, and periods of in-patient mental health care from 2014:
Tax year 2013-2014: Earnings of £327.12
Tax year 2014-2015: Earnings of £2,868.47 and 27 Class 1 JSA credits
Tax year 2015-2016: Earnings of £8612.42, included mental health admission to hospital
Tax year 2016-2017: £782.18 and credits through JSA (3) and ESA (13), included mental health admission to hospital
Tax year 2017-2018: No earnings, in receipt of ESA with 42 credits
Tax year 2018-2019: Earnings of £1,151.21 and in receipt of ESA with 52 credits
Tax year 2019-2020: Earnings of £825.05 and 53 credits for ESA, including periods of mental health admission to hospital
Tax year 2020-2021: Earnings of £1359.76 and 21 credits for ESA, included mental health admission to hospital on two occasions.
75. There is no further evidence from the Appellant as to whether he was seeking work during the periods in which he was unemployed (and not in hospital) and no copies of any letters from the Department for Work and Pensions as to his benefit entitlements or on what basis he was entitled to Jobseekers Allowance or Employment Support Allowance. We are aware that there are different routes to entitlement through job-seeking and through incapacity to work, such that it is not clear on which basis the Appellant was in receipt of actual benefits, or credits at any particular time.
76. Overall, at its highest, it is probable that the Appellant was a worker in the tax year 2015-2016 (when he earned £8612.42), although it is entirely unknown as to what actual work or over what period those earnings figures represented and therefore whether he had worked for a sufficient period of time to continue to be treated as a worker for a period afterwards (potentially only up to a maximum of six months in accordance with regulation 6(3) of the EEA Regulations); nor whether he was subsequently not in employment because he was temporarily unable to work or because he was involuntarily unemployed. There is no evidence at all of the Appellant seeking employment or that he had any genuine chance of employment, even for the period where he was awarded credits through the benefits system.
77. In the other tax years, the Appellant either had such low earnings that we do not consider that he can establish that he was in genuine and effective employment during that period; or had no earnings at all, at one point for an entire year and possibly longer as there is no sufficiently detailed chronology to identify periods of actual work, job-seeking or inability to work for mental health reasons. The Appellant has not established for what period(s) he was job-seeking, if at all, such that he can not show he met the definition of the same for this in regulation 6 of the EEA Regulations or for what period.
78. Overall, we find that the Appellant has failed to establish that he was residing in the United Kingdom for a continuous period of five years in accordance with the EEA Regulations. This is a case in which the evidence is wholly inadequate to have properly claimed that permanent residence has been acquired and the Appellant has not even attempted to provide a sufficiently detailed chronology to do so, let alone submit any sufficient supporting evidence of the same. The Appellant has not established for any consecutive five-year period that he was either worker or a jobseeker, within the definitions of the same in regulation 6 of the EEA Regulations and he cannot therefore satisfy the requirements of regulation 15 of the same for permanent residence. For the reasons already given, the Appellant in any event benefits from the higher threshold of serious grounds in relation deportation pursuant to the provisions in Appendix EU, but would not have done so by sole reference to the EEA Regulations.
Is the Appellant a “persistent offender?
79. In consideration of whether the Appellant is a persistent offender, we have taken into account the guidance in Chege (as approved by the higher Courts, including the Supreme Court in SC (Zimbabwe) v Secretary of State for the Home Department [2018] EWCA Civ 929). On the facts, we have considered holistically the Appellant’s history and current circumstances as follows.
80. The Appellant’s criminal history is set out in paragraphs 3 to 18 of the error of law decision annexed and we do not repeat the full detail here. In summary, the Appellant was convicted of six offences in 2016, including criminal damage and possession of a knife in a public place. There was then a gap of around three years before his next offences in early 2020, with three convictions towards the end of that year, including for criminal damage and assault of an emergency worker; harassment (breaching a restraining order) and exposure. The following year, in April 2021, the Appellant was convicted of a further five offences, including criminal damage, assaulting an emergency worker, harassment and a public order offence. In 2022, the Appellant was convicted of a further five offences, with the last conviction in September 2022 less than a month before his deportation and the last offending date being in July 2022. These convictions included a failure to comply with the notification requirements under the Sexual Offences Act 2003, battery, assault and criminal damage.
81. Although Mr Khubber only went so far in submissions to accept that the Appellant may have been a persistent offender as at September 2022, there were no substantive submissions against such a finding at that point in time. We have no doubt that following a total of nineteen offences over a period of around six years, thirteen of which were within the last two years, and many of which were after he was warned about the possibility of deportation; the Appellant was at that time a persistent offender. In the words of Chege, he kept breaking the law. The question is whether he remained a persistent offender as at the date of hearing before us.
82. We take into account that since the Appellant’s deportation to Portugal in October 2022, there is no evidence of any further convictions; although there is reference in the papers to drug use between then and December 2022 and property damage to his cousin’s home in December 2022 (which it is suggested in the evidence before us was not pursued by the police given mental health concerns). There has therefore been a period of around two and a half years since the Appellant’s last conviction and a few months longer since the last offence.
83. The Appellant’s case is that there was a causative link between his criminality and his drug use and poor mental health (with drug use contributing to poor mental health and poor compliance with treatment for it). This is to some extent supported in the report of Dr Galappathie (albeit without any detailed analysis of particular offences and periods of poor mental health) and is referred to in the OASys report, albeit that the author was unable to draw any firm conclusions on this. We find that there is at least some evidence that criminal offending occurred during periods of mental ill-health; albeit there were also periods of poor mental health in respect of which there were no convictions (such as in 2017); but that it is difficult to make any clear connections with drug use as the evidence on this is not sufficiently detailed. In particular, the Appellant has been clear in his written evidence that he is unable to recall details of drug use, mental health or his criminal offences.
84. Further to this, the Appellant’s case is also that he has addressed the causes of his criminal offending and states that he has not taken drugs since December 2022 (and has no future intention to do so) and he now has stable mental health, complying with medication prescribed and no recent psychotic episodes. However, we approach the Appellant’s evidence on these matters with significant caution and attach very little weight to it for the following reasons.
85. First, the Appellant did not attend the hearing to give oral evidence or to be cross-examined. Although he is currently in Portugal and subject to a Deportation Order, he has had, since the error of law decision some six months ago, the opportunity to either ask the Respondent for permission to return to do so, or ask the Portuguese authorities to give permission for him to give oral evidence by video link from there. We note that provision was made for both possibilities in the directions we made after the first hearing. The Appellant did neither and has offered no explanation for the failure to do so, from which it can be inferred that he chose not to give evidence.
86. We do not accept Mr Khubber’s submission that the fact Respondent chose not to put any written cross-examination questions to the Appellant for his First-tier Tribunal hearing means that we should not have concerns or infer that the Appellant simply chose to avoid giving oral evidence on this occasion. That was in the context of different circumstances and a different point in time and it was clear that the Respondent did not accept the evidence in any event. For the purposes of the present appeal, no such suggestion was put to the Respondent to propose written questions and given the Appellant’s latest witness statement was filed only very shortly before the hearing (in breach of directions for doing so) there was very little time for the Respondent to consider the same.
87. Secondly, the Appellant’s assertions are not supported by any updated evidence at all from any of his family members as to his current circumstances. It is particularly notable that there has been no evidence at all, at any point, from the Appellant’s father whom he currently lives with in Portugal and claims to have been supported by since his arrival there in December 2022. There are other family members living in Portugal who have also failed to provide any evidence in support of the Appellant’s circumstances, nor is there any updated evidence from his mother who he claims to be particularly close to and who visited him twice in Portugal last year. There is no explanation at all for the absence of any such evidence.
88. Thirdly, the Appellant’s assertions are not supported by any up to date medical evidence. The last evidence from his treating clinician in Portugal was dated August 2023, well over eighteen months ago and there is no more recent evidence of engagement with mental healthcare, current treatment or compliance with the same; nor is there any assessment of the Appellant’s current mental health. Evidence of that nature was provided to the First-tier Tribunal and there is no explanation for the absence of updating evidence before us.
89. Further, the evidence from Dr Galappathie also dates to around the same time, from September 2023 and has not been updated at all in the eighteen months since. As it stands, his evidence is that even with effective management of symptoms and compliance with medication at that time; the Appellant still posed a medium to long-term high risk of reoffending and harm given his numerous psychotic relapses and the likelihood of such a relapse in the future. In the absence of any further report, there is no expert evidence before us of any change in that assessment, nor of the Appellant’s current circumstances.
90. Overall, we do not find the Appellant’s written evidence, particularly as to his current circumstances to be credible or to form a sufficient basis from which to depart from the other evidence before us as to his mental health, risk of psychotic relapse, or future risk.
91. Taking all of the evidence in the round, we consider that the Appellant is, as at the date of hearing, a persistent offender. In particular, we have given significant weight to the large number of previous offences, the pattern of those offences, the fact that there was a gap of some three years between the first group of offences and the second group (which continued for a longer period, even after the Appellant had been notified of the risk of deportation) and the risk of future mental health relapse as assessed by the Appellant’s own expert. We do not find these factors to be outweighed by the period of time since the last offence (which is less than the earlier period before offending resumed in 2020) or the limited weight we can attach to the Appellant’s evidence about his current circumstances.
Does the Appellant’s personal conduct represent a genuine, present and sufficiently serious risk to one of the fundamental interests of society?
92. The Respondent can only deport the Appellant on serious grounds of public policy or public security in accordance with regulation 23 and 27 of the EEA Regulations. In accordance with the provisions set out above, we consider first the personal conduct of the Appellant and whether his personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests in society. Although the Appellant’s convictions and criminal history does not itself justify a decision to deport, that is a convenient place to start.
93. The Appellant’s criminal history is set out in full in the annexed error of law decision and summarised above. We have factored in to the overall assessment both the number of offences and the nature of offences (including one of a sexual nature in the presence of a child). Whilst there is no singular particularly serious offence or one for which there was a lengthy sentence of imprisonment (the longest being 26 weeks), they are cumulatively not insignificant and include both imprisonment for breach of a Protect from Harassment Order and offences even after the Appellant was warned that he was at risk of deportation due to his offences.
94. As to the assessment of future risk, we attach significant weight to the assessment in the OASys report (albeit we accept that it is now approaching three years old) and the expert opinion of Dr Galappathie, which has not been updated. Paragraphs 26 and 27 above set out a summary of key parts of the OASys report, the risk of reoffending and risk of harm and we take into account in particular the risk of reoffending being medium (increasing in year 2 to 45%), with a medium risk of serious sexual offending within two years and an overall risk of harm to individuals in the community as high. As above, the report also referred to an emerging pattern of inappropriate sexualised behaviour (albeit he only has one sexual offences conviction) and a concern about a pattern of violent and aggressive behaviour, particularly towards his mother (in respect of whom there was a Protect from Harassment Order) and we also note the conviction for assault of an emergency worker.
95. In relation to Dr Galappathie’s report, the key parts of which are summarised in paragraphs 30 to 34 above, we attach significant weight to his conclusion of the likelihood of psychotic relapse given the Appellant’s past history of relapse; his medium to long-term assessment of a high risk of reoffending and that the risk of harm to others remains high. Although the assessment is now around 18 months old, it is the most recent professional assessment available for the Appellant. There has been no explanation as to why no updated report is available.
96. As above, we have also taken into account the factors set out by Dr Galappathie which may increase or decrease the risk posed by the Appellant. To an extent, both are related to the Appellant’s mental state and compliance with medication and future drug use; but also include wider factors which may increase risk such as confrontation with others and family difficulties. We do no repeat, but rely on the findings and reasons in paragraphs 84 to 90 above as to why we attach very little weight to the Appellant’s evidence asserting that he currently has stable mental health, is compliant with medication and does not take drugs; which is not supported by any of his family, nor his treating clinician, nor by any updated expert report.
97. The Appellant has not established before us that at present, his circumstances are such that the likely future risks in Dr Galappathie’s report (nor in the OASys assessment) have been sufficiently addressed so as to reduce the future risk he poses. We specifically take into account that the risk of reoffending need not be imminent and that a medium to long-term view was specifically considered by the professionals whose evidence is before us. Dr Galappathie’s opinion concerning the risk of the Appellant committing further offences of a sexual or violent nature are set out at paragraph 32-33 above. Those risks are sufficiently serious and sufficiently high to meet the elevated higher threshold of serious grounds. We do not accept Mr Khubber’s submission that the current gap in offending (which as above, is not as long as a previous gap before a significant number of further offences were committed) in any way detracts from the assessments before us or of itself means that the serious grounds threshold is not met.
98. We are able to reach that conclusion without reference to paragraph 3 of Schedule 1 to the EEA Regulations. When the effect of that provision is taken into account, however, the position is clearer still. We take into account our finding above that the Appellant is a persistent offender and as such, paragraph 3 of Schedule 1 to the EEA Regulations applies, that a person who is a persistent offender, or the more numerous the convictions, the greater the likelihood that the individual’s continued presence in the United Kingdom represents a genuine, present and sufficiently serious threat affecting the fundamental interest of society.
99. Finally, we have also taken into account the factors set out in the legal framework section above from paragraph 7 of Schedule 1 to the EEA Regulations; all of which we consider to be relevant to the present appeal. Although Mr Khubber questioned some aspects of paragraph 7 and in particular whether there was a blurring between what is permitted to be considered in EU law and domestic concepts of deterrence; there was no specific submission that the facts of this appeal did not engage any of the fundamental interests of society so as not to be applicable at all. In these circumstances and given that even if not all of the factors relied upon by the Respondent were applicable for the reasons submitted by Mr Khubber, we would in any event have found that there are sufficient fundamental interests of society engaged in this appeal that it would have made no difference to our overall assessment of whether the Appellant’s personal conduct represents a genuine, present and sufficiently serious threat.
100. Overall, we are satisfied that the Appellant’s personal conduct and in particular the high risk he continues to pose of reoffending and to specific groups in society, represents a genuine, present and sufficiently serious threat to more than one of the fundamental interest of society, in particular, but not limited to maintaining public order; preventing social harm; combating the effects of persistent offending and protecting the public. We find this to the elevated serious grounds threshold because of the expert evidence of a likelihood of psychotic relapse together with overall assessment in both the OASys report, which found a medium risk of reoffending and high risk to individuals and in Dr Galapatthie’s report of the Appellant’s high risk of reoffending and high risk of harm posed to others. Whilst we accept that there are factors which potentially reduce these risks, including relating to drug use and stable mental health, we are not satisfied that the Appellant has established that his current circumstances are such that the risk has as yet been reduced significantly, if at all.
Is the Appellant’s deportation proportionate in accordance with Regulation 27 of the EEA Regulations?
101. The final issue to consider under the EEA Regulations is whether the Appellant’s deportation would be proportionate bearing in mind the specific factors set out in regulation 27 of the EEA Regulations. We find that it is, having considered the following matters and for the following reasons.
102. The Appellant is currently aged 32 and has spent the majority of his life in Portugal, including the last two and half years since his deportation there in October 2022. He has significant ties to Portugal, culturally, linguistically and with family members there, including living with his father there. The Appellant completed his education in Portugal and has an employment history there (even if currently unemployed). He has family support and access to mental health care, which on his own account, has been more successful in Portugal than it was in the United Kingdom.
103. We do not accept that the Appellant has any particularly strong ties to the United Kingdom. He was resident here for a period of some seven years between the ages of 22 and 29. During that time he lived partly with his parents, partly elsewhere and partly as either an inpatient for mental health purposes or in prison serving a custodial sentence. The Appellant has a limited employment history in the United Kingdom, with only one year with any significant period of employment. The Appellant has not relied on any ongoing cultural links or friendships, had no partner and no children in the United Kingdom. To the contrary in terms of friends, reliance has specifically been placed on distancing himself with previous associates involved in drug taking and criminality.
104. In terms of the Appellant’s family, we do not find that he has a particularly close relationship with any family members who remain in the United Kingdom. Although he has asserted to the contrary and claimed a particularly close relationship with his mother, this is not borne out by the evidence before us. Again, we rely on our findings and reasons as to the little weight to be attached to the Appellant’s evidence and emphasise in particular the lack of any up to date evidence from any other family member, in the United Kingdom or in Portugal. We have also had regard to the written statements filed in 2022 from the Appellant’s mother and a sibling, in which it is apparent that there was not at that time, nor previously, a particularly close relationship either. The Appellant’s mother specifically refers to not noticing what was going on with the Appellant for some time, even when living together; not knowing what was going on with his mental health and criminal convictions and refers to either being informed about the situation by a police officer or simply finding out about things at a later date. This is not indicative of family in the United Kingdom offering a support structure for the Appellant. There is the Protect from Harassment Order which for some time prevented any contact between the Appellant and his mother, a matter which neither of them have addressed at all in their evidence. None of the evidence before us suggests any significant or close family relationship, to the contrary, it suggests a relationship particularly between the Appellant and his mother as being one tinged with violence and aggression, as well as a lack of knowledge and understanding about the Appellant’s circumstances or mental health. For these reasons we reject the submission that the Appellant has closer ties and particularly closer family ties to the United Kingdom than Portugal.
105. On the evidence before us, the Appellant has already successfully re-established himself in Portugal and is able to continue to live independently there (with perhaps some family support) for the foreseeable future.
106. In all of these circumstances, balancing the risk posed by the Appellant to the fundamental interests of society and the factors above, we find the Appellant’s deportation to be proportionate and in accordance with regulation 27 of the EEA Regulations.
Conclusion of the Appellant’s appeal under Appendix EU to the Immigration Rules
107. For the reasons set out above, the Appellant’s appeal under Appendix EU to the Immigration Rules must fail as he fails to meet the mandatory suitability criteria in paragraph EU15 as he is the subject of a Deportation Order, as defined.
Is the Appellant’s deportation a breach of Article 8 of the European Convention on Human Rights?
108. For the purposes of this appeal, the usual five stage approach set out in Razgar v Secretary of State for the Home Department [2004] UKHL 27 applies to the assessment of whether the Respondent’s decision amounts to a disproportionate interference with the Appellants’ right to respect of family life pursuant to Article 8 of the European Convention on Human Rights.
109. In terms of private and family life established in the United Kingdom, this is essentially as set out in paragraphs 103 and 104 above which applies equally here. There is very little evidence before us of any significant private life developed in the United Kingdom by the Appellant and nothing of substance that has been relied upon in submissions. Whilst we accept that the Appellant had to some extent integrated in the United Kingdom, through family, some employment, access to medical treatment and general life during his seven years of residence; we do not consider this to be very strong given his time here was also marked by repeated criminality and nothing in the way of wider community ties or links. He has also been able to re-establish his private life in Portugal, with cultural and linguistic links, family ties there, employment and access to medical care.
110. In terms of family life, our findings that the Appellant has not established that he has a particularly close relationship with any family members in the United Kingdom and the reasons why are also already set out above and relevant here. Both at the time of his departure and now, we do not find that the Appellant has established that he has family life in the United Kingdom with adult family members for the purposes of Article 8 (although as above this would still form part of his private life). There is no more than a bare assertion of this that is not supported by any up to date evidence from family in the United Kingdom and previous evidence showed only limited support and contact. In particular, there is no evidence of any dependency or even emotional support from family in the United Kingdom, such that at its highest, there is nothing more than normal emotional ties between adult relations.
111. The Appellant’s deportation is a breach of the limited private life he has established in the United Kingdom and is in accordance with the law. The final question is whether the Appellant’s deportation is a disproportionate interference with his Article 8 rights. In this case issues were raised as to the applicability of Part 5A of the 2002 Act for the assessment of proportionality, which we deal with first.
112. Our findings above that the Appellant is a persistent offender apply equally for the purposes of considering his human rights appeal, as for the same reasons, he is a foreign criminal as defined in section 117D(2)(c) of the 2002 Act. As such, Part 5A of the 2002 Act applies to consideration of his Article 8 claim and in our view provides a complete code for the assessment of the same.
113. Section 117C of the 2002 Act sets out the additional considerations for Article 8 cases involving foreign criminals. It is not suggested on the Appellant’s behalf that he meets either the private life exception in section 117C(4) or the family life exception in section 117C(5) and therefore, beyond the general starting point that the deportation of foreign criminals is in the public interest, the only potentially applicable section is subparagraph (6) which provides:
(6) In the case of a foreign criminal who has been sentenced to a period of imprisonment of at least four years, the public interest requires deportation unless there are very compelling circumstances, over and above those described in Exceptions 1 and 2.
114. We do not accept Mr Khubber’s submission that this is not specifically applicable to the Appellant because it applies only to a ‘serious’ foreign criminal as distinguished by the length of sentence referred to, essentially by analogy with the reasons given by the Court of Appeal in NA (Pakistan) v Secretary of State for the Home Department [2016] EWCA Civ 662 and NE-A (Nigeria), in particular in paragraph 14 of the latter. Parliament’s intention was that the deportation of all foreign criminals who could not meet the statutory exceptions was to be considered by reference to section 117C(6). In any event, what we are ultimately required to undertake is a final proportionality balancing exercise to determine whether the are any very compelling circumstances (or even absent section 117C(6) simply factors) that outweigh the public interest in deportation. In this case, we do not for the following reasons.
115. In the Appellant’s favour, we have taken into account the limited private life he has established in the United Kingdom during his seven year’s residence here and his continuing family ties (albeit not particularly close ones).
116. On the Respondent’s side of the balancing exercise, we taken into account that the deportation of foreign criminals is in the public interest and there is also a public interest in protecting the public from future risk of harm, which we have already found to continue to be high.
117. We have also taken into account the Appellant’s criminal history and the likely causative links between his criminal offending and his drug use and poor mental health; alongside the nature and pattern of the Appellant’s offences. These are factors which lend weight in different ways to both sides of the balancing exercise. On the Appellant’s side, the particular circumstances are relevant, as is the relatively low level of offending (shown by the sentences imposed, which at most was 26 week’s imprisonment and for most were non-custodial sentences) and on the Respondent’s side, the persistent offending over many years is relevant.
118. Overall, the Appellant’s limited private life established in the United Kingdom is very significantly outweighed by the public interest in his deportation, even on the broader nuanced approach proposed by Mr Khubber. In the language of section 117C(6) of the 2002 Act, there are no very compelling circumstances to outweigh the significant public interest in deportation in this case.

Notice of Decision

For the reasons set out in the decision annexed, the making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it was necessary to set aside the decision.

The appeal is remade as follows:

The appeal is dismissed on all grounds.


G Jackson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22nd April 2025




IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-001182

First-tier Tribunal No: EA/15741/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE JACKSON
UPPER TRIBUNAL JUDGE BLUNDELL

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and

Jose Paulo Castro
(NO ANONYMITY ORDER MADE)
Respondent

Representation:
For the Appellant: Mr Z Malik KC of Counsel, instructed by the Government Legal Department
For the Respondent: Mr R Khubber of Counsel, instructed by Turpin Miller LLP

Heard at Field House on 24 September 2024


DECISION AND REASONS
1. The Secretary of State appeals with permission against the decision of First-tier Tribunal Judges Loke and Rai promulgated on 7 February 2024, in which the Tribunal allowed Mr Castro’s appeal against two decisions, (i) the decision to make a deportation order and refuse his human rights claim, and (ii) the decision to refuse his application under the EU Settlement Scheme. Although the decisions bear different dates and are referred to in other documents by different dates, it is not in dispute that these are typographical errors and both decisions were made on 18 October 2021. For ease we continue to refer to the parties as they were before the First-tier Tribunal, with Mr Castro as the Appellant and the Secretary of State as the Respondent.
Immigration history
2. The Appellant is a national of Portugal, born on 26 October 1992 who entered the United Kingdom initially in January 2014 as a young adult. He has a number of criminal convictions in the United Kingdom between 2016 and 2022, which are set out below as part of his history in the United Kingdom.
3. On 17 May 2016, the Appellant was convicted of six offences of criminal damage and one of possession of a knife in a public place (offences committed on various dates in March 2016), for which he was sentenced on 7 June 2016 to a community order with a rehabilitation requirement; together with a victim surcharge of £60 for one of the offences.
4. The Appellant made an application for status under the EU Settlement Scheme (the “EUSS”) on 31 October 2019. That application was rejected on 2 June 2020 because he had not provided a required identity document.
5. On 24 September 2020, the Appellant was convicted of one offence of criminal damage and of assault of an emergency worker, for which he received a fine of £80 and had to pay costs, a victim surcharge and a fine. The Appellant was also the subject of a restraining order – protection from harassment.
6. 2 October 2020, the Appellant was convicted of harassment (breach of restraining order) for which he was sentenced on 5 November 2020 to a period of imprisonment of 16 weeks.
7. On 22 October 2020, the Appellant was convicted of exposure, with a sentence of imprisonment of 16 weeks given on 5 November 2020 (consecutive to the above sentence given on the same date) and he was required to sign the Sex Offenders Register for seven years.
8. The Respondent sent a warning letter to the Appellant on 26 November 2020 as to his future conduct and the possibility of consideration of deportation action should he come to the adverse attention of the Home Office again; but confirming that no further action would be taken at that point.
9. On 15 April 2021, the Appellant was convicted of one offence of criminal damage, two offences of assaulting an emergency worker, one offence of harassment and one public order offence. In total he was sentenced to imprisonment for a period of 26 weeks (with individual sentences ranging from 14 days to 18 weeks, some to be served consecutively).
10. The Respondent served the Appellant with a stage one deportation notice on 2 May 2021 (albeit the document itself is dated 27 April 2021). The letter begins with a recitation of the Appellant’s criminal offences, starting with his conviction on 15 April 2021 and then listing previous convictions between 2016 and 2020 in chronological order. The letter expressly states as follows:
“The Secretary of State has deemed your deportation to be conducive to the public good and accordingly it is in the public interest that you be removed from the United Kingdom without delay. Therefore, the Secretary of State has decided to make a deportation order against you under section 5(1) of the Immigration Act 1971.”
11. In part 2 of the decision, the Respondent states:
“You have been convicted of criminal offences as set out in part 1 of this letter. The Secretary of State deems your deportation to be conducive to the public good under section 3(5)(a) of the Immigration Act 1971 as set out in part 1 of this letter. In this part you will find details of various additional considerations that were taken into account as part of this decision.”
12. The additional factor then referred to is the Appellant’s immigration history, that he arrived in the United Kingdom in 2014. A note then followed as to his liability to detention and next steps.
13. In response to this letter, the Appellant made representations against deportation based on family life and mental health issues on 13 May 2021.
14. The Appellant made a further application for status under the EUSS on 25 July 2021.
15. On 18 October 2021, the Respondent made the two decisions which are the subject of this appeal, the refusal of the Appellant’s human rights claim in the context of deportation and the refusal of his EUSS application. We return below to the detailed reasons for each decision.
16. On 13 July 2022, the Appellant was convicted of one offence of failing to comply with notification requirements under the Sexual Offences Act 2003 and two offences of battery; for which he was sentenced in total to imprisonment for 24 weeks (the two sentences of 8 weeks each for battery to be served concurrently) and two orders for compensation of £250 each.
17. On 1 September 2022, the Appellant was convicted of assault (committed on 4 July 2022) for which he was sentenced to four weeks imprisonment and ordered to pay compensation of £100.
18. On 23 September 2022, the Appellant was convicted of criminal damage (offence committed on 28 May 2022), for which he was sentenced to six weeks imprisonment and ordered to pay compensation of £150.
19. The Appellant was deported to Portugal on 20 October 2022 following an unsuccessful attempt to challenge the certification of his claim under Regulation 16 of the Immigration (Citizens Rights Appeals) (EU Exit) Regulations 2020 and certification of his human rights claims as clearly unfounded pursuant to section 94(1) of the Nationality, Immigration and Asylum Act 2002. The certification elements do not raise any ongoing issues in the context of the present appeals and therefore the detail is not referred to in this decision.
Decision to refuse the Appellant’s human rights claim
20. In the decision made on 18 October 2021, the Respondent set out the Appellant’s history and circumstances in the United Kingdom, as well as his representations against deportation, which included family life with his mother and siblings in the United Kingdom, all of whom have settled status under the EUSS. It was not suggested that any of these relationships could meet the family life exception to deportation. Reference is made back to the decision to deport sent to the Appellant on 2 May 2021 (albeit the letter referred to is dated 27 April 2021) and the criminal offences listed therein, followed be a conclusion that the Respondent deems the Appellant’s deportation to be conducive to the public good under section 3(5)(a) of the Immigration Act 1971.
21. The Respondent stated that: “Your deportation is conducive to the public good and in the public interest because you are a persistent offender. This is because you have received 5 convictions for 16 offences between 17 May 2016 and 15 April 2021.” and went on to list the details of all of those offences.
22. In terms of private life, the Respondent did not accept that the Appellant met all of the requirements in paragraph 399A of the Immigration Rules for this exception to deportation to apply. The Appellant had not been lawfully resident in the United Kingdom for most of his life; the nature of his offending did not demonstrate social and cultural integration in the United Kingdom and there were no very significant obstacles to his reintegration in Portugal. In particular, it was noted that the Appellant spoke Portuguese, had his father there, could maintain contact with other family from there and would be able to engage with available mental health services there.
23. Overall, there were also no very compelling circumstances to outweigh the public interest in the Appellant’s deportation and the human rights claim was therefore refused (and separately certified as clearly unfounded).
Decision to refuse the Appellant’s EUSS application
24. The Respondent refused the Appellant’s EUSS application on the basis that he did not meet the suitability grounds under rule EU15 as he was the subject of a deportation order (without specifying the specific provision applicable, whether paragraph (b)(i) or (ii) of the definition of deportation order). The decision states as follows:
“Public policy, public security or public health consideration
When a decision to make a deportation order has been made on non-conducive grounds in respect of conduct committed before 23:00 on 31 December 2020, your application for leave under the EU Settlement Scheme can only be refused on grounds of suitability under rule EU15 where the decision to make a deportation order is justified on the grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations 2016 (as saved), irrespective of whether the EEA Regulations apply to you.”
25. The decision continues with an assessment of threat pursuant to regulation 27(5) of the EEA Regulations; including a list of the Appellant’s convictions from 2016 to 2021, the view that the Appellant posed a high risk of re-offending and a high risk of serious harm to the public, known adults, children and staff; with the Appellant being subject to the MAPPA level 1 and on the Sex Offenders Register for seven years. The Respondent concluded that the Appellant has a propensity to re-offend and that he presented a genuine, present and sufficiently serious threat to the public, with deportation justified on grounds of public policy.
26. The Appellant’s deportation was considered to be proportionate having regard to the factors in regulation 27(5) of the EEA Regulations and that deportation would not prejudice the Appellant’s prospects of rehabilitation. Overall, the Respondent considered that the Appellant’s deportation was justified on grounds of public policy in accordance with regulation 23(6)(b), irrespective of whether the EEA Regulations (as saved) applied to him. There was no express consideration of the length of the Appellant’s residence in the United Kingdom or whether there were serious grounds of public policy applicable.

First-tier Tribunal decision
27. 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.
28. 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).
29. 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.
30. 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.
31. 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.
32. 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.
The appeal
33. The Respondent initially sought permission to appeal on the basis that the First-tier Tribunal erred in law on the following four grounds:
i. that the First-tier Tribunal adopted a legally flawed approach to the construction of the provisions in Appendix EU to the Immigration Rules; specifically (i) that the interpretation given had the effect that a person had enhanced protection as an EEA national offender after the United Kingdom’s withdrawal from the European Union where he would not have had the same protection before, which can not have been intended by the Respondent nor required by the EU Withdrawal Agreement; and (ii) the phrase ‘deportation order’ was mis-read, as the conduct relied upon included offending after the specified date, that was sufficient to conclude that the deportation order satisfied the definition in paragraph (b)(i) for ‘deportation order’ in Annex 1 to Appendix EU. The provision in (b)(ii) being expressly in the alternative.
ii. that the First-tier Tribunal erred in finding that the Appellant had five years’ continuous residence in the United Kingdom in circumstances where the Appellant himself did not positively assert his continuity of residence without absences during the relevant time.
iii. that the First-tier Tribunal erred in finding that the Appellant was no longer a persistent offender and/or the threat posed by him was not sufficiently serious in circumstances where (i) there was a factual error in the gap between the last offence in September 2022 and the date of hearing in January 2024 (which was sixteen months and not two years as relied upon by the First-tier Tribunal); (ii) where the approach taken was contrary to that in Chege (“is a persistent offender”) [2016] UKUT 187 (IAC), which did not require a person to continue to offend up to the date of decision to be considered a persistent offender; and (iii) where the First-tier Tribunal failed to properly consider the seriousness of offending by limiting itself to considerations of individual offences and whether there was public revulsion, without considering the frequency of offending and propensity to reoffend. The ground also asserts the First-tier Tribunal erred in finding there was no escalation in seriousness of offending because committing a crime following an earlier conviction is itself an escalation and results in increased sentences following each conviction.
iv. that the First-tier Tribunal erred in allowing the appeal on human rights grounds as this aspect of the decision was entirely based upon the conclusions under Appendix EU and the EEA Regulations; which for the reasons in grounds one to three were wrong in law.
34. There was no dispute that permission was expressly granted by the First-tier Tribunal on grounds one, three and four; but disagreement between the parties as to whether permission had also been granted on ground two. Prior to the hearing, the Respondent asserted that permission had been granted on all grounds, and in the alternative, sought an extension of time for a renewed application for permission to appeal on the second ground to the Upper Tribunal.
35. At the hearing we gave a preliminary indication that the First-tier Tribunal’s grant of permission was clear, that permission had expressly been granted on limited grounds (one, three and four) and refused on the second ground on the basis that it did not identify any arguable error of law. We also indicated that we were not minded to grant an extension of time for what was now a very late application for permission to appeal without any good reason for the delay, particularly where the ground appeared to have little arguable merit. At the hearing, Mr Malik KC did not pursue the application for an extension of time or the application for permission to appeal and for the avoidance of doubt, we formally refuse both. It is unarguable that it was not open to the First-tier Tribunal to find that the Appellant had resided continuously in the United Kingdom between 2014 and 2019 in circumstances where the Appellant had not specifically declared that he had not had any relevant absences during that time. The First-tier Tribunal considered all of the evidence of residence in the round, including of employment, access to health services and detention and reached a conclusion which was unarguably lawfully and rationally open to it on that evidence. The appeal has therefore proceeded on the basis of grounds one, three and four only, which we address in turn below.
36. We are grateful to Counsel for their helpful skeleton arguments and oral submissions on the remaining grounds, which we refer to in summary below.
Findings and reasons
Ground one – interpretation and construction of Appendix EU
119. 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.
120. Paragraph EU15 sets out the suitability requirements, so far as relevant, as follows:
(1) An application made under this Appendix will be refused on grounds of suitability where any of the following apply at the date of decision:
(a) The applicant is subject to a deportation order or to a decision to make a deportation order; or
(b) …
(2) An application made under this Appendix will be refused on grounds of suitability where the Secretary of State deems the applicant’s presence in the UK is not conducive to the public good because of conduct committed after the specified date.
(3) …
121. 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.
122. Annex 1 to Appendix EU contains definitions of terms set out in the main rules, which so far as relevant include:
deportation order
as the case may be:
(a) an order made under section 5(1) of the Immigration Act 1971 by virtue of regulation 32(3) of the EEA Regulations; or
(b) an order made under section 5(1) of the Immigration Act 1971 by virtue of section 3(5) or section 3(6) of that Act in respect of:
(i) conduct committed after the specified date; or
(ii) conduct committed by the person before the specified date, where the Secretary of State has decided that the deportation order is justified on the grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations, irrespective of whether the EEA Regulations apply to the person (except that in regulation 27 for “with a right of permanent residence under regulation 15” and “has a right of permanent residence under regulation 15” read “who, but for the making of the deportation order, meets the requirements of paragraph EU11, EU11A or EU 12 of Appendix EU to the Immigration Rules”; and for “an EEA decision” read “a deportation decision”); or
(c) …
in addition, for the avoidance of doubt, (b) includes a deportation order made under the Immigration Act 1971 in accordance with section 32 of the UK Borders Act 2007;
...
123. 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.
124. 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.
125. 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.
126. 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.
127. 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.
128. 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.
129. 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.
130. 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.
131. 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 and in the case of Vargova v Secretary of State for the Home Department, UI-2023-004566 (handed down on 26 September 2024, as yet unreported). 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.
132. 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.
133. 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.
134. 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.
135. 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.
136. 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):
(b) an order made under section 5(1) of the Immigration Act 1971 by virtue of section 3(5) or section 3(6) of that Act in respect of:
(i) conduct committed after the specified date; and/or
(ii) conduct committed by the person before the specified date, where the Secretary of State has decided that the deportation order is justified on the grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations, irrespective of whether the EEA Regulations apply to the person (except that in regulation 27 for “with a right of permanent residence under regulation 15” and “has a right of permanent residence under regulation 15” read “who, but for the making of the deportation order, meets the requirements of paragraph EU11, EU11A or EU 12 of Appendix EU to the Immigration Rules”; and for “an EEA decision” read “a deportation decision”); or
137. 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).
138. 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.
139. For these reasons we find no error of law in the First-tier Tribunal’s decision on the first ground of appeal.
Ground three – findings as to ‘persistent offender’ and as to the seriousness of offences
140. The Respondent’s primary position in relation to the third ground of appeal is that the First-tier Tribunal erred in fact as to the period over which the Appellant had not reoffended, referring in more than one place in the decision to this being a period of two years when in fact it was only one year and four months since the last conviction (slightly more since the commission of the latest offence). This factual error infected its assessment of whether the Appellant was a persistent offender at the date of hearing and consequently, the overall assessment of whether the Appellant presented a genuine, present and sufficiently serious threat to the public and ultimately, if so, whether the decision was proportionate.
141. There were a number of further points relied upon by the Respondent as follows. First, it was submitted that the First-tier Tribunal erred in its application of the principles in Chege (“is a persistent offender”) [2016] UKUT 187 (IAC) by proceeding on the basis that the Appellant could only be regarded as a persistent offender if he continued to offend up to the date of hearing and properly applied, it was not open to the First-tier Tribunal to conclude that by the date of hearing the Appellant was no longer a persistent offender.
142. Secondly, that the First-tier Tribunal erred in its assessment of the seriousness of the Appellant’s offences by failing to consider the frequency of offending and propensity to commit further crimes, as well as confining the idea of public revulsion to the kind of offending and not its frequency. In any event, public exposure is an offence which would attract public revulsion. Further, Mr Malik KC submitted that the First-tier Tribunal failed to take into account that committing a crime following an earlier conviction is itself an escalation of offending, such that it was not open to the First-tier Tribunal to conclude that there had been no escalation in the seriousness of offending. In particular, Mr Malik KC relied both on logic and common sense as to further offending being an escalation in seriousness, but also on the Sentencing Council Guidelines to show that further offending is a factor which increases the length of sentence for a later sentence. An example is that for assault of an emergency worker, which in the crown court sentencing guidelines, previous convictions are listed as an aggravating factor. However, Mr Malik KC could not demonstrate on this particular Appellant’s criminal history that there was a resulting increase in length of sentence given for the subsequent offences pursuant to such guidelines which would in itself be an indicator of escalating seriousness.
143. In summary, the Appellant’s position is that although there was a factual error in the length of time relied upon by the First-tier Tribunal without further offending, it was not material to the question of whether the Appellant was a persistent offender at the date of hearing. First, because the actual period was eighteen months from the last offence (rather than last conviction) which was not significantly different to two years; and secondly, because the assessment was more nuanced than just the period of time, also taking into account factors such as the Appellant’s deportation and more stable mental health.
144. On the First-tier Tribunal’s assessment of whether the Appellant posed a threat at the date of hearing, the Appellant’s position is that the findings made were rationally open to the First-tier Tribunal to make on the evidence. In particular, the Appellant’s criminal history does not show that there was any escalation in the seriousness of offending given that the length of sentences given fluctuated over time, with the longest of 26 weeks’ imprisonment in April 2021, which was followed by sentences of 24 weeks, 4 weeks and 6 weeks. Overall, the First-tier Tribunal made a quantitative and qualitative assessment of offending, which specifically did not include any emerging pattern or escalation of sexual offences. The mere fact that further offences were committed did not, per se, increase the seriousness of offending. In considering the evidence as a whole, the First-tier Tribunal were entitled to find that the Respondent had not established that there were serious grounds of public policy or public security to justify the Appellant’s deportation.
145. We deal first with the First-tier Tribunal’s reliance on there having been no offences committed by the Appellant for a period of two years up to the date of hearing on 10 January 2024. As accepted by the parties, this was a factual error given that the Appellant’s most recent conviction prior to the hearing was on 23 September 2022, a period of some one year and four months and the latest offence being committed on 4 July 2022 (for which he was sentenced in early September 2022), a period of some eighteen months prior to the hearing. Whilst we accept that the period without further offending would not as a matter of principle be determinative of whether the Appellant was a persistent offender, nor would that conclusion necessarily be determinative of whether the Appellant posed a genuine, present and sufficiently serious threat to the public; we find that in this case, it can not be found that the factual error was not material to these further findings given the repeated reliance placed on it in the First-tier Tribunal’s decision, particularly given the other indicators that the Appellant continued to pose a risk. That factual error alone is in our view sufficient to undermine the safety of the remaining findings and the decision must be set aside in relation to the assessment of risk and therefore also as to proportionality which follows on from it.
146. We find less merit in the remaining points raised by the Respondent within this ground of appeal which were more akin to disagreement with the consideration of and weight to be attached to various factors considered in the round, particularly as to the seriousness of offending. On the facts, we are not persuaded that the First-tier Tribunal erred in law in finding that there had not been an escalation in the seriousness of offending, albeit the position was a little more nuanced than that presented on behalf of the Appellant when looking at individual sentences for specific offences rather than overall period of sentencing which involved some concurrent and some consecutive sentences, there was a small increase in length of sentence between those given in April 2021 and July 2022, albeit much shorter sentences were given for the final two convictions.
147. We further consider that the submissions made in relation to public revulsion were somewhat of a red herring which were unlikely to be material either way. Whilst this is a factor that could potentially be relevant to the assessment, this is not really one of those cases where it would carry great weight if relevant at all given that the Appellant’s offending is not of the type or frequency that would likely engage this concept as against other examples of where it would clearly apply (SSHD v Robinson [2018] EWCA Civ 85, [2018] 4 WLR 81 refers, at [71]). That is not to reduce the possible public revulsion against the exposure offence, but to recognise that it remains at the lower end of the scale for this.
148. Theses are in any event matters which will need to be considered in the round when the appeal is remade on this issue and do not detract from the primary finding that the decision on assessment of threat must be set aside due to the factual error which infects the remaining findings and assessment.
Ground four – Article 8
149. There was no dispute between the parties that this final ground of appeal stood or fell with the two grounds already considered above and that if there was an error of law in one or other of them, this ground would also succeed as the reasoning for allowing the appeal on human rights grounds was entirely dependent on the EUSS findings. For these reasons, we find an error of law on this final ground and the decision must be set aside on this ground as well.


Notice of Decision

The making of the decision of the First-tier Tribunal did involve the making of a material error of law. As such it is necessary to set aside the decision.

We set aside the decision of the First-tier Tribunal.


Directions

1. The appeal to be listed for a face to face hearing before Judges Jackson and Blundell on the first available date six weeks after this decision has been sent, with a time estimate of 3 hours.

2. Any application to the Respondent for the Appellant to return to the United Kingdom to give evidence in his appeal and/or any application to the Upper Tribunal for the Appellant to give evidence from Portugal to be made within 21 days of the date on which this decision is sent. Any such application should include any request for an interpreter if required.

3. Any further evidence upon which the Appellant wishes to rely to be filed and served no later than 4pm, 14 days before the relisted hearing. If any person intends to give oral evidence, a written statement (or updated written statement) is required to stand as evidence in chief.

4. Any further evidence upon which the Respondent wishes to rely to be filed and served no later than 4pm, 7 days before the relisted hearing.


G Jackson

Judge of the Upper Tribunal
Immigration and Asylum Chamber

22nd October 2024