United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER	Case No: UI-2024-004834 & UI-2024-004835
	First-tier Tribunal No: HU /55256/2023 EU/51206/2024 LH/01633/2024 LE/01563/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

28th March 2025

 

Before

 

UPPER TRIBUNAL JUDGE SMITH

UPPER TRIBUNAL JUDGE LODATO

 

Between

 

ADAO DA GRACA ISSENGUEL

(NO ANONYMITY ORDER MADE)

Appellant

and

 

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Mr Doerfel, counsel instructed by Ricardina Bridges Solicitors

For the Respondent: Ms Nwachuku, Senior Presenting Officer

 

Heard at Field House on 19 March 2025

 

DECISION AND REASONS

 

Introduction

 

1.              This decision follows the resumed hearing heard on 19 March 2025. The decision of the First-tier Tribunal was found to have involved a material error of law, and was set aside, in the error of law decision of 13 January 2025.

 

2.              The appellant, an Angolan national who has also recently been naturalised as a Portuguese citizen, appeals on human rights grounds and under the Immigration (Citizens' Rights Appeals) (EU Exit) Regulations 2020 ('the 2020 regulations'). A potentially decisive question to be resolved in the appeal is whether the respondent failed to justify the refusal of a family permit under the European Union Settlement Scheme ('EUSS') under regulation 27 of the Immigration (European Economic Area) Regulations 2016 ('the 2016 regulations'), as preserved for these purposes. The position is complicated by a previous decision to refuse a family permit which was expressly taken under the 2016 regulations, purporting to take into account the requirements of regulation 27, but against which the appellant did not exercise his right of appeal. In short, the central point of dispute between the parties was whether the 2016 regulations decision fell to be treated as the justification required for the EUSS decision to be lawful. For the reasons which follow, we have come to the conclusion that the 2016 regulations decision cannot, in law, plug the gap in the EUSS decision and that the appeal against this decision must be allowed. It follows that the Article 8 human rights appeal must also succeed upon application of the decision-making framework in Razgar v SSHD [2004] 2 AC 368 and having regard to the judgment of the Court of Appeal in Secretary of State for the Home Department v AA (Poland) [2024] EWCA Civ 18 (' AA (Poland)').

 

Background

 

3.              Below is a chronology of the relevant immigration history and key procedural events which form the backdrop to this appeal:

 

•          1 May 2002 - the appellant entered the UK unlawfully.

•          3 May 2002 - the appellant claimed asylum.

•          24 June 2002 - the respondent refused the appellant's asylum claim but granted him leave to remain until 24 June 2006.

•          5 July 2004 - the appellant was convicted of conspiracy to defraud and sentenced, on 10 September 2004, to a term of imprisonment of 12 months.

•          8 December 2006 - the respondent signed a deportation order against the appellant after he indicated a willingness to be voluntarily returned to Angola.

•          21 January 2007 - the appellant was deported to Angola.

•          26 June 2014 - the appellant married his Portuguese partner in Angola.

•          2016 - the appellant, his wife and their children relocated from Angola to Portugal.

•          October 2020 - the appellant's wife moved, alone, to the UK.

•          April 2021 - the couple's children moved to the UK to join their mother while the appellant remained in Portugal.

•          7 April 2021 - the respondent refused the appellant's application for a family permit to join his wife and three children (all of whom are EEA citizens) in the UK. This decision was taken under the 2016 regulations. The appellant never exercised his right of appeal against this decision.

•          1 June 2022 - the appellant applied for the deportation order to be revoked.

•          9 March 2023 - the application for revocation of the deportation order was refused on Article 8 human rights grounds. The appellant exercised his right to appeal against this decision, which is a subject of the present proceedings.

•          12 January 2024 - the respondent refused the appellant's application, of 7 August 2023, to join his wife and three children under the EUSS as implemented by Appendix EU (Family Permit) to the Immigration Rules. The appellant exercised his right to appeal against this decision, which is also a subject of the present proceedings.

•          18 August 2024 - the First-tier Tribunal dismissed his grounds of appeal against both the EUSS and Article 8 refusal decisions.

 

4.              The respondent's refusal decision of 7 April 2021 was taken under the 2016 regulations. It was decided that issuing the appellant with a family permit would be contrary to public policy, public security or public health. The principles of regulation 27(5) were referred to before the following observations were made:

 

For the following reasons, it is considered that your personal conduct represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, taking into account your past conduct and that the threat does not need to be imminent;

 

It is noted that you have been convicted of the following offence on the following dates:

 

On 10 September 2004, you were convicted and sentenced to 12 months imprisonment.

 

In light of the evidence above it is considered that your threat is present (in that there is a risk of you repeating the behaviour), and that such a threat is contrary to the fundamental interests of society as set out in Schedule 1 of the Immigration (European Economic Area) Regulations 2016 namely:

(a) maintaining public order

(b) preventing social harm

(c) 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

(d) protecting the rights and freedoms of others, particularly from exploitation and trafficking

 

Proportionality

 

In light of the threat you would pose in the United Kingdom. it has been considered whether refusing you an EEA family permit is proportionate.

 

Your application has been considered however, given that you remain the subject of an extant deportation order dated 8 December 2006, it is considered that you pose a genuine, present and sufficiently serious threat to one of the fundamental interests of United Kingdom society. It is considered that the decision to refuse your application for an EEA Family Permit is justified on grounds of public policy, public security or public health in accordance with regulation 23(6)(b). Your personal circumstances that you have stated in the application have been considered but our view is that the decision to refuse your EEA Family Permit application is proportionate and in accordance with the principles of regulations 27(5) and (6).

 

On 8 December 2006 a deportation order was signed against you and on 21 January 2007 you were deported to Angola. In light of these considerations. it is considered that refusing you an EEA family permit is proportionate.

 

Conclusion

 

Taking your personal conduct into account, it is considered that would pose a genuine, present and sufficiently serious threat to the fundamental interests of UK if you were to be granted an EEA family permit and that refusing your application is proportionate given this threat.

 

I therefore refuse your EEA Family Permit application on grounds of public policy in accordance with regulation 12 of the Immigration (European Economic Area) Regulations 2016.

 

5.              The refusal decision notified the appellant of his appeal rights which he did not exercise.

 

6.              The refusal of the appellant's human rights claim, in the context of an application to revoke his deportation order was decided on 9 March 2023. The decision-maker assessed the appellant's Article 8 family and private life claims and concluded that he could not meet any of the statutory exceptions under s.117C of the Nationality, Immigration and Asylum Act 2002 nor were there very compelling circumstances to outweigh the public interest in his continued exclusion from the UK as a foreign criminal. In commenting on the weight of the public interest in maintaining the deportation order, little was said about the nature of the offending or any continuing danger presented by the appellant given the extensive passage of time since the offence was committed. It was noted that he had been sentenced to a period of imprisonment of 12 months and that the judge who sentenced him regarded the offence as serious. Within this assessment, the following points were made about the applications his family had made under the EUSS:

 

You have submitted that your client's wife is in UK, and she has been granted leave to remain under EUSS scheme until 24 October 2025. Your client is currently still outside the UK and was on 31 December 2020, at the end of the EEA Transitional period. He is not protected under the Grace Period Statutory Instrument (GPSI) and the EEA Regulations as saved. The fact that your client's wife has settlement here under the EUSS Scheme has no bearing on this. Your client will only have been protected under the EEA Regulations if he was lawfully resident in the UK in accordance with the EEA Regulations at the end of the EEA Transitional period.

 

7.              There is no reference to regulation 27 of the 2016 regulations within the decision letter of 9 March 2023. The following overall conclusion was reached:

 

Consideration has been given to the representations you have made in support of revoking the deportation order signed against your client. In order to outweigh the very significant public interest in maintaining your client's deportation order, you would have to provide evidence of a very strong Article 8 claim over and above the circumstances described in the exceptions to deportation. No such evidence has been provided. The Secretary of State considers that your client's criminal conduct is so serious and that in the interests of legitimate aims of the prevention of disorder and crime and the maintenance of an effective immigration control means that your deportation continues to be conducive to the public good, and therefore it has been decided not to revoke the deportation order signed on 30 November 2006 and enforced on 21 January 2007.

 

8.              In the refusal decision of 12 January 2024, taken under the EUSS, the following reasons were given:

 

Reasons for Refusal ROA

 

On 7 August 2023, you made an application for an EU Settlement Scheme (EUSS) Family Permit under Appendix EU (Family Permit) to the Immigration Rules on the basis you are a 'family member of a relevant EEA citizen'.

 

I have considered whether you meet the validity, eligibility and suitability requirements for an EUSS Family Permit, which are set out in Appendix EU (Family Permit) to the Immigration Rules ( https://www.gov.uk/guidance/immigration-rules/appendix-eu-family-permit ).

 

You can also find out more about the requirements in the guidance on GOV.UK

(https://www.gov.uk/family-permit/eu-settlement~scheme-family-permit)

 

Home Office records show you have one of the following 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) The applicant is subject to an exclusion order or exclusion decision.

 

An applicant who has previously been deported from the UK at any time must, where the order is still extant, apply in writing from abroad for a revocation of the Deportation Order and wait for the outcome of the revocation request before they can travel to the UK (if a non-visa national) or before applying for an entry clearance (if a visa national).

 

An application for entry clearance from a person with an extant Deportation Order will be refused automatically. Entry in breach of a Deportation Order is a criminal offence under section 24 (1) (a) of the 1971 Act. Any leave acquired prior to making the Deportation Order or while it is in force is invalid.

 

Home Office records confirm that you applied for a revocation of your Deportation Order on 13 May 2022, which was subsequently refused on 9 March 2023, a decision which you have since appealed. This appeal is currently ongoing.

 

As of today's date, your Deportation Order has not successfully been revoked, therefore your application does not meet the suitability and eligibility requirements for leave under the EU Settlement Scheme family permit.

 

You may re-apply for an EUSS Family Permit if your appeal is successful.

 

[...]

 

9.              This refusal decision did not expressly address regulation 27 of the 2016 regulations.

 

Legal Framework

 

10.          Articles 20 and 21 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community provide:

 

Article 20

 

Restrictions of the rights of residence and entry

 

1.The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under this Title, where that conduct occurred before the end of the transition period, shall be considered in accordance with Chapter VI of Directive 2004/38/EC.

 

2.The conduct of Union citizens or United Kingdom nationals, their family members, and other persons, who exercise rights under this Title, where that conduct occurred after the end of the transition period, may constitute grounds for restricting the right of residence by the host State or the right of entry in the State of work in accordance with national legislation.

 

[...]

 

Article 21

 

Safeguards and right of appeal

 

The safeguards set out in Article 15 and Chapter VI of Directive 2004/38/EC shall apply in respect of any decision by the host State that restricts residence rights of the persons referred to in Article 10 of this Agreement.

 

11.          The UK implemented its obligations under the Withdrawal Agreement through Appendix EU and Appendix EU (Family Permit) of the Immigration Rules. As this appeal concerns an application to enter the UK, we need only address the latter of these appendices. Where relevant, Appendix EU (Family Permit) provides:

 

FP7. (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) The applicant is subject to an exclusion order or exclusion decision.

 

[...]

 

(4) An application made under this Appendix may be refused on grounds of suitability where, at the date of decision, the entry clearance officer is satisfied that:

 

[...]

 

(b)(i) The applicant:

(aa) Has previously been refused admission to the UK in accordance with regulation 23(1) of the EEA Regulations; 

[...] and

(ii) The refusal of the application is justified either:

(aa) In respect of the applicant's conduct committed before the specified date, on 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 that person (except that in regulation 27 for "with a right of permanent residence under regulation 15" and "who has a right of permanent residence under regulation 15" read "who has indefinite leave to enter or remain or who meets the requirements of paragraph EU11, EU11A or EU12 of Appendix EU to the Immigration Rules"; and for "an EEA decision" read "a decision under paragraph FP7(4)(b) of Appendix EU (Family Permit) to the Immigration Rules"), and it is proportionate to refuse the application; or

 

(bb) In respect of conduct committed after the specified date, where the applicant's presence in the UK is deemed not to be conducive to the public good.

 

(5) The references in this paragraph to an order or decision to which the applicant is subject do not include an order or decision which, at the date of decision on their application under this Appendix, has been set aside or revoked.

 

[...]

 

Annex 1 - Definitions

 

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 has indefinite leave to enter or remain or who, but for the making of the deportation order, meets the requirements of paragraph EU11, EU11A or EU12 of Appendix EU to the Immigration Rules"; and for "an EEA decision" read "a deportation decision"); or

(c) an order made under section 5(1) of the Immigration Act 1971 by virtue of regulation 15(1)(b) of the Citizens' Rights (Frontier Workers) (EU Exit) Regulations 2020

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

 

12.          In Vargova (EU national: post 31 December 2020 offending: deportation) [2024] UKUT 336 (IAC), a Presidential panel interpreted Articles 20 and 21 of the Withdrawal Agreement and made the following observations, at [61]-[63]:

 

In our view Article 20(1) clearly creates a defined class of individuals who are entitled to retain the protection set out in the Directive in relation to any attempt to restrict their rights of residence and entry. Applying the ordinary meaning of the words there is nothing to suggest that the protection provided by the Directive applies to any other class of individuals to the same extent. If that had been the intention of the contracting parties, they would have said so, but they do not. We find there is merit in Ms Smyth's submission in relation to the creation of a specific class of individuals to whom the Directive continues to apply when one considers the wording of Article 20(1) of the Withdrawal Agreement. The class is effectively defined by Article 20(1) as those who have committed conduct prior to the end of the transition period which falls to be considered in relation to any impact it might have on that person's rights of residence and entry.

 

This interpretation is reinforced by the wording of Article 20(2) which specifically provides, by contrast, that where a period of conduct occurs after the end of the specified date then that conduct may constitute grounds for restricting the rights of residence in the host state or the right of entry in accordance with national legislation. Article 20(1) therefore creates an exception to the general proposition that following the end of the transition period and in accordance with the Withdrawal Agreement EU law has no application.

 

We therefore find that there is a 'bright line' distinction to be drawn between the regimes that apply to those who commit offences prior to the end of the transition period and those who commit offences after this date. In relation to the latter the intention of the Withdrawal Agreement is clear in that the substantive protection provisions found in EU law, including the application of the EU law proportionality principle, ceased to be applicable.

 

[Underlining added]

 

13.          The meaning of 'deportation order' was considered in a further recent reported decision of the Upper Tribunal in Castro (Appendix EU, "deportation order") [2024] UKUT 393 (IAC). While this decision considered the definition of deportation order in the context of Appendix EU, the language used in defining this term for the purposes of Appendix EU (Family Permit) is identical. The panel said this, at [47]-[48] in their interpretation of the two types of deportation described in the applicable rules:

 

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.

 

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.

[Underlining added]

 

14.          The above reported decisions are consistent with the detailed analysis of the EEA deportation legal framework following the UK's withdrawal from the European Union in Abdullah & Ors (EEA; deportation appeals; procedure) [2024] UKUT 66 (IAC). Abdullah also considered the impact that a successful appeal against an EEA deportation decision would have on an extant challenge made on domestic human rights grounds. At [101]-[103], the panel said this:

 

In that context, we pause here to remind ourselves of the consequences of the finding that a decision to deport is contrary to the EEA Regulations, the WA or the EUSS. In doing so, we note Ms Smyth's acceptance before us that the consequence would be that the person who was successful in such an appeal would be that the deportation order would be revoked, and leave granted under the EUSS at which point the person in question would be a relevant person for the purposes of Exception 7 under section 33 of the 2007 Act and section 3(5A) of the 1971 Act. The effect of Exception 7 differs significantly from Exception 14 in the effect it has on section 3(5)(a) of the 1971 Act and whether a deportation is conducive.

 

We remind ourselves also of the difficulty posed by sections 117A to 117D, and in particular, 117C of the 2002 Act, as identified in AA (Poland). Unlike the situation in TZ (Pakistan) and PG (India) v The Secretary of State for the Home Department [2018] EWCA Civ 1109, where a foreign criminal is involved, the policy as set out in the statute, is that they should be deported. Even were that overcome, an anomalous situation arises whereby, if the appeal is allowed on EEA Regulations Grounds (or under the CRA Regulations when leave is granted) Exception 7 would apply and all that flows from that, but if Exception 1 applies, as a result of allowing the appeal on human rights grounds, with a different result as to the conduciveness of deportation. This situation would be all the more anomalous were the EEA Regulations test to be considered as part of an assessment of proportionality in considering the fifth Razgar question that it is necessary to consider whether the requirements of the immigration rules are met.

 

Taking all of these factors into account and applying the principles set out in Bridges, we consider that because of the particular nature of the two deportation regimes, that it flows from a finding that a deportation decision is contrary to the EUSS rules because it is not justified by reference to reg. 27 will result in a finding that it is "not in accordance with the law" and thus any article 8 appeal would succeed on that basis. This should not, however, be understood as applying to those situations where other provisions of the Immigration Rules are met; that still requires an assessment of proportionality in line with TZ (Tanzania).

 

15.          We were addressed on the Home Office guidance to staff: Public policy, public security or public health decisions, version 7.0 published on 30 September 2022 and EU Settlement Scheme: suitability requirements, version 9.0 of 24 September 2024. At page 18 of the 2022 guidance, the following instructions are given:

 

Appendix EU (Family Permit) to the Immigration Rules provides that where an applicant for an EUSS family permit is the subject of a deportation order or exclusion order made under the EEA Regulations 2016 their application must be refused. Where the person is the subject of a deportation order or exclusion decision made other than under the EEA Regulations 2016, and the conduct in question occurred before 23:00 GMT on 31 December 2020, the public policy, public security or public health test in regulation 27 of the EEA Regulations 2016 must be applied, and if met, their application must be refused. If the applicant has previously been refused admission under regulation 23(1) of the EEA Regulations 2016 or regulation 12(1)(a) of the Frontier Workers Regulations 2020, or has previously had their EUSS leave or EUSS family permit cancelled, if the conduct in question occurred before 23:00 GMT on 31 December 2020, the public policy, public security or public health test in regulation 27 of the EEA Regulations 2016 must be applied.

 

16.          The 2024 guidance provides the following instructions to caseworkers as to how the suitability requirements should be applied (albeit in the context of Appendix EU):

 

If the person is the subject of an existing deportation order made under section 5(1) of the Immigration Act 1971 in respect of conduct occurring prior to the end of the transition period, but that decision cannot be justified in accordance with regulation 27 of the EEA Regulations 2016, as applied by Appendix EU, and the person otherwise satisfies all other eligibility and suitability criteria, then the deportation order should be revoked so that EUSS leave can be granted (if the deportation order is not revoked any EUSS leave granted will be invalid under section 5(1) of the Immigration Act 1971). [Page 18]

 

[...]

 

Where an application falls to be refused under rule EU15(1) on the basis that the applicant is subject to a deportation order, exclusion order or exclusion decision made under the European Economic Area (EEA) Regulations 2016, as saved, it is not necessary to set out the reasons for the earlier decision. The EU Settlement Scheme (EUSS) decision letter must refer to the letter communicating the earlier order or decision to the applicant.

 

Where a person is subject to a deportation order or exclusion decision made on the ground it is conducive to the public good in respect of conduct committed before 11:00pm GMT on 31 December 2020, you must consider whether this conduct meets the public policy, public security or public health test when considering the EUSS application. If that test is met, then the EUSS application must be refused on suitability grounds under rule EU15(1) using ICD.5252 B. There is no need to reconsider the deportation decision on public policy, public security or public health grounds. The deportation order must be maintained. [Page 29, and underlining added]

 

Appeal to the First-tier Tribunal

 

17.          The appellant appealed against the refusal decisions of 9 March 2023, on human rights grounds, and of 12 January 2024, under the 2020 regulations. The appeals were heard compendiously by the judge on 26 June 2024 before dismissing all grounds in a decision promulgated on 18 August 2024.

 

Appeal to the Upper Tribunal

 

18.          The appellant made a late application to adduce a further bundle of evidence and supporting documents. The bundle included a further witness statement from the appellant's wife, Mrs Issenguel. She attended the remaking hearing to give oral evidence if required. Ms Nwachuku did not object to this further evidence being admitted and we found it to be in the interests of fairness and justice to receive the supplementary bundle.

 

19.          To provide the necessary context for the remaking decision, below are copied paragraphs [26]-[27] and [29]-[32] of the error of law decision:

 

[26] [...] it is abundantly clear that the judge was required in law to assess regulation 27 to decide the ground of appeal under the 2020 regulations. The only criminal conduct which underpinned the deportation order to which the appellant was subject occurred many years before the specified date at 11pm on 31 December 2020. The respondent was not entitled, in the 2024 refusal decision, to simply point to an extant deportation order and conclude that the appellant could not meet the suitability requirements of the applicable Immigration Rules which gave effect to legal duties encapsulated within the Withdrawal Agreement. The legal scheme in Appendix EU (Family Permit) gives the phrase 'deportation order' a particular meaning which means that the extant deportation order against the appellant could only qualify for the purposes of the suitability requirements if the refusal was first justified on grounds of public policy, public security or public health and proportionate in accordance with regulation 27. The respondent, in the January 2024 decision, never so much as mentioned regulation 27 much less engaged with the applicable principles. The judge fell into the very same legal error in that he did not apply his mind to regulation 27 such that he could lawfully dismiss this ground of appeal. Vargova is clear that there is bright line to be drawn between criminal conduct which occurred before the specified date and that which occurred after. This is one of those straightforward cases referred to in Castro where the criminal conduct undisputedly and exclusively took place before the specified date such that the legal right of the appellant to join his EEA citizen family members in the UK could only be denied on deportation-suitability grounds if refusal was justified on public policy and public security grounds. I am entirely satisfied that the judge adopted a fundamentally flawed and legally erroneous approach to his decision to dismiss this ground of appeal.

 

[27] For the reasons I have given above, the decision to dismiss the ground of appeal founded on Appendix EU (Family Permit) involved a material error of law. In view of the interrelationship between the EU ground of appeal and that brought under s.82 of the 2002 Act on human rights grounds (see passages of Abdullah cited above), I set aside the decision to dismiss both grounds of appeal.

 

[29] The parties spoke as one in inviting me to immediately remake the decision if I allowed the appeal on grounds one and/or two. Mr Doerfel further suggested that if I were to remake the decision, I need not address my mind to regulation 27 because the respondent had not justified the January 2024 refusal on these grounds. It followed that there had been no decision taken under regulation 27, and no basis on which a judge could endorse a putative respondent position which had not, in fact, been taken. Mr Tufan did not seek to argue against this approach and noted that the 2022 decision, taken under the 2016 regulations and which adopted a position under regulation 27, had never been subject to appeal and was not before the tribunal.

 

Disposal

 

[30] The potential difficulty with the argument advanced by the parties is to be found in the plain words of the definition of 'deportation order' in Appendix EU (Family Permit). Paragraph (b)(ii) of the definition is in the following terms: "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 [...]" [underlining added]. The implication of Mr Doerfel's argument is that the phrase "has decided" must refer to a decision in the refusal under challenge which here is the January 2024 decision. Both sides effectively agreed that the 2022 decision, taken under the 2016 regulations and not appealed, was of no legal effect in bringing the extant deportation order within the definition as one in which the Secretary of State had decided that regulation 27 applied to justify the refusal of entry.

 

[31] The first point to note is that the phrase "has decided", read naturally, plainly denotes a decision of the past. On its face, it is not confined to a particular decision such as that currently subject to appeal proceedings. It is difficult to discern an obvious reason why a previous decision taken pursuant to regulation 27 could not bring an extant deportation order within the terms of this definition.

 

[32] The meaning of "has decided" was not addressed during the error of law hearing nor in written submissions. I consider it to be in the interests of justice for a remaking hearing to be convened in accordance with my directions below so that the parties can address their minds to this point before a decision is reached on the merits of the appeal.

 

20.          At the outset of the remaking hearing, we indicated that we were minded to hear submissions going to the point of principle identified in the error of law decision before hearing any oral evidence. The parties did not object to this course. After we heard oral submissions, we indicated that we were minded to allow both grounds of appeal and that there would not be a need to hear oral evidence. These are our reserved reasons for allowing the appeal.

 

Discussion

 

21.          In response to the error of law decision referred to above, the respondent argued that the 2021 decision refusal decision taken under the 2016 regulations amounted to the necessary justification to cause the deportation order to qualify for the purposes of the refusal under the EUSS suitability requirements. In short, the broad position adopted by the respondent was that the phrase "has decided", in the definition of deportation order, embraced a previous decision pursuant to regulations 12 and 23 of the 2016 regulations, which took regulation 27 of those regulations into account as part of its justification. We are unable to accept that submission for several reasons.

 

22.          Firstly, a strained submission was advanced at the hearing that we could infer from the EUSS refusal that the substance of the 2021 decision had been indirectly relied upon. This argument was built on an inferential chain of reasoning whereby the references to the application to revoke the extant deportation order were said to impliedly involve consideration of the 2021 decision. This loses sight of the reality that the application to revoke the deportation order was not only founded on the proper application of the European legal framework, but also on Article 8 human rights grounds. It cannot be safely inferred from these oblique references to the revocation application that the decision-maker who took the EUSS decision was directing his or her mind to the conclusions which were reached on the substance of the regulation 27 criteria in the 2021 decision. Additionally, these references to the revocation application can equally be read as merely setting out the anodyne procedural backdrop to the merits-based assessment which fell to be undertaken. We are satisfied that, in considering the merits of the EUSS application, the decision-maker has plainly confined themselves to the fact that an extant deportation was in existence. There is nothing which tends to indicate that a meaningful assessment of the regulation 27 criteria was conducted in the context of that particular decision at that time.

 

23.          Secondly, the Secretary of State's guidance documents summarised above strongly support the proposition that the intention which underpinned the framing of the applicable rules was that a decision-maker considering an EUSS application could only refuse a family permit in reliance on a deportation order founded on pre-31 December 2020 criminal conduct if regulation 27 was applied at the time of their decision. A close reading of the sequential structure of FP7(4) reveals that when suitability is being assessed on the strength of an existing deportation order, the entry clearance officer can refuse the application where: (i) the applicant has previously been refused entry upon application of regulation 23 of the 2016 regulations and (ii) the refusal is justified upon application of regulation 27. The underlining in the previous sentence is intended to underscore that a decision-maker confronted with facts such as in this case must go from looking to the past, if there has been a previous refusal of entry clearance under regulation 23, to an assessment in the present. This was precisely the factual matrix which was before the decision-maker in the present case. A decision had been taken under regulation 23. However, the analysis here did not move on, as it should, to whether refusal of a family permit continued to be justified at the time when the decision was being taken.

 

24.          Despite the concerns initially raised in the error of law decision about the meaning of "has decided", a fuller consideration of this language fortifies us in the view that this cannot be taken to embrace a previous decision which justified, in the past, a refusal under regulation 27. Grammatically speaking, "has decided" adopts the past imperfect tense which refers to a current decision which will continue to affect matters going forward. As Judge Smith observed during the hearing, if the Secretary of State intended to draw in a previous decision as underpinning the current justification, the drafter would have used the words "had decided".

 

25.          We found it to be instructive that the guidance is equally clear about the decision-making process which should flow from an existing deportation order which had itself been made under the 2016 regulations, and upon application of regulation 27. In a subsequent refusal under the EUSS (EU15(1)), it would be unnecessary to set out the reasoning again, but there would need to be express reference to the earlier decision letter. If the respondent's submission were correct, that the EUSS decision-maker did not need to expressly refer to the 2021 decision, it struck us as odd that the procedural requirements for such a decision were less demanding than where deportation had always been founded on an assessment of regulation 27.

 

26.          Thirdly, and perhaps most persuasively, the Withdrawal Agreement itself leads us to the inexorable conclusion that the respondent's argument cannot be right. It is exceptionally difficult to reconcile the obligation placed upon the UK in Article 20(1), for consideration to be given in accordance with Chapter IV of Directive 2004/38/EC to pre-specified date offending, with the ability of the state to simply point to an earlier justification. In no meaningful sense would this amount to consideration but would, instead, be tantamount to freezing in time a previous consideration. It only takes but a moment to see the absurd results which might flow from entrenching an earlier decision in this way. By way of illustration, consider a scenario where a previous refusal decision was taken at a time when the applicant only benefitted from basic protection, in that he had only been resident in the UK for less than 5 years, and he subsequently acquired permanent residence by the time the EUSS decision was taken. The result would be that the applicant would be deprived of a greater level of protection against removal than he would have at the time when his personal circumstances should be the subject of consideration under the Withdrawal Agreement.

 

27.          At paragraph 9 of the respondent's skeleton argument prepared for the remaking hearing, it was suggested that the appellant bears the burden to "make his case". This is not entirely accurate. In the context of the European legal framework, and for the reasons we have given, the respondent must first justify the refusal of a family permit under regulation 27. In the EUSS refusal, the respondent has not even relied upon regulation 27, much less was there any attempt to justify the refusal under these criteria. The respondent has manifestly not attempted to justify the refusal decision applying the correct legal principles. The respondent was required to establish the requisite level of threat and has demonstrably not done so. It follows that the appeal against the EUSS refusal decision must succeed and this, in turn, means that the Article 8 human right appeal must also succeed. For the reasons given above, the ground of appeal founded on Appendix EU (Family Permit) and the Withdrawal Agreement is allowed. In view of the interrelationship between the EU ground of appeal and that brought under s.82 of the 2002 Act on human rights grounds (see passages of Abdullah cited above and [72] of the judgment in AA (Poland)), the human rights ground of appeal is likewise allowed.

 

 

Notice of Decision

 

Both the EUSS and Article 8 human rights grounds of appeal are allowed.

 

 

Paul Lodato

 

Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

 

25 March 2025