EEA Deportations: Enhanced Levels of Protection And Periods of Activity, Residence and Imprisonment

The Court of  Appeal’s  recent decisions in Warsame v The Secretary of State for the Home Department [2016] EWCA Civ 16 and Secretary of State for the Home Department v Vassallo [2016] EWCA Civ 13  considered the circumstances in  which reliance can be  placed upon   enhanced levels of protection provided within the Citizen’s Directive  in relation to expulsion of   EEA nationals  subject to deportation proceedings.

The central question in Vassallo was  whether the Tribunal was  correct in law to find that Mr Vassallo had acquired a right of permanent residence.  The  Court of Appeal  having   full regard to the  Citizen’s Directive,  relevant  CJEU caselaw and  the 2006 EEA Regulations,  decided  that having regard to the  character of the  EEA national’s  residence in the UK,  after a historical  accrual of  the requisite 5years,  and despite Mr Vassalo having  resided  in the  UK  for  over 50years,  no  right of permanent residence  could be relied upon.

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Home Office Attempt to Subvert the EEA Legislative Scheme Fails: EEA Permanent Residence Not Lost By Reason of Criminality or Imprisonment

The Home Office have recently been on a downward streak  in  the Court of Appeal  in terms of issues in relation  to EEA law and in particular EEA deportations.

Read my post regarding the recent judgments from the Court of Appeal on the issue in the cases of:

  • Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198
  • Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245
  • AA (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 1249

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Factors Relating to Deterrence and Public Revulsion of the Offender’s Conduct Generally Inapplicable to EEA National’s Subject to Deportation

The Home Office has within the  last year ( more  so  since the coming into force of the Immigration Act  2014) increasingly sought to put in place  measures to  deport as many foreign criminals as possible from the  UK but in so doing,  seem to be deliberately blurring   the line between the  relevant applicable law  and principles that apply when deporting a foreign national criminal  as opposed to an EEA national  criminal subject to deportation. There has,  for example,  been  a  deliberate mirroring  of  the Section 94B certification,  which  applies to non- EEA foreign national criminals    and the  Regulation 24AA Certification  that applies to  EEA nationals similarly  subject to deportation – the  intention  being to  deny deportees  an in – country right of appeal.   In  terms of relevant   litigation  in this regards for both categories of deportees, the Secretary has so far  been winning,  as in Kiarie, R (On the Application Of) and Another v The Secretary of State for the Home Department [2015] EWCA Civ 1020 in relation to section 94B and  as regards Regulation 24AA, of which  judgment was handed down by the Upper Tribunal on 26 November 2015,   following a judicial review claim. The judgment is not yet in the public domain.

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