Hussein v Secretary of State for the Home Department  EWCA Civ 156 (13 February 2020): In a complex deportation appeal against a deportation order based on the deportee's status as a permanent resident, the Court of Appeal was not convinced that in dismissing Mr Ismail Hussein's appeal, FTTJ Cassel had applied the legal test set out in regulation 21(3) of the Immigration (European Economic Area) Regulations 2006 which required "serious grounds of public policy or public security" for deporting him. Mr Hussein was born in Somalia in 1984 and he joined his father in the Netherlands in 1994 where they were naturalised as Dutch citizens. They then moved to the UK, where Mr Hussein claimed continuous residence since 1998. He further claimed substantial family connections in the UK with his 10-year-old child by his ex-wife, his second wife and two stepchildren, and his father and other relatives. Following convictions for a spate of criminal offences since 2000 (including robbery, supply of drugs and possession of offensive weapons), which led to three periods in custody, a deportation order was made against him in 2016 under regulation 19(3)(b) of the 2006 Regulations. The Home Office disagreed that Mr Hussein had resided in the UK for 10 years whereby his deportation would have had to be justified on "imperative grounds of public security" under regulation 21(4). But it agreed that he had shown five years' residence and as a permanent resident was accordingly entitled to protection under regulation 21(3).
The decision-maker concluded that the threshold of serious grounds of public policy or public security had been satisfied on the evidence. UTJ Rimington dismissed his appeal against FTTJ Cassel's decision. Mr Hussein submitted that FTTJ Cassel had applied the wrong test for the establishment of 10 years' residence and had failed to carry out an "overall assessment" of his integrative links. He also submitted that although the FTTJ had correctly recognised that he had acquired permanent residence under regulation 15(1)(a), he failed to apply the appropriate test for deportation under regulation 21(3) and incorrectly framed it as whether his conduct represented "a present threat to society" rather than whether there were "serious grounds of public policy or public security" for deporting him in light of his criminality. The Court of Appeal allowed the appeal in part on the second ground connected to permanent residence and the test of serious grounds of public policy or public security. It dismissed the appeal on the first ground arising out of 10 years' residence and the FTTJ Cassel's failure to carry out an "overall assessment" of his integrative links.
It was undisputed that FTTJ Cassel had been right to conclude that the 2006 Regulations applied rather than the Immigration (European Economic Area) Regulations 2016. There was also no suggestion by the parties that the UK's withdrawal from the EU and the EEA on 31 January 2020 made any difference to the outcome of this appeal.
The Court of Appeal
Lewison, Bean and Rose LJJ first examined the CJEU jurisprudence prior to ruling on the two grounds advanced by Mr Hussein. Notably, to acquire a permanent right of residence under Regulation 15, and thus obtain the protection of Regulation 21(3), a person needs to be resident in the host member state for a continuous period of five years. These need not be the five years immediately before the expulsion decision. In MG (Portugal) (C-400/12, EU:C:2014:9), a case about a child abusing mother, the CJEU held that under regulation 21(4)(b) the10-year period required for acquiring enhanced protection must be calculated by counting back from the date of the expulsion decision.
Bean LJ observed that in Onuekwere (C-378/12, EU:C:2014:13), a case decided about a Nigerian third country national offender (the leading authority on the significance of imprisonment in relation to the acquisition of permanent residence), the CJEU held that in calculating five years residence under article 16(1) of Directive 2004/38/EC, periods before and after time spent in custody cannot be aggregated, i.e. the clock is reset to zero. The position is more complicated for the 10-year period under article 28(3)(a) in relation to which the CJEU held in MG (Portugal) that if imprisonment occurs during the 10 years prior to the expulsion decision, this will "in principle" interrupt continuity of residence and that an "overall assessment" is required.
In Franco Vomero  1 All ER 999 the Supreme Court made a reference to the CJEU when the issue resurfaced whether time in custody can be counted towards a person's 10 year residence. The CJEU held that it was unnecessary to answer the question in the light of its conclusion on a different question and the uncertainty continued. Bean LJ observed that in Tsakouridis (C-145/09, EU:C:2010:708) the CJEU had held that the question is whether the person's "integrative links" within the host member state have been broken by the interruption. Irrespective of the lack of clarity about time spent in custody being countable towards a person's ten years residence, he held that:
18. However, what does emerge clearly from MG (Portugal) is that whether or not a period of imprisonment can count towards the ten years, an individual claiming enhanced protection who has served time in custody must prove both that he had ten years' continuous residence ending with the date of the decision on a mathematical basis and that he was sufficiently integrated within the host state during that ten year period. After all, if the calculation were simply an arithmetical exercise the phrase "overall assessment" would be inappropriate.
Referring to Tsakouridis in MG (Portugal) the CJEU held that an overall assessment must be made of that person's situation on each occasion at the precise time when the question of expulsion arises. This approach was upheld in B and Vomero (C-316/16 and C-424/16, EU:C:2018:256, discussed here and here), where the CJEU explained at para 70 the need to carry out an overall assessment of the situation of that person at the precise time when the question of expulsion arises. And in the context of that overall assessment, periods of imprisonment must be taken into consideration together with all the relevant factors in each individual case, including, the circumstance that the person concerned resided in the host member state for the 10 years preceding his imprisonment.
In Viscu  EWCA Civ 1052, which was decided after the FTT and UT had decided the present case, Flaux LJ summarised the principles established by the CJEU in relation to custodial sentences as including (i) that the degree of protection against expulsion to which an EU citizen resident in another member state is entitled under the Directive is dependent upon the degree of integration of that individual in the member state, (ii) that, generally, a custodial sentence is indicative of a rejection of societal values and thus of a severing of integrative links with the member state, but (iii) that the extent to which there is such a severing of integrative links will depend upon an overall assessment of the individual's situation at the time of the expulsion decision."
Ground 1: 10 years' continuous residence
The Home Secretary argued that any disagreement with the FTTJ Cassel's assessment of Mr Hussein's amounted to a disagreement with his factual findings and that the judge did assess all the relevant factors in making an "overall assessment". Bean LJ found force in Mr Hussein's argument that the FTT's findings were not entirely clear on the question of whether he had in fact been continuously resident in the UK for 10 years prior to the deportation decision. However, even if it is right that he qualified on the mathematics of article 28(3)(a), that still left the vital question of assessing whether his integrative links to the UK as his host state were broken by his repeated offending. His Lordship held:
38. On this issue, I consider that the conclusions of the FTT Judge were ones which he was fully entitled to reach. He rightly accepted that the criminal convictions and periods of imprisonment do not automatically disqualify an individual from enhanced protection, but they do have a negative effect. As Flaux LJ said in Viscu, a custodial sentence is in general indicative of a rejection of societal values and thus of a severing of integrative links with the host state. Repeated offending attracting a series of custodial sentences of more than trivial length is even more indicative of the same thing. These propositions are not inconsistent with the principle that an EEA national cannot be deported on the basis of criminal offending simply to deter others.
The court dismissed the appeal on the first ground. The question of whether periods in custody break the integrative links between the offender and the host member state was a much narrower question than the question whether there are imperative grounds of public security, or serious grounds of public policy or security, justifying deportation: let alone the question of whether deportation can be challenged on article 8 grounds.
The wording used by the CJEU in para 83 of Vomero showed that the aspects of the case that must be taken into account in deciding whether, notwithstanding the detention, the integrative links with the host member state have not been broken include "the strength of the integrative links forged with the host Member State before the detention of the person concerned, the nature of the offence that resulted in the period of detention imposed, the circumstances in which that the offence was committed and the conduct of the person concerned throughout the period of detention." Bean LJ noted that except for the first, all these listed factors concentrate on the offending and the custodial sentence. Whether the offender was visited regularly or at all while in custody seemed to be of little if any importance in the overall assessment.
Ground 2: Serious grounds of public policy or public security
While the FTT correctly recognised that Mr Hussein had acquired permanent residence under regulation 15(1)(a), on the issue of the test under regulation 21(3) FTTJ Cassel had failed to set out and apply the correct test for deportation. He had wrongly framed the test as whether Mr Hussein's conduct "represents a present threat to society" and concluded that Mr Hussein "poses such a threat". The real test concerned serious grounds of public policy or public security for removing him as a result of his conduct. Thereafter, UTJ Rimington said that FTTJ Cassel must have the "serious grounds" test in mind because he did consider Mr Hussein's rehabilitation (an exercise which would be undertaken when applying the serious grounds test). UTJ Rimington's interpretation was flawed as the FTT itself stated that "the prospects of rehabilitation are relevant even if the offender does not have a permanent right of residence". This led the court to hold:
42. It is unfortunately not clear whether the FTT Judge considered and applied the "serious grounds of public policy or public security" test required by Regulation 21(3). The Regulation itself is set out at paragraph  of the judgment, which also notes the Respondent's contention that the Appellant's continued presence in the UK represents a "genuine, present and sufficiently serious threat to the interest of public policy that his deportation is justified". But after that the "serious grounds of public policy or public security" test disappears from view.
FTTJ Cassel said that he had to consider the case in accordance with Regulation 21 "and in particular whether the decision is proportionate". FTTJ Cassel referred to Essa  EWCA Civ 1718 and the requirement for any EEA national's deportation, irrespective of whether they possessed permanent residence, that the claimant must represent "a present threat to public policy". He found that it is likely that Mr Hussein will persist in offending if allowed to remain in the UK "and that therefore his conduct represents a present threat to society". He found that there is nothing to suggest that removal from the UK would be disproportionate and concluded "accordingly the precondition for his removal, regulation 19(3), is satisfied. The Respondent has satisfied the test of proportionality on the balance of probabilities." In view of these points, especially the last passage, Bean LJ held:
43. … I cannot be satisfied that the FTT Judge, in rejecting Mr Hussein's appeal based on his status as a permanent resident, was applying the "serious grounds of public policy or public security" test laid down by Regulation 21(3) of the 2006 Regulations.
While the Court of Appeal had the power to remake the decision itself it referred to the CJEU's decision in B (C-316/16) whereby the starting point is that it is for the authority which initially adopts the expulsion decision (in this case, the Home office) to make the assessment of whether there are grounds of public policy or public security justifying the expulsion at the time it adopts that decision. The CJEU's view was that does not preclude the possibility that, where the actual enforcement of that decision is delayed for a certain period of time, it may be necessary to carry out a fresh, updated assessment of whether the appropriate test (of serious grounds of public policy or public security in Mr Hussein's case) remains applicable. Lord Reed had highlighted that point in Vomero  UKSC 35, discussed here, where the court remitted the case to the UT to be reconsidered. While the delay in the present case was four years, unlike the 12 year delay in Vomero, it would be wrong to deprive Mr Hussein the chance of arguing before the UT that the grounds for deportation required in his case are no longer applicable. The court therefore allowed the appeal on Ground 2 and Bean LJ remitted the case to the UT for a new judge to reach a decision on whether Mr Hussein's removal is still justifiable on serious grounds of public policy or public security under regulation 21(3).
Mr Hussein is extremely fortunate to enjoy the system of protection conferred by Directive 2004/38/EC. He is very lucky to have succeeding in the Court of Appeal after losing twice in the tribunals. As is often the situation in deportation appeals, FTTJ Cassel and UTJ Rimington remained quite unsympathetic with Mr Hussein because of his criminality.
The issue of the deportation of foreign criminals is extremely sensitive. It is an issue that underpins the political message of every major political party in the UK because being soft on the deportation of foreign criminals is very unfashionable in British culture/society.
As The UK's Points-Based Immigration System: Policy Statement explains, after the end of the transition period, the UK will have a single, consistent and firmer approach to criminality which will apply to everyone who comes to the UK irrespective of where they are from. The various thresholds for criminality presently applicable to EU citizens will be removed and they will be subject to the stricter and more specific rules and the Home Office laments that "the application of the current EU public policy test is less certain and predictable in practice than we would like."