Introduction

The case of Hafeez v. Secretary of State for the Home Department ([2020] EWCA Civ 406) marks a significant precedent in the interpretation and application of the Immigration (European Economic Area) Regulations 2016 within the context of the UK judiciary. Ali Hafeez, a German national residing in the UK since either 2006 or 2007, faced deportation after being convicted of serious offences, including rape and robbery. This case delves into the nuanced criteria under which EEA nationals may be deported, particularly focusing on the levels of protection afforded to them and the impact of periods of imprisonment on their residency status.

The core issues revolved around whether Hafeez was entitled to "imperative grounds protection" based on ten years of residence and, given that entitlement, whether the decision to deport him was lawful. The Court of Appeal's judgment offers a comprehensive analysis of these aspects, deeply engaging with EU directives and prior case law.

Summary of the Judgment

The Court of Appeal ultimately dismissed Hafeez's appeal, upholding the decision to deport him. The court concluded that Hafeez did not qualify for the highest level of protection—imperative grounds protection—due to the interruption in his continuous residence caused by his three and a half years of imprisonment. Furthermore, the court affirmed that his deportation was justified on serious grounds of public policy and public security under Regulation 27(3) of the 2016 Regulations.

Despite initial allowances for determining whether periods of imprisonment could count towards continuous residence, the court firmly established that such periods do not contribute towards the ten-year requirement for imperative grounds protection. Consequently, Hafeez was only entitled to "basic protection," which sets a lower threshold for deportation.

Analysis

Precedents Cited

The judgment extensively references prior case law, notably:

• LG and CC (Italy) [2009] UKAIT 00024: Provided foundational guidelines on interpreting "imperative grounds of public security," emphasizing that the seriousness of past offences does not automatically translate to imperative grounds for deportation.
• MG (Portugal) v Secretary of State [2014] 1 WLR 2441: Addressed the impact of imprisonment on the continuity of residence, establishing that periods of incarceration generally interrupt continuous residency.
• FSHD v Franco Vomero (Italy) [2016] UKSC 49: Highlighted the ambiguity surrounding whether imprisonment periods count towards continuous residence, prompting the Court of Appeal to make definitive rulings in Hafeez's case.
• Tsakouridis (C-145/09) [2011] 2 CMLR 11: Further elaborated on the necessity of having a right of permanent residence as a prerequisite for imperative grounds protection.
• Hussein v Secretary of State [2020] EWCA Civ 156: Reinforced the interpretation that time in custody does not contribute positively towards the ten-year continuous residence requirement.

These precedents collectively informed the court's stance on the importance of continuous residence and the non-contribution of imprisonment periods in qualifying for higher levels of protection.

Legal Reasoning

The court's reasoning methodically addressed the statutory framework of the 2016 Regulations in conjunction with EU Directive 2004/38/EC. It delineated the three tiers of protection:

• Basic Protection: Applicable to EEA nationals with a right to reside, allowing deportation only on public policy or security grounds.
• Serious Grounds Protection: Granted to those with five years of continuous residence, adding safeguards against economic-based removals.
• Imperative Grounds Protection: The highest level, requiring ten years of continuous residence and only permitting deportation on imperative public security grounds.

Central to the judgment was the interpretation of "continuous residence" and whether periods of imprisonment disrupt this continuity. The court referenced the clear stance from previous case law, particularly the Supreme Court's ruling in Vomero, which maintains that imprisonment periods generally interrupt continuous residency. By applying this, the court determined that Hafeez's time in custody negated his eligibility for imperative grounds protection.

Furthermore, the court evaluated the proportionality of Hafeez's deportation, considering his integration into UK society, the severity of his offences, lack of remorse, and the potential risk he posed post-deportation. The decision underscored that deportation, even if on lower grounds, remained proportionate given the circumstances.

Impact

This judgment has profound implications for EEA nationals residing in the UK, especially those with criminal convictions leading to periods of imprisonment. Key impacts include:

• Clarification of Continuous Residence: Reinforces that imprisonment periods do not contribute towards the five or ten-year continuous residence requirements, tightening eligibility for higher protection levels.
• Application of Regulation 27(3) Over 27(4): In cases where imperative grounds protection is unattainable, authorities can rely on serious grounds protection to justify deportations.
• Judicial Discretion and Proportionality: Emphasizes the need for courts to balance individual circumstances with public security, ensuring deportations are proportionate responses to the assessed risk.
• Consistency in Immigration Law: Provides a consistent judicial approach in interpreting the intersection of criminal conduct and immigration status, potentially limiting avenues for appeal based on residency continuity.

Legal practitioners must now navigate these clarified parameters when advising EEA nationals facing deportation, ensuring a comprehensive understanding of how criminal convictions and imprisonment impact immigration protections.

Complex Concepts Simplified

Conclusion

The Hafeez judgment serves as a critical reminder of the stringent standards applied when determining the deportation of EEA nationals from the UK. By reaffirming that periods of imprisonment disrupt continuous residence, the court closed a significant loophole, ensuring that only those genuinely eligible for the highest levels of protection can resist deportation on imperative grounds.

Additionally, the case underscores the judiciary's commitment to balancing individual rights with public security imperatives. The clear delineation between different levels of protection and the emphasis on proportionality provide a structured framework for future cases, promoting consistency and fairness in immigration law applications.

For legal practitioners, policymakers, and affected individuals, this judgment offers essential guidance on navigating the complexities of EEA immigration regulations, particularly in the interplay between criminal conduct and immigration status.