“Ten Years as an EU Citizen”: The New Threshold for Enhanced Protection from Deportation
Commentary on Secretary of State for the Home Department v Borges [2025] EWCA Civ 784

I. Introduction

The Court of Appeal’s decision in Secretary of State for the Home Department v Borges is the first post-Brexit appellate authority to rule squarely on what period of residence counts towards the highest level of deportation protection enjoyed by European Union (“EU”) citizens under Article 28(3)(a) of Directive 2004/38/EC (“the Citizens’ Directive”) and its domestic counterpart, regulation 27(4) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”).

The appellant, the Secretary of State for the Home Department (“SSHD”), challenged two Upper Tribunal (“UT”) holdings: (1) that Mr Borges—an Indian-born national who obtained Portuguese citizenship midway through his UK residence—qualified for “enhanced protection” because his total physical presence in the UK exceeded ten years; and (2) that, even if enhanced protection applied, there were no “imperative grounds of public security” to justify his deportation following serious criminal offending.

Lady Justice Elisabeth Laing (with Snowden LJ and Baker LJ concurring) allowed the appeal. In doing so, the Court announces two key propositions:

• New Rule: A person can claim enhanced protection only if they have been an EU citizen for the whole of the ten-year residence period immediately preceding the deportation decision. Residence accrued solely as a third-country national family member cannot be aggregated.
• Procedural Principle: The UT may re-make a deportation decision only after identifying and setting aside a material error of law in the First-tier Tribunal (“FtT”); it cannot bypass that step and substitute its own evaluation.

II. Case Background

Timeline at a glance

• 2002–2014 – Borges, an Indian citizen, lives in UK as a dependent of his Portuguese-national father.
• 2008–2011 – Series of criminal convictions; initial deportation warning.
• 2014 – Renounces Indian citizenship; acquires Portuguese nationality (thereby becoming an EU citizen).
• 2019 – Convicted of aggravated burglary; sentenced to six years’ imprisonment; SSHD serves notice of intention to deport.
• 22 Nov 2022 – SSHD makes deportation order.
• FtT 2023 – Allows Borges’ appeal, holding he benefits from enhanced protection; finds no “imperative grounds”.
• UT 2024 – Dismisses SSHD’s appeal; agrees with FtT; refuses permission to appeal.
• Court of Appeal 2025 – Reverses UT; clarifies law.

III. Summary of the Judgment

1. Ground 1 – Eligibility for Enhanced Protection
   The Court held that Article 28(3)(a) and regulation 27(4) implicitly require the individual to have been an EU citizen throughout the relevant ten-year period. Periods spent only as a third-country national family member do not count.
2. Ground 2 – Imperative Grounds Analysis
   Because Borges did not qualify for enhanced protection, the FtT should have applied only the “serious grounds” test (Article 28(2)). The FtT’s failure, and the UT’s decision to conduct its own imperative-grounds assessment without setting aside the FtT decision, were both legal errors. The matter is remitted to the FtT to reconsider deportation under the correct (lower) threshold.
3. Respondent’s Notice dismissed. Borges’ assertion that the issue was academic (as further time had elapsed) failed because the material date is fixed at the deportation decision.

IV. In-Depth Analysis

1. Precedents Cited and Their Influence

• Onuekwere (C-378/12) – Established that imprisonment interrupts residence continuity for third-country family members seeking permanent residence. Cited to show that derivative residence is fragile.
• B v Land Baden-Württemberg (C-316/16) & FV (Italy) (C-424/16) – Confirmed that periods in prison do not automatically extinguish the ten-year period but require an “overall assessment” of integration. Court distinguished these as concerning persons already EU citizens.
• Vomero/FV [2019] UKSC 35 – Supreme Court held enhanced protection is available only to those who already possess a right of permanent residence under Article 16. The Court of Appeal extrapolated that such permanent residence must itself have been earned as an EU citizen.
• Hafeez [2020] EWCA Civ 406 – Confirmed that prison time doesn’t count positively towards the ten years for enhanced protection. Reinforced the arithmetic of residence calculation.
• Domestic procedure cases: MA (Iraq) and ASO (Iraq) – Re-affirmed UT’s limited power to re-make decisions absent a material error of law finding.

2. Court’s Legal Reasoning

A. Statutory Interpretation
Even though Article 28(3)(a) and regulation 27(4) omit the express words “as an EU citizen”, the Court treated this as implicit because:

• The Directive consistently distinguishes three groups: (i) EU citizens; (ii) their EU-citizen family members; (iii) third-country national family members.
• Recitals 23–24 tie added protection to those who, by exercising Treaty rights, have become “genuinely integrated”; derivative beneficiaries (e.g. third-country family members) do not exercise such rights.
• Allowing derivative residence to count would create “adventitious” outcomes—e.g. naturalisation the day before a deportation decision conferring maximum protection—which Parliament and the EU legislature cannot have intended.

B. Cumulative Protection Scheme
Protection from removal is designed to build incrementally:

1. Basic proportionality test (Art 28(1)).
2. “Serious grounds” once permanent residence is held (Art 28(2)).
3. “Imperative grounds” only after ten years as an EU citizen (Art 28(3)(a)) or for minors (Art 28(3)(b)).

To jump straight from derivative status to the top tier would bypass the incremental model.

C. Procedure
The UT mis-stepped by evaluating “imperative grounds” without first finding a material error of law and formally setting aside the FtT decision. That contravenes the two-stage process mandated by the Tribunals, Courts and Enforcement Act 2007 and confirmed in MA (Iraq).

3. Anticipated Impact

• Removal Litigation: Non-EU family members who subsequently naturalise can no longer aggregate their pre-citizenship residence to achieve enhanced protection. Many pending legacy cases will now be filtered to the “serious grounds” test.
• Naturalisation Strategy: Applicants may hasten naturalisation to begin the ten-year clock sooner, but cannot retrospectively benefit.
• Tribunal Practice: UT must scrupulously apply its appellate jurisdiction—identify error, set aside, then choose between remittal or re-making—before engaging factual merits.
• Post-Brexit EEA regime: Although the 2016 Regulations have largely been revoked, they continue to govern “grace-period” conduct pre-IP completion day. Borges clarifies interpretation for that dwindling cohort.

V. Complex Concepts Simplified

• Union Citizen vs. Family Member – An EU citizen holds “primary” rights directly from the EU Treaties. Their non-EU relatives enjoy only “derivative” rights that exist because of the citizen’s status and disappear if the family connection ends.
• Permanent Residence – A status earned by five years’ continuous lawful residence (as an EU citizen or qualifying family member) that secures stronger deportation safeguards.
• Levels of Protection Against Removal
  • Normal – Basic proportionality test.
  • Serious Grounds – Applies once permanent residence obtained (Art 28(2)).
  • Imperative Grounds – Highest threshold; requires 10 years residence as an EU citizen (Art 28(3)(a)) or minor’s best interests (Art 28(3)(b)).
• Continuity of Residence – Periods in prison stop the residence clock counting positively and may break continuity altogether, depending on the individual’s integrative links.
• Overall Assessment – Courts examine personal conduct, length of residence, family ties, rehabilitation, and the threat posed to society to decide whether prison has “broken” integration.

VI. Conclusion

Borges cements a decisive rule: enhanced protection under Article 28(3)(a)/regulation 27(4) is strictly reserved for those who have spent the entire preceding decade in the UK as EU citizens. The Court’s insistence on respecting the Directive’s cumulative protection ladder prevents derivative-right holders from leap-frogging to the top tier of deportation immunity by last-minute naturalisation.

Procedurally, the judgment is a reminder that appellate tribunals must not short-circuit the statutory process: before re-making a decision, they must identify and nullify the lower tribunal’s legal error. Going forward, tribunals and practitioners must recalibrate arguments and evidence around the “serious grounds” test for individuals whose EU citizenship is of recent origin, while the rare cases that genuinely meet the ten-year EU-citizen mark will continue to receive the Directive’s highest shield.

© 2025 – Prepared for educational purposes. Not legal advice.