Secretary of State for the Home Department v Borges

Factual and Procedural Background

This case concerns an appeal by the Secretary of State against a decision of the Upper Tribunal (Immigration and Asylum Chamber) ("the UT") which dismissed the Secretary of State's appeal from a decision of the First-tier Tribunal (Immigration and Asylum Chamber) ("the F-tT"). The F-tT had allowed the appeal of the Respondent, Mr Borges, against the Secretary of State's decision to make a deportation order dated 22 November 2022, which was prompted by Mr Borges's convictions and sentences for serious criminal offences.

Mr Borges arrived in the United Kingdom in 2002 as a family member of his father, a Portuguese citizen exercising Treaty rights. Originally an Indian citizen, Mr Borges renounced his Indian citizenship in 2014 and acquired Portuguese citizenship, becoming a citizen of an EU member state. The appeal raised two main issues: the level of protection Mr Borges had against removal, particularly whether he needed to have been an EU citizen throughout the ten-year residence period to benefit from the highest protection, and whether the F-tT erred in law in its approach to the test for removal.

Mr Borges's criminal history includes convictions for dangerous driving, robbery, burglary with intent to steal, aggravated burglary, and possession of a controlled drug, resulting in multiple custodial sentences. The Secretary of State issued warning letters and notices of intention to deport on several occasions. The F-tT found that Mr Borges had resided continuously in the UK for ten years, including periods before he became an EU citizen, and had significant integrative links with the UK despite imprisonment periods.

The UT considered the application of the relevant EU Directive and domestic Regulations, focusing on whether Mr Borges qualified for enhanced protection from deportation as an EU citizen with permanent residence and continuous residence of ten years. The UT upheld the F-tT's decision, concluding Mr Borges was entitled to enhanced protection and that there were no imperative grounds of public security justifying deportation.

The Secretary of State was granted leave to appeal to this court on two grounds: the interpretation of the Regulations regarding the ten-year residence requirement and the existence of imperative grounds of public security.

Legal Issues Presented

1. What level of protection against removal does the Respondent have, specifically whether the Respondent must have been a citizen of an EU member state throughout the ten-year continuous residence period to benefit from enhanced protection under Directive 2004/38/EC and the Immigration (European Economic Area) Regulations 2016?
2. If the Respondent qualifies for enhanced protection, did the First-tier Tribunal err in law in its approach to the test for removal, particularly regarding the application of imperative grounds of public security?

Arguments of the Parties

Appellant's Arguments (Secretary of State)

• The Respondent did not meet the requirement of continuous residence as an EU citizen for ten years, as he only became an EU citizen in 2014.
• The F-tT failed to apply the imperative grounds of public security test correctly and neglected to consider proportionality and relevant public interest matters properly.
• The F-tT did not adequately assess the present threat posed by the Respondent, focusing instead on his integration without regard to his criminal history and risk of reoffending.
• The UT erred in upholding the F-tT's approach, particularly in counting residence periods before the Respondent became an EU citizen and in re-making the decision on imperative grounds without identifying a material error of law.

Respondent's Arguments (Mr Borges)

• The Respondent argued that enhanced protection applies because he had resided in the UK for ten years and became an EU citizen during that period.
• The Directive and Regulations do not require that the Respondent be an EU citizen throughout the entire ten-year period to qualify for enhanced protection.
• The imperative grounds of public security test must be interpreted strictly, and no such grounds exist in this case.
• The F-tT and UT correctly applied the law and made appropriate findings regarding integration and residence continuity.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Onuekwere v Secretary of State for the Home Department (Case C-378/12) [2014] 1 WLR 2420	Periods of imprisonment do not count towards continuous residence and break continuity for permanent residence acquisition under the Directive.	The Secretary of State relied on this precedent to argue that time in prison breaks continuity of residence; the court considered it authoritative in assessing residence continuity.
FV (Italy) v Secretary of State for the Home Department (C-424/16) and B v Land-Baden Würtemburg (C-316/16) [2019] QB 126	Clarifies enhanced protection against expulsion depends on ten years continuous residence and integrative links; imprisonment may interrupt continuity but requires overall assessment.	The F-tT and UT applied these cases to hold that imprisonment does not automatically break continuity if integrative links remain strong.
Vomero v Secretary of State for the Home Department [2019] UKSC 35; [2019] 1 WLR 4729	Period of imprisonment prevents acquisition of permanent residence if it interrupts continuous residence; enhanced protection requires permanent residence.	The court distinguished the Respondent's case from Vomero, noting the Respondent had acquired permanent residence after becoming an EU citizen.
Secretary of State for Work and Pensions v Dias (Case C-325/09) [2012] All ER (EC) 199	Absences not exceeding two years do not cause loss of permanent residence; non-work periods must be assessed analogously.	Referenced to clarify application of absence rules related to residence continuity.
Hafeez v Secretary of State for the Home Department [2020] EWCA Civ 406; [2020] 1 WLR 1928	Periods in custody do not count positively towards ten years continuous residence for enhanced protection.	The UT relied on this case to confirm imprisonment periods do not count toward residence but do not necessarily reset the ten-year clock.
MA (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 1467	Upper Tribunal has no power to re-make decisions without identifying a material error of law and setting aside the lower tribunal’s decision.	The court held the UT erred by re-making the decision without setting aside the F-tT decision.
ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282	Confirms limits on UT's powers to re-make decisions absent material error of law.	Supported the conclusion that the UT erred in re-making the decision on imperative grounds without first setting aside the F-tT decision.
Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48	Reluctance to interfere with specialist tribunal assessments on factual matters and application of legal tests.	Mr Borges relied on this case to argue the court should defer to the F-tT’s factual assessments regarding imperative grounds of public security.
Swift v Robertson [2014] UKSC 50; [2014] 1 WLR 3438	National courts must interpret domestic legislation in light of the wording and purpose of the Directive it implements.	Used to support interpretative approach to the Directive and Regulations.

Court's Reasoning and Analysis

The court began by examining the interpretation of Directive 2004/38/EC and the Immigration (European Economic Area) Regulations 2016 as they apply to the Respondent’s case. It emphasized the fundamental distinction between EU citizens exercising Treaty rights and third country national family members who only hold derivative rights under the Directive.

The court rejected the Secretary of State’s argument that enhanced protection against removal requires the individual to have been an EU citizen throughout the entire ten-year residence period. It reasoned that neither Article 28.3 of the Directive nor Regulation 27(4) explicitly require continuous EU citizenship for the entire period. The court found that the enhanced protection applies if the person is an EU citizen at the date of the removal decision and has accumulated ten years of continuous residence under the relevant regulations, including periods as a family member before acquiring EU citizenship.

The court noted that the Directive’s recitals and provisions focus on protecting those who have exercised Treaty rights and become genuinely integrated. It highlighted that extending enhanced protection to someone who only recently became an EU citizen but had previously accumulated residence as a third country national family member would be an anomalous and adventitious outcome, inconsistent with the Directive’s scheme.

Regarding the second ground, the court found that the F-tT erred in law by failing to properly apply the imperative grounds of public security test and by not considering the relevant principles of proportionality and public interest as set out in the Regulations. The UT also erred by re-making the decision on imperative grounds without first identifying a material error of law and setting aside the F-tT’s decision. The court held that the UT lacked jurisdiction to re-make the decision absent such a legal error.

The court further clarified that while imprisonment periods do not count towards the ten years of continuous residence, they do not necessarily break the continuity if integrative links remain strong. However, the court expressed reservations about the F-tT’s factual findings regarding the Respondent’s integration, given the serious nature of his offences and sentences, but did not make a definitive ruling on that point as it was not challenged in the appeal.

Finally, the court dismissed the Respondent’s argument that the appeal was academic due to subsequent residence, confirming that the relevant period ends with the deportation decision.

Holding and Implications

The appeal is allowed on both grounds.

The court held that the Upper Tribunal erred in law by construing Regulation 27(4) and Article 28.3 of the Directive as allowing enhanced protection only if the individual was an EU citizen throughout the entire ten-year continuous residence period. Enhanced protection applies if the individual is an EU citizen at the date of the removal decision and has accumulated the requisite ten years of continuous residence under the Regulations, even if part of that residence was as a third country national family member.

The court also held that the Upper Tribunal erred by re-making the First-tier Tribunal’s decision on imperative grounds of public security without first identifying a material error of law and setting aside that decision. The case is remitted to the First-tier Tribunal to consider whether serious grounds of public policy or imperative grounds of public security justify removal, applying the correct legal tests.

The decision directly affects the parties by overturning the previous rulings and requiring reconsideration of the deportation decision under the correct legal framework. No new precedent beyond the application of existing EU and domestic law is established.