Secretary of State for the Home Department v Myron Francisco Joseph Borges [2025] EWCA Civ 784

[2025] EWCA Civ 784Case No CA-2024-001040
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Mr Justice Henshaw
Upper Tribunal Judge Gill
UI-2023-003927
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 27 June 2025
Before
LORD JUSTICE BAKERLADY JUSTICE ELISABETH LAINGLORD JUSTICE SNOWDEN
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTAppellantMYRON FRANCISCO JOSEPH BORGESRespondent
Zane Malik KC (instructed by The Treasury Solicitor) for AppellantShahadoth Karim and Michael West (instructed by Gordon and Thompson Solicitors) for RespondentHearing Hearing date: 9 April 2025
Approved JudgmentThis judgment was handed down remotely at 10.00 am on 27 June 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................

Introduction

[1]This is an appeal by the Secretary of State from a decision of the Upper Tribunal (Immigration and Asylum Chamber) (‘the UT’) (‘determination 3’). In determination 3 the UT dismissed the Secretary of State’s appeal from a decision of the First-tier Tribunal (Immigration and Asylum Chamber) (‘the F-tT’) (‘determination 2’). The F-tT allowed the appeal of the Respondent to this appeal, Mr Borges, from a decision of the Secretary of State to make a deportation order dated 22 November 2022 (‘the Decision’). The Decision was prompted by Mr Borges’s conviction, and sentences for, serious criminal offences, as I will explain.[2]When Mr Borges came to the United Kingdom in 2002 he was not a citizen of a member state of the European Union (‘the EU’). He was a citizen of India, having been born in Goa, which is a former colony of Portugal. He came to the United Kingdom as a ‘family member’ of his father, who was a Portuguese citizen exercising Treaty rights in the United Kingdom. Mr Borges renounced his Indian citizenship at some point in 2014, and acquired Portuguese citizenship. He then became a citizen of an EU member state.[3]There are two issues in this appeal, reflected in the Secretary of State’s two grounds of appeal. The first issue depends on the correct construction of Directive 2004/38/EC (‘the Directive’) on the right of citizens of the EU and their family members to move and reside freely within the member states and of the domestic legislation which implements the Directive, the Immigration (European Economic Area) Regulations 2016 (2016 SI No 1052) (‘the Regulations’), as they now apply to a case like this: see paragraphs 89 and 90, below. 1. What level of protection does Mr Borges have against removal? There is no dispute that Mr Borges had resided in the United Kingdom throughout the ten years before the Decision. The Secretary of State’s case is that in order to benefit from the highest level of protection against removal, Mr Borges had to be a citizen of an EU member state throughout that period. Mr Borges’s case is he has that that protection because(i) he had resided in the UK for that period and(ii) he had become a citizen of an EU member state during that period. If his argument is right, a person who has resided in the United Kingdom for that period as a non-EU citizen, but who becomes a citizen of an EU member state on the day before a removal decision, would benefit from that protection. 2. If Mr Borges succeeds on the first issue, did the F-tT err in law in its approach to the test for removal which did apply in his case?[4]I should make clear that the arguments before the F-tT, the Secretary of State’s grounds of appeal to the UT and the Secretary of State’s argument in the UT mean that there are at least two potentially relevant issues which do not arise on this appeal. This judgment should not be taken as implying that two features, in particular, of the F-tT’s approach were correct. I say more about those caveats in paragraphs 123-129, below.[5]On this appeal, the Secretary of State was represented by Mr Malik KC. Mr Karim and Mr West represented Mr Borges. I thank counsel for their concise written and oral submissions.

The facts

[6]Mr Borges was born in India in August 1988. He was an Indian national by birth. He arrived in the United Kingdom in 2002 (when he was 14) as a family member of his father. He was issued with a residence card on 4 September 2002 until 15 October 2006. He was issued with a renewed residence card on 13 September 2006 until 13 December 2011, when he would have been 23 years old. He was issued with a permanent residence card on 20 September 2007 which was valid until 2017.[7]He was convicted on 10 July 2008 (when he was 19) of dangerous driving, using a vehicle without insurance and handling stolen goods. He was sentenced to 30 weeks’ custody in a Youth Offenders’ Institution. He was disqualified from driving for 5 years. The Secretary of State considered deporting him, but instead issued him with a warning letter telling him that if he committed another offence he might be deported. In October 2010 he was convicted of driving while disqualified and without insurance. He was given a community order.[8]He was convicted on 4 February 2011 of two counts of robbery. He was sentenced to 21 months’ imprisonment. The Secretary of State served him with notice of an intention to make a deportation order against him, and then decided to deport him on 6 December 2011.[9]Mr Borges appealed against that decision. The F-tT allowed his appeal on 16 June 2012 in determination 1. The F-tT recorded that Mr Borges had committed two robberies within eight days at a railway station. He had targeted younger more vulnerable children and had taken their mobile phones. He had committed the first offence three days after receiving a community order (see paragraph 7, above). He had committed the offences to pay his drug debts. The F-tT rejected his attempts to minimise his culpability for the current and previous offences. It noted that he had deceived his parents about his GCSE results, and had tried to deceive the F-tT about them as well. The F-tT said that Mr Borges ‘is aware that any further offences are likely to be taken as an indication that he has no respect for the laws of the United Kingdom and that a future tribunal may well make a contrary assessment as regards the threat he would pose’. It is clear from the sentencing remarks for the later index offences (which were quoted in the Decision), that in both robberies, Mr Borges had indicated or shown ‘a handle of an item’ while robbing the victim. In one case, he had said ‘Hand it over or I will ice [ie stab] you’.[10]The Secretary of State issued another warning letter to Mr Borges on 23 August 2012, in similar terms to the first letter (see paragraph 7, above).[11]Mr Borges surrendered his Indian passport in 2014 and obtained a Portuguese passport.[12]He was convicted of burglary with intent to steal, aggravated burglary and possession of a controlled drug of Class B on 3 June 2019 and sentenced to 6 years’ imprisonment. Mr Borges committed those offences on 3 May 2019. The Decision describes those offences: see further, paragraph 67, below.[13]The Secretary of State again served Mr Borges with notice of intention to make a deportation order on 27 November 2019. He replied on 7 March 2020. He also applied for leave to remain under the EU Settlement Scheme. The Secretary of State refused that application on suitability grounds. Mr Borges was released from prison in October 2022. The Secretary of State made the Decision on 22 November 2022.[14]The Secretary of State considered in the Decision whether Mr Borges’s deportation was justified on serious grounds of public policy or public security. The Secretary of State accepted that Mr Borges was exercising Treaty Rights as a Portuguese national continuously between 2014 and 2019. The Secretary of State therefore accepted that he had obtained a permanent right of residence under the EEA Regulations.[15]The Secretary of State did not accept that Mr Borges had been continuously resident in the United Kingdom for ten years. Time spent in prison did not count towards any period of continuous residence and broke his continuous period of residence. The Secretary of State referred to the decision in Onuekwere v Secretary of State for the Home Department (Case C-378/12) [2014] 1 WLR 2420 (‘Onuekwere’).[16]The Secretary of State also referred to article 28 of the Directive and to regulation 27(4)(a) of the Regulations. The highest level of protection against deportation is only available to EU citizens who have resided continuously in the territory of a member state for the previous 10 years. I say more about the Decision in paragraphs 64-71, below.

The Directive

[17]The Directive provides, in general terms, for EU nationals and members of their families, rights of movement between, and residence in, member states of which they are not nationals. Recital (1) says that ‘Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the member states’, subject to limitations and conditions laid down in the Treaty establishing the European Community. Free movement of people is one of ‘the fundamental freedoms of the internal market’ (recital (2)). Recital (3) says that ‘Union citizenship should be the fundamental status of nationals of the member states’ when they exercise their right of free movement and residence. It was therefore necessary to codify and review existing EU instruments which deal with distinct categories of people in order to ‘simplify and strengthen the right of free movement and residence’ (and see recital (4)). The right of all citizens of EU member states to ‘move and reside freely within the territory of Member States, should, if it is to be exercised under objective conditions of freedom and dignity, also be granted to’ the members of their families ‘irrespective of their nationality’ (recital (5)). Recitals (7) and (8) refer to ‘the formalities connected with the free movement of Union citizens’ within the territory of member states, and steps to ‘facilitate the free movement of’ family members who are nationals of third countries.[18]Recitals (9) and (10) refer to an initial right of residence for Union citizens for three months without any formalities, to be followed by a period during which residence is subject to conditions, ‘without prejudice to a more favourable treatment applicable to job-seekers recognised by the caselaw of the Court of Justice’. The ‘fundamental and personal right of residence’ in another member state ‘is conferred directly on Union citizens by the Treaty and is not dependent on their having fulfilled administrative procedures’ (recital (11)). A requirement to have a residence card should be limited to ‘family members of Union citizens’ who are third country nationals for periods of residence longer than three months (recital (13)). If the EU national dies, or there is a divorce, members of families should be ‘legally safeguarded’. With various qualifications, members of a family who are then living in the territory of the ‘host’ member state should ‘retain their right of residence exclusively on a personal basis’ (recital (15)).[19]Recital (17) says ‘Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host or EU nationals and members of their families who have lived in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure’.[20]‘In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions’ (recital (18)). By contrast, recitals (19)-(22) refer to ‘Union citizens’ and to their family members. Recital (22) acknowledges that the Treaty allows restrictions to be put on the rights of free movement and residence on such grounds as public policy. To ensure ‘a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their family members may be … expelled’, it was necessary for the Directive to replace Council Directive 64/221/EC.[21]Recital (23) acknowledges, further, that expulsion of Union citizens and their family members on such grounds ‘is a measure which can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin’.[22]Recital 24 then provides, ‘Accordingly, the greater the degree of integration of the Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. In addition, such exceptional circumstances should also apply to an expulsion measure taken against minors, in order to protect their links with their family…’.[23]Article 2.1 defines ‘Union citizen’ as ‘any person having the nationality of a Member State’. Article 2.2.a defines ‘family member’ as including ‘direct descendants who are under the age of 21 or are dependants and those of spouse or partner as defined in point b)’. Article 2.3 defines ‘host Member State’ as the member state to which a national of an EU member state moves in order to exercise his/her right of free movement and residence. Article 3 is headed ‘Beneficiaries’. The Directive applies to all EU nationals ‘who move to or reside in’ a member state ‘other than that of which they are a national, and to their family members …who accompany or join them’.[24]Article 5 is headed ‘Right of entry’. Member states are required to grant Union citizens leave to enter their territory with a valid identity card or passport, and to grant leave to enter to family members who are nationals of third countries (who have a valid passport). They may not impose requirements for entry visas or similar formalities on Union citizens (article 5(1)). Visa restrictions may in some circumstances be put on third country national family members (article 5 (2)).[25]Chapter III is headed 'Right of Residence’. Article6.1 provides for an initial right of residence in the host state for EU nationals for up to three months without conditions or formalities. Family members who are third country nationals, who have a valid passport and who accompany or join such EU nationals also have that right (article6.2 ).[26]Article7.1 provides that EU nationals continue to have a right of residence for longer than three months if they are a worker or self-employed person in the host member state, or, in short, can support themselves, or are EU nationals who are family members of a person who satisfies the conditions in article 7.1. Article7.2 provides that that right of residence extends to third country national members of the family of an EU national ‘accompanying or joining’ the EU national in the host member state, provided that the EU national satisfies the conditions in article 7.1.[27]Article 7.3 makes express provision for four specified circumstances in which an EU national who ‘is no longer a worker or self-employed person shall retain the status of worker or self-employed person for the purposes of’ article 7.1.a. They are a temporary inability to work through illness or accident, being ‘in duly recorded involuntary unemployment’ in the circumstances described in article 7.3.b and c, and embarking on vocational training. Those circumstances do not include imprisonment. Article 7.3 does not apply to a third country national.[28]Articles 8 and 9 provide separately for the formalities to be met by Union citizens for periods of residence of longer than three months and for their family members who are Union citizens (article 8 and article 8.5) and for family members who are third country nationals (articles 9 and 10).[29]Article 12 is headed ‘Retention of the right of residence by family members in the event of death or departure’ of the EU national. Article12.1 deals with the position of EU nationals who are family members of an EU national if he dies, or leaves the host member state. By contrast with article 12.1, article12.2 provides no protection for third country nationals if the EU citizen leaves the host member state, unless the third country national has actual custody of the EU national’s children (article12.3 ). Article 12.2 gives protection to third country family members of a citizen of the Union if he or she dies, if they have been living with him or her for at least one year before his or her death. Article 13 enables some third country nationals to retain their right of residence on their divorce from a Union citizen. In both cases, the person concerned must meet certain conditions, such as being a worker or self-employed person, until they acquire a right of permanent residence (article 12.2 and 13.2). Such family members shall retain their right of residence ‘exclusively on a personal basis’ (ibid).[30]Article 14 is headed ‘Retention of the right of residence’. Article 14.2 provides that EU nationals and their family members are to have the right of residence provided for in articles 7, 12 and 13 for as long as they meet the relevant conditions. Article 14.4 provides that ‘an expulsion measure may in no case be adopted against Union citizenship or their family members if the Union citizens’ are workers or self-employed, or jobseekers (without prejudice to Chapter VI).[31]Chapter IV is headed ‘Right of Permanent Residence’. Article 16 is headed ‘General rule for Union citizens and their family members’. Article 16.1 gives such a right to Union citizens who have ‘resided legally for a continuous period of five years’ in the host member state. In other words, it applies to Union citizens and to their family members who are also Union citizens, whose rights come from the Treaty. That right is not subject to the conditions in Chapter III. By paragraph 16.2, article 16.1 also applies to family members of Union citizens who are third country nationals and who have ‘legally resided’ with the Union citizen in the host member state continuously for five years. Article 16.3 provides that various types of absence which are not to affect continuity of residence. Once that right has been acquired, it can only be lost through an absence from the host member state for more than two consecutive years (article 16.4).[32]Article 17.1 provides for several exemptions from the five-year requirement. Paragraph 2 also provides that ‘periods of involuntary unemployment duly recorded by the relevant employment office, periods not worked for reasons not of the person's own making and absences from work or cessation of work due to illness or accident shall be regarded as periods of employment’. There is no reference to periods of imprisonment. By article 18, without prejudice to article 17, the family members of an EU citizen to whom articles 12.2 and 13.2 apply and who satisfy the conditions in those provisions, acquire the right of permanent residence after ‘residing legally’ for five consecutive years in the host member state.[33]Article 23 gives, ‘Irrespective of nationality’ the family members of a Union citizen who has a right of residence or permanent residence in a member state a right to take up employment or self-employment there. Article 24.1 entitles Union citizens living in the territory of a host member state ‘on the basis of this Directive’ equal treatment with the nationals of that state. That right is extended to family members who are third country nationals who have a right of residence or permanent residence.[34]Chapter VI contains restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health, including general principles (article 27), protection against expulsion (article 28), provision about restrictions on movement for public health reasons (article 29) and procedural provisions (articles 30-33).[35]Article 27 lists general principles. Article27.1 gives member states the right to restrict the freedom of movement and residence of ‘Union citizens and their family members, irrespective of nationality’ on various public policy grounds. Such measures must comply with various principles, including the principle of proportionality. The personal conduct of the individual concerned must ‘represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society’ (article27.2 ).[36]The dispute in this case concerns Article 28. It is headed ‘Protection against expulsion’. Article28.1 lists factors which a member state must take into account before deciding to expel a person. They include the length of residence and social and cultural integration of the person concerned into the host member state and the extent of any links with their country of origin. Article28.2 provides that ‘The host Member State may not take an expulsion decision against Union citizens or their family members, ‘irrespective of nationality’, who have a right of permanent residence on its territory except on serious grounds of public policy or public security’. Article28.3 provides:
‘An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they: a. have resided in the host Member State for the previous 10 years; or b. are a minor, except if the expulsion is necessary for the best interests of the child…’

The Regulations

[37]There was no issue on this appeal about whether the Regulations applied to Mr Borges, or about the form in which they applied. Regulation 2(1) lists some definitions. ‘EEA decision’ includes a decision under the Regulations ‘that concerns…a person’s removal from the United Kingdom’. ‘EEA national’ means a national of an EEA state who is not also a British citizen and a national of an EEA state who is also a British citizen and who before acquiring that citizenship exercised a right to reside as such a national, in accordance with regulation 14 or 15. An EEA state is a member state other than the United Kingdom (and four other states). ‘Permanent residence card’ is defined by reference to regulation 19(2), ‘residence card’ by reference to regulation 18, and ‘right to reside’ is ‘a right to reside in the United Kingdom in accordance with these Regulations (or where so specified, a right to reside under a particular regulation’.[38]Regulation 3 is headed ‘Continuity of residence’. It applies for the purpose of calculating periods of continuous residence in the United Kingdom for the purposes of the Regulations. Regulation 13(3) provides that continuity of residence is broken(a) when a person serves a sentence of imprisonment, or(b) when a deportation order is made in relation to him. Regulation 3(4) provides that paragraph (3)(a) ‘applies in principle, to an EEA national who has resided in the United Kingdom for at least ten years’. It does not apply where the Secretary of State considers that before serving a sentence of imprisonment, the person had forged integrating links with the United Kingdom, the effect of imprisonment was not such as to break those links, and taking into account an overall assessment of his situation, it would not be appropriate to apply regulation 3(3)(a) to the assessment of that EEA national’s continuity of residence.[39]Regulation 6 defines ‘qualified person’ as, in essence, an EEA national who is exercising Treaty rights. Regulation 7 defines ‘family member’. The definition includes a person’s direct descendants who are either under 21, or dependent on a person, or that person’s spouse or civil partner.[40]Part 2 is headed ‘EEA rights’. Regulation 11 deals with those who must be admitted to the United Kingdom. Regulation 11 is headed ‘Initial right of residence’. Regulation 14(1) gives a ‘qualified person’ a right to reside in the United Kingdom for as long as he is a qualified person. A person who is a family member of a qualified person residing in the United Kingdom under regulation 14(1), or of an EEA national with a right of permanent residence under regulation 15 is entitled to reside in the United Kingdom as long as he is still a family member of the qualified person or EEA national (regulation 14(2)). A family member who has retained the right of residence is entitled to reside in the United Kingdom for as long as that person is still a family member who has retained the right of residence (regulation 14(3)).[41]A right of ‘permanent residence’ is conferred by regulation 15(1) on an EEA national who has resided in the United Kingdom ‘in accordance with these Regulations’ for a continuous period of five years, and on a family member of an EEA national who is not an EEA national but who has resided in the United Kingdom with the EEA national ‘in accordance with these Regulations’ for a continuous period of five years. Residence in the United Kingdom as the result of a ‘derivative right to reside’ is not residence for the purposes of regulation 16 (regulation 16(2)). Regulation 17 makes provision about a ‘Derivative right to reside’.[42]Part 4 deals with, among other things, exclusion and removal from the United Kingdom. Subject to regulation 23(7) and (8), an EEA national who has entered the United Kingdom or his family member who has entered the United Kingdom may be removed if, among other things, the Secretary of State decides that ‘the person’s removal is justified on ground of public policy, public security or public health in accordance with regulation 27’ (regulation 27(6)(b)). A decision taken under regulation 27(6)(b) has the effect of terminating any right to reside otherwise enjoyed the person concerned (regulation 23(9)).[43]Regulation 27(1) defines a ‘relevant decision’ as a decision taken on the listed grounds of public policy. Regulation 27(2) and (3) limit the power to make a relevant decision. By regulation 27(3), such a decision must not be taken in relation to a person with a permanent right of residence ‘except on serious grounds of public policy and public security. Regulation 27(4) provides:
‘A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who – (a) has a right of permanent residence under regulation 15 and who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision or (b) is under the age of 18, unless the relevant decision is in the best interests of the person concerned…’
[44]Regulation 27(5) explains what the public policy and public security requirements of the United Kingdom include, and what principles govern such a relevant decision (sub-paragraphs (a)-(f)). Regulation 27(6) requires the Secretary of State to take account of various considerations before taking a relevant decision. These mirror the factors in article 28.1 of the Directive. Regulation 27(8) requires a ‘court or tribunal considering whether the requirements of this regulation are met…in particular to have regard to the considerations listed in Schedule 1 (considerations of public policy, public security and the fundamental interests of society etc.)’.[45]Paragraph 1 of Schedule 1 records that the EU Treaties do not ‘impose a uniform scale of public policy or public security values: member States enjoy considerable discretion, acting within the parameters set by the EU Treaties…to define their own standards of public policy and public security, for purposes tailored to their individual contexts…’.[46]Paragraphs 2-6 are headed ‘Application of paragraph 1 to the United Kingdom’. Those paragraphs make specific provision about various factors. For example, extensive family or social links with people of the same nationality or speaking the same language do not amount to integration of an EEA national or of his family member in the United Kingdom; ‘a significant degree of wider cultural and social integration must be present before a person may be regarded as integrated in the United Kingdom’. Where an EEA national or family member ‘has received a custodial sentence, or is a persistent offender, the longer the sentence or the more numerous the convictions, the greater the likelihood that the individual’s continued presence in the United Kingdom represents a genuine, present, and sufficiently serious threat affecting the fundamental interests of society’ (paragraph 3). Little weight is to be given to integration if ‘the alleged integrating links were formed at or around the same time as… the commission of a criminal offence…or…the family member was in custody’. Regulation 7 is a detailed list ((a)-(l)) of the aims which are included in ‘the fundamental interests of society’. Some of the authorities FV (Italy) v Secretary of State for the Home Department (C-424/16) and B v Land-Baden Würtemburg (C-316/16)

Some of the authorities

[47]In FV (Italy) and B v Land-Baden Würtemburg [2019] QB 126 Court of Justice answered questions referred by the Supreme Court, and by a court in Germany, respectively. The relevant reasoning of the Court of Justice in FV (Italy) was considered by the Supreme Court in Vomero v Secretary of State for the Home Department [2019] UKSC 35; [2019] 1 WLR 4729(see paragraph 57, below).[48]B was a citizen of Greece, that is, a ‘citizen of the Union’. He came to Germany in 1993 when he was three. He was fined in 2012 for various criminal offences of dishonesty and the unlawful possession of a prohibited weapon. In 2013, when he had been resident in Germany for 20 years, he was convicted of several offences which he committed when he held up an amusement arcade, and was sentenced in December 2013 to five years and eight months’ imprisonment. He had therefore been resident as an EU citizen in Germany for over ten years before he committed the relevant offence. An expulsion decision was made in November 2014. He was serving his sentence when a removal decision was made. The referring court did not consider that there were imperative grounds of public security in his case, so asked whether he qualified for protection under article 23(8)(a).[49]In paragraph 64 the Court of Justice noted the terms of recitals (23) and (24). The ‘fact remains that the decisive criterion’ for the grant of enhanced protection is whether ‘the Union citizen with the right of permanent residence in the host member state, within the meaning of article 16 and article 28(2) of that Directive, has, as required by article 28(3), resided in that member state for the ten years preceding the expulsion decision…’ While that period of residence must, in principle, be continuous (paragraph 66), article 28(3)(a) was silent about the factors which might interrupt the ten years’ residence for the purposes of the right to that enhanced protection (paragraph 67). The Court of Justice considered the relevance of periods of absence during the ten years preceding the expulsion decision (paragraphs 68 and 69).[50]The Court of Justice accepted that, in principle, a period of imprisonment could interrupt the continuity of a period of residence. It was nevertheless necessary ‘in order to determine whether those periods of imprisonment have broken the integrative links previously forged with the host member state with the result that the person concerned is no longer entitled to the enhanced protection provided for…to carry out an overall assessment of the situation of the person concerned at the precise time when the question of expulsion arises. In the context of that overall assessment, periods of imprisonment have to be taken into consideration together with all the relevant factors in each individual case, including, as the case may be, the circumstance that the person concerned resided in the host member state for the ten years preceding his imprisonment’ (paragraph 70) (my emphasis). If the person had already satisfied the ten-year condition when he committed the crime, the fact of imprisonment could not automatically ‘break the integrative links that that person had previously forged with the state…’

Vomero/FV (Italy) v Secretary of State for the Home Department

[51]Mr Vomero was an Italian national who moved to the United Kingdom in 1985 with his future wife, who was a British citizen. They had five children. In 1998, their marriage broke down. Mr Vomero received several convictions between 1987 and 2001. He was given short sentences of imprisonment in 1991 and 1992. He moved in with a Mr Mitchell. On 1 March 2001, he killed Mr Mitchell. Both had been drinking. There was a fight, in which Mr Vomero hit Mr Mitchell at least 20 times on the head with various weapons including a hammer, and then strangled him. He was acquitted of murder and convicted of manslaughter. He was sentenced to eight years’ imprisonment. He was imprisoned between March 2001 and July 2006. Member states were required to transpose the Directive by 30 April 2006.[52]The Secretary of State decided, in 2007, to make a deportation order against Mr Vomero. He appealed and the UT allowed his appeal on a reconsideration. Mr Vomero was convicted again after his release from prison. He served further short sentences in 2012. The Secretary of State appealed to this court, which dismissed her appeal. The Secretary of State then appealed to the Supreme Court, which stayed the appeal and referred three questions on the interpretation of article 28(3) to the Court of Justice for a preliminary ruling. The Court of Justice gave its preliminary ruling on 17 April 2018 (see above).[53]When the hearing resumed, the Supreme Court allowed the appeal of the Secretary of State. It held that a period of imprisonment could not be taken into account for the purposes of acquiring a permanent right of residence under article 16.1 of the Directive. If the provisions in article 16.4 about the loss of a permanent right of residence were applied by analogy, where a person had, before the transposition of the Directive, lived continuously for five years legally but had then been imprisoned for two years or more, he would not have acquired five years’ residence on the date of the transposition of the Directive. Mr Vomero did not, therefore, have a right of permanent residence when the Secretary of State decided to deport him. Neither article 28.2 nor 28.3.a applied to him then. The Supreme Court remitted the case to the UT to consider whether he had acquired that right since the date of the decision to deport him. The parties agreed that the UT should decide that question at the date of the further UT hearing. The Supreme Court did not express a view on the correctness of that agreement. The UT would, at that date, have to consider whether there were still grounds of public policy or public security within article 28.1 which would justify his removal.[54]Lord Reed gave a judgment with which the other members of the court agreed. He said that ‘legal residence’ means ‘residence which satisfies the conditions laid down in the Directive, in particular those set out in article 7(1)’. In relation to periods before the transposition of the Directive, it means residence in accordance with the earlier EU instruments (paragraph 9). Lord Reed noted that the Directive does not deal, among other things, with whether periods of imprisonment could be treated as legal residence, or whether such periods interrupt the continuity of residence. Those gaps had been filled by decisions of the Court of Justice (paragraph 14).[55]One such decision was Onuekwere. In that case, Court of Justice held that periods of imprisonment could not be taken into account for the purposes of article 16.2 and that periods of imprisonment also interrupted the continuity of residence. In a judgment given after the earlier hearing in the Supreme Court, Lord Mance had observed that the same must apply to a citizen of a member state under article 16.1.[56]Another such decision was Secretary of State for Work and Pensions v Dias (Case C-325/09) [2012] All ER (EC) 199. The effect of that decision was that the rule in article 16.4 about absences must be applied by analogy in relation to any period during which a person did not satisfy the conditions in the Directive (such as the requirement to work). A person would not lose the right of permanent residence by not working unless she did not work for two years or more (paragraph 17).[57]In paragraph 21, Lord Reed quoted the questions which the Supreme Court had referred to the Court of Justice. The Court of Justice had reformulated those questions. The first was whether in order to be protected against expulsion, the citizen of the member state must have a right of permanent residence, within the meaning of articles 16 and 28.3. The premise of that question was that Mr Vomero did not have a right of permanent residence in the United Kingdom. The Court of Justice did not necessarily accept that premise (in paragraphs 41 and 41 of its judgment). Lord Reed also quoted paragraphs 32 and 33 of the Opinion of the Advocate General. In paragraph 25, Lord Reed recorded that the Court of Justice had explained that article 28 provides a ‘graduated scheme of protection against expulsion under which the degree of protection reflects the integration of the Union citizen concerned in the host member state’. He quoted paragraphs 44-49 of the judgment of Court of Justice. The ‘protection against expulsion…gradually increases in proportion to the degree of integration of the Union citizen concerned in the host member state’ (paragraph 48). Even though this was not expressed in the words of the provisions, ‘the enhanced protection …is available to a Union citizen only in so far as he first satisfies the condition for the protection referred to in article 28.2 of that Directive, namely, having a right of permanent residence under article 16…’ (paragraph 49). That answer to the first question meant that the Court of Justice did not answer the second and third questions which the Supreme Court had referred to it.[58]Lord Reed also briefly mentioned the reference in B (which was considered by Court of Justice at the same time as the reference in Vomero). The fourth question referred by the German court concerned the date at which compliance with the condition in article 28.3.a was to be assessed. The answer was that it was the date at which the expulsion decision was made. Where the enforcement of that decision was delayed, a further assessment of the public policy issues might be necessary, particularly if, on the facts, the risk had lessened during the period of delay (paragraphs 27-28). In paragraph 29 Lord Reed rejected the idea of a ‘notional’ right of permanent residence acquired before the date of the deportation decision. There was no support for that concept in the decisions of the Court of Justice.[59]Lord Reed then clarified that there were two distinct questions on the facts. The first was whether Mr Vomero had acquired a right of permanent residence before the decision to deport him. Lord Mance had concluded that he had not, because his period in prison meant that he had not resided legally in the United Kingdom for a continuous period of five years before the decision to deport him. The Court of Justice had been unable to assess the correctness of a premise which was different from Lord Mance’s conclusion. The premise to which Court of Justice referred was different; it was that Mr Vomero did not presently have a right of permanent residence. That question was not before the Supreme Court (paragraph 33). Nor did the Advocate General’s remarks put Lord Mance’s conclusion in question (paragraph 37).[60]Lord Reed referred again to Dias. In that case a ‘Union citizen’ had been legally resident in the United Kingdom for more than five years before 30 April 2006. She then did not work for a year, but worked again between 2004 and 2007. She claimed then to have acquired a right of permanent residence. The Court of Justice had held that she had not acquired a right of permanent residence because while the five-year period before 30 April 2006 could count towards the necessary five-year period, that right could not be acquired until that date, and by that date, she was not working.[61]In paragraph 42, Lord Reed quoted paragraph 26 of the judgment of the Court of Justice in Onuekwere. A prison sentence showed ‘non-compliance by the person concerned with the values expressed by the society of the host member state in its criminal law, with the result that the taking into consideration of periods of imprisonment for the purposes of the acquisition by family members of a Union citizen who are not nationals of a member state the right of permanent residence for the purposes of article 16(2)…would clearly be contrary to the aim pursued by that Directive in establishing that right of residence’. The Court of Justice in that case had said that articles 16.2 and 16.3 must be interpreted as meaning that the continuity of residence of a third country national who is a family member of a citizen of a member state is interrupted by periods of imprisonment. The applicant in that case could not, therefore, aggregate periods of residence before and after his periods of imprisonment so as to establish five years’ continuous legal residence (paragraph 42). The same reasoning must apply to citizens of a member state (paragraph 44).[62]This case was different because Mr Vomero had completed five years’ continuous legal residence before his imprisonment. His period of imprisonment ‘prevented him from acquiring a right of permanent residence’ on 30 April 2006, however. The necessary five-year period could not begin before the date when he was released from prison after serving the custodial part of his sentence. If he had not completed five years’ residence before the periods of imprisonment in 2012, those periods would not count towards the five years required, and would interrupt the continuity of residence, in accordance with Onuekwere (paragraph 45).[63]The second question, which was not before the Supreme Court and which, the parties agreed, would be remitted to the UT, was whether he had acquired a right of permanent residence since the decision to deport him. The Supreme Court did not need to say whether that agreement was correct (paragraph 32).

The Decision

[64]The reasons for the Decision are 21 pages and 135 paragraphs long. I will not make this long judgment any longer than necessary by quoting from it extensively. The Decision described the offences committed by Mr Borges and his three sentences of imprisonment. It referred to the two warning letters from the Secretary of State. In paragraph 28, it said that ‘residence’ meant ‘lawful residence’ in accordance with [the Regulations]. Time spent in prison did not count. In paragraph 29, the Decision referred to Mr Borges’s renunciation of his Indian nationality. That meant that he ‘lost any right of residence that he had acquired based on [his] status as a non-EEA family member’. The Secretary of State nevertheless accepted, on the evidence, that Mr Borges had, since 2014, acquired a right of permanent residence as a Portuguese national exercising Treaty rights.[65]The Secretary of State did not accept that Mr Borges had been continuously resident in in the United Kingdom for ten years. He had been in prison in 2011-2012, and had returned to prison in 2019. Time spent in prison did not count (paragraph 31). The Secretary of State referred to Onuekwere in paragraph 32. Its effect was that time in prison can break the period of continuity required for the purposes of the Regulations. The Home Office took the view that Mr Borges did not ‘qualify for the enhanced protection of Regulation 27(4)’ (paragraph 33). The Decision referred to regulation 27(4) and article 28.3 of the Directive. As Mr Borges had not become an EEA national in his own right until 2014, it was clear from both provisions that he could not benefit from that enhanced protection. His residence, which was for less than ten years, was also broken by the periods in custody.[66]Under the heading ‘Assessment of Threat’, the Decision listed the principles in regulation 27(5) of the Regulations, and referred to the non-exhaustive list of the ‘fundamental interests of society’ in Schedule 1 to the Regulations. Over the next five pages or so, the Decision described the index offences, by reference to the OASys report and the sentencing remarks. Mr Borges had a history of getting into debt because of drugs, and ‘has been known to commit serious offences in order to manage such debts’. Mr Borges was assessed to pose ‘a risk of serious harm and further offending within the community, if he were to be released with his current financial situation’. His previous and current offences showed this. There was a pattern of offences involving ‘recklessness, risk taking and aggression towards others’.[67]The index offences were committed with a co-defendant. On 3 May 2019, they entered a house as trespassers. The occupier was away. They stole a car key and a passport. Mr Borges had an offensive weapon, a meat cleaver, with him. A crow-bar was also found by the police. The police received a report from the public and arrived at 11pm. The property had been extensively searched (‘ransacked’). The defendants, or one of them, had tried to get into a safe. The occupier was so upset when she was told about the burglary that she moved out. She never slept there again. The victim and her property were deliberately targeted because the defendants believed that there were drugs in the premises. There was a significant amount of planning. The two defendants were acting as a group and had a weapon. The Judge referred to the earlier robberies (see paragraph 8, above) and treated them as another aggravating factor.[68]The Decision quoted from the OASys report (paragraphs 46-51). Under the heading ‘Risk of harm/reoffending conclusion’, the Decision said, ‘The seriousness of the offence in the light of the full circumstances of its perpetration is indicative that you pose a significant threat to the safety and security of the public of the United Kingdom’. If Mr Borges were to re-offend, any offence would be ‘of a similar or more serious nature’. His deportation was justified on ‘serious grounds of public policy or public security’.[69]Paragraphs 53-58 of the Decision are headed ‘Proportionality’. The Decision referred to the considerations in regulation 27(5)(a) and 27(6). It considered the relevant factors. Paragraph 62 acknowledged that Mr Borges would have developed ties in the United Kingdom. He had been convicted of serious offences and sentenced to six years’ imprisonment. His convictions indicated ‘an established pattern of repeated offending, of similar offences’. The warning letters had not stopped him from offending again. That indicated ‘a lack of regard for the law, a lack of remorse…and a lack of understanding of the negative impact of’ his offences on other people. ‘The seriousness of your offences and the fact that you have continued to offend and serve time in prison points to a lack of integration’.[70]The Decision considered the topic of rehabilitation in paragraphs 63-67. The Decision referred to the courses which Mr Borges had taken in prison. The view of the Home Office was that going on such courses in prison did not of itself indicate rehabilitation, or guarantee a reduction in the risk of re-offending on release. There was not enough evidence that Mr Borges had ‘fully and permanently’ addressed the reasons for his offences. His family ties had not stopped him offending in the past. They were unlikely to do so in the future. He did not need to be in the United Kingdom in order to ‘work towards rehabilitation’. Deportation to Portugal would not prejudice his rehabilitation.[71]The conclusion was that Mr Borges had committed serious criminal offences in the United Kingdom and that there was a ‘real risk’ that he would do so in the future. For the reasons in the Decision, and, ‘in particular, the genuine, present and sufficiently serious threat’ which Mr Borges posed to ‘one of the fundamental interests of United Kingdom society’ his deportation was considered to be justified on grounds of public policy in accordance with regulation 23(6)(b) of the Regulations. His personal circumstances had been considered, but the view was that, ‘given the threat which you pose, the decision’ was proportionate and in accordance with the principles in regulations 27(5) and (6).

Determination 2

[72]The appeal was heard in August 2023. The F-tT summarised the facts in paragraphs 3-7 of determination 1. It referred to the Decision for the ‘full offending history’. It left out from its summary the offences committed by Mr Borges in 2008, and his sentence of imprisonment for those offences. It referred to the sentence served between February 2011 and March 2012 as his ‘first sentence of imprisonment’. It noted that Mr Borges had served three years of his six-year sentence.[73]The F-tT also noted that the Secretary of State did not accept that Mr Borges had lived continuously in the United Kingdom for ten years in the light of the period of imprisonment in 2011-2012 (paragraph 10).[74]The first issue the F-tT had to decide was whether Mr Borges had resided in the United Kingdom for a continuous period of at least ten years before the Decision (paragraph 17). It recorded the Secretary of State’s submission that the ten-year period must run from 2014 when Mr Borges became a Portuguese citizen. Ms Damaj, for the Secretary of State, supported that argument by referring to regulation 27(4).[75]In paragraph 19, the F-tT did not accept that the ten-year period started in 2014. Mr Borges was a family member of an EEA national and ‘was living in the UK under EEA leave from 2002 onwards’. Paragraph 27(4)(a) of the Regulations did not refer to ‘any qualification of the type of residence required over the ten year period in order to qualify for the enhanced protection under paragraph 27(4)’. It was ‘important to take into account that this argument was not put forward in the [Decision] nor in the review and was somewhat of a surprise in submissions’. I note that that is also inaccurate; the argument was made in the Decision, as the Secretary of State’s application for leave to appeal to the UT pointed out (see paragraph 85, below). The F-tT did not accept that ‘the 10 year period starts from 2014, when he became an EEA national’.[76]The F-tT referred to paragraphs 70, 72, 73 and 83 of FV (Italy) v Secretary of State for the Home Department (C-424/16) and B v Land-Baden Würtemburg (C-316/16) in paragraph 20. The F-tT was ‘satisfied that with respect to the issue of whether or not a period of imprisonment can count towards the ten years, an individual claiming enhanced protection who has spent 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 within that ten year period. This is consistent with the fact that if the calculation were simply an arithmetical exercise the phrase “overall assessment” would be inappropriate. It is also consistent with Regulation 3 of [the Regulations]’ (paragraph 21, original emphasis).[77]The F-tT quoted regulation 3 of the Regulations. It repeated the point made in paragraph 10 of determination 2 (see paragraph 73, above). The Decision did not count backwards from November 2022 ‘as required by the case law. On doing so, it is evident that within the 10-year period, [Mr Borges] was in prison for a period of three years and that he has been back in the community since October 2022’ (paragraph 22). The F-tT held that ‘the fact of imprisonment does not automatically mean that the imprisonment is to be discounted from the 10 year calculation for enhanced protection as there needs to be an overall assessment of [Mr Borges’s] situation, taking into account all relevant aspects, including integrative links between [him] and the UK in order to determine if the integrative links have been broken’ (paragraph 23).[78]In paragraph 24, the F-tT said that Mr Borges had been resident in the United Kingdom since 2002. He had ‘spent 9 years in the UK continuously and lawfully until his 13 month prison sentence which started in February 2011 until March 2012’. He had arrived in the United Kingdom when he was 13 and had been educated here after that. The F-tT was satisfied ‘overall’ that Mr Borges ‘had forged significant and weighty links with the United Kingdom prior to his first period of imprisonment in 2011’ (my emphasis).[79]In assessing his integrative links before and after his ‘first’ period of imprisonment in 2011 and 2012, it was relevant, the F-tT said, to consider determination 1. The F-tT gave an edited account of determination 1 in paragraph 25. It omitted the negative points I summarise in paragraph 9, above, apart from the motive for the two offences (paragraph25.1 ) and25.2 )). In paragraph 26, the F-tT described Mr Borges’s educational certificates and his work history between 2014 and 2019. In paragraph 27 the F-tT considered Mr Borges’s ‘post-imprisonment integration’. He had always lived with his parents ‘both before and after each period of imprisonment’ (my emphasis). ‘Overall I am satisfied that [Mr Borges] continued to have significant and weighty integrating links with his family in the UK after each period of imprisonment’ (my emphasis).[80]The F-tT continued:
‘Based on all the evidence, I find that [Mr Borges] was significantly integrated into the UK before the first period of imprisonment in 2011 and that he did not lose the significant and sufficient integration when he went into prison in 2011 nor when he came out of prison in 2012 until his next offending in 2019’ (my emphasis). The F-tT made similar further points about his ‘integration’
. It also described his relationship with his current partner who was expecting her third, and Mr Borges’s first, child. She did not live with him (paragraph 28).[81]In paragraph 29, the F-tT repeated that Mr Borges had ‘strong integrative links to the UK’ both before and after his imprisonment in 2012. He had been back in the community for 7 years before any further offending. He was ‘strongly integrated’ into the United Kingdom during his second period of imprisonment and had strong links after his release. He had given some evidence about his employment since his release in 2022.[82]The F-tT was satisfied that Mr Borges ‘had 10 years continuous residence in the UK at the time of the decision in November 2022 and that his period of residence and integration was not broken by his first or second period of imprisonment (in 2019). Given the strength of his integrative links before, during and after his two periods of imprisonment, I am satisfied that he had attained 17 years of continuous residence in the UK by the time of his second period of imprisonment in 2019. Further, given the extent of his ongoing family and social integrative links with the UK during his second period of imprisonment [and after his release], on applying Regulation 4 of [the Regulations], I am satisfied that it would not be appropriate to apply regulation 3(a) to [Mr Borges]’ (paragraph 30; my emphases).[83]The F-tT accepted that Mr Borges had ‘10 years continuous residence in the UK’. He could only be deported on imperative grounds of public security (paragraph 31). In paragraph 32, the F-tT said that the Secretary of State had ‘not put forward any imperative grounds of public security for the deportation within either [the Decision] or oral submissions at the hearing’ (paragraph 32). ‘I find that there are no imperative grounds of public security applicable in this appeal’ (paragraph 33). The F-tT allowed the appeal of Mr Borges.

The Secretary of State’s grounds of appeal to the UT

[84]There were three headings in the Secretary of State’s grounds of appeal. There were said to be three material misdirections of law, concerning the imperative grounds test, and failures to apply a proportionality test, and to take material matters into account.[85]The first misdirection was that the imperative grounds of public security test could not apply, because Mr Borges did not become a Portuguese national until 2014. The grounds relied on regulation 27(4), and regulation 2. The grounds pointed out that this argument had been relied on in the Decision. The Secretary of State accepted that Mr Borges had acquired permanent residence and was therefore entitled to the middle level of protection.[86]The second misdirection was that, regardless of the level of protection to which Mr Borges was entitled, the F-tT was obliged to ‘consider all matters relevant to the decision to the appropriate threshold, which includes proportionality and the public interest’, and other matters referred to in regulation 27(5)(c). The F-tT failed to apply the relevant principles in ‘Schedule (1)(7)’ to the Regulations, and had paid no regard to the principles in paragraph 3.[87]The third misdirection was that the F-tT had not assessed the present threat posed by Mr Borges. It had focused on integrative links through his family, his social connections and employment since his arrival in the United Kingdom when he was 13. These were relevant, but integration ‘connotes integration as a law-abiding citizen’. The grounds referred to Binbuga (Turkey) (that is, Binbuga v Secretary of State for the Home Department [2029] EWCA Civ 551; [2019] INLR 403). The F-tT had failed to address Mr Borges’s crime, and his continued potential to cause harm (he was assessed as posing a medium risk of harm). There was also a pattern of offending, and problems with the misuse of drugs. The course he went on in 2012 had little effect given the escalation in his offending in 2019. There was no present evidence of effective rehabilitation.

The F-tT’s grant of leave to appeal

[88]On 11 September 2023, the F-tT gave leave to appeal to the Secretary of State. The decision only referred specifically to ground 1, but the grant was not specifically limited to ground 1. It is to be treated, therefore, as a grant of leave to appeal on all grounds.

Determination 3

[89]There were two hearings, on 22 November 2023 and 15 February 2024. The UT explained in paragraph 20 of determination 3 that it had convened the second hearing in order to consider the effect of the transitional provisions which applied the Regulations to Mr Borges’s case (see the next paragraph). The UT summarised the facts in paragraphs 3-15. It did not refer to the conviction and sentence of imprisonment in 2008, perhaps because it relied on the F-tT’s similarly deficient account of the facts. It summarised determination 2 in paragraph 16. When The F-tT used the phrase ‘living in the UK under EEA leave’, it meant living in accordance with the Regulations and their predecessors.[90]The UT quoted recitals (23) and (24) to the Directive and article 28 in paragraph 17. It quoted regulations 3, 23(6), 27 of, and Schedule 1 to, the Regulations in paragraph 19. It considered the transitional provisions in paragraphs 20-31. Its conclusion was that the Decision was to be taken ‘in accordance with the relevant provisions of the Regulations as preserved in modified form by regulations 5-10 of the Grace Period SI’. By that phrase, the UT meant the Citizens’ Rights (Application of Deadline and Temporary Protection) (EU Exit) Regulations 2020 (2020 SI No 1209) (see paragraph 23 of determination 3). The UT’s conclusion was that the Decision had to be taken according to the relevant provisions of the Regulations as preserved in modified form by regulations 5-10 of the ‘Grace Period SI’. The upshot was that, as the appeal involved conduct before ‘IP completion day’ (that is, 30 December 2020), the Regulations which applied were not relevantly different from those which were in force on 30 December 2020 (paragraph 33). There is no appeal against that aspect of the UT’s decision.[91]In paragraph 34 the UT summarised the arguments. The Secretary of State contended, first, that Mr Borges had not completed 10 years’ continuous residence as an EEA national counting back from the date of the removal decision. He was therefore only entitled to the ‘middle level of protection’ against removal. Although the Decision did not refer to imperative grounds of public security, the F-tT was obliged in any event to consider all matters relevant to the appropriate threshold (ground 2). The F-tT had focused on Mr Borges’s integrative links without bearing in mind that social and cultural integration in the United Kingdom was as a ‘law-abiding citizen’. The UT also referred to the other factors mentioned in ground 3 (see paragraph 87, above).[92]Mr Borges submitted that the F-tT was right for the reasons which it gave. Its approach was consistent with the Directive and with the Regulations. The imperative grounds of public security test must be interpreted ‘strictly’. It was ‘considerably stricter’ that the ‘serious grounds’ test. He relied on the decision of this court in FV (Italy) v Secretary of State for the Home Department [2012] EWCA Civ 35; [2013] 1 WLR 3339. There were no imperative grounds of public security, or, if relevant, serious grounds (paragraph 35).[93]The UT had been referred to no relevant authority. It noted the Secretary of State’s submission that authorities in the Court of Justice and the Supreme Court showed that the enhanced protection only applied to those with a right of permanent residence. Mr Borges had ‘undoubtedly acquired such residence’. The UT understood the reference to the authorities to mean Vomero in the Court of Justice and in the Supreme Court (paragraph 37).[94]As the F-tT had noted, regulation 27(4) does not ‘state, at least in terms, that the EEA national in question must have resided in the host Member State as an EEA national exercising Treaty rights for the whole [ten-year] period; and in that respect, it contrasts with regulations 12 and 15…which refer to an EEA national’ who has resided in the United Kingdom ‘in accordance with’ the Regulations. ‘The language of regulation 27(4) thus tends to point towards, and at least is consistent with, enhanced protection being afforded to a person who is an EEA national at the time of the removal decision, and who has acquired the minimum period of continuous residence in accordance with [the Regulations] or [the Regulations] and 2006 Regulations, whether such residence has been accumulated as a family member of an EEA national exercising Treaty rights, provided the individual facing removal is an EEA national at the date of the removal decision’.[95]The same applied to the words of article 28(3). It does not in terms require the relevant person to have been a citizen of an EU member state for the whole period of ten years. There was nothing in the broader scheme of the Directive which would lead to that conclusion. The ‘underlying rationale’ for article 28(3) was to confer additional protection on Union citizens who have exercised their free movement rights, in circumstances where they have become integrated into another Member State as demonstrated by length of residence. The UT saw no logic in excluding from consideration residence accumulated as a family member of an EEA national where such residence preceded the individual’s residence as an EEA national exercising Treaty rights and was continuous with it. Individuals in that situation are, in the words of recital 24 to the Directive ‘Union citizens who have resided for many years in the territory of the host Member State’. While it might be argued, from the first sentence of recital (23), that ‘the exercise of Treaty rights will precede the period of integration, the operative provision, Article 28, does not make that a requirement’.[96]The UT therefore decided that the enhanced protection applied if the person is an EEA national at the date of the removal decision and has accumulated ten years of continuous residence under the relevant regulations, ‘even if such residence includes a period’ in which such residence was as a family member (paragraph 40(i)). It was not necessary for the person to have resided for ten years as an EEA national exercising Treaty rights (paragraph 40(ii)).[97]In paragraph 41 the UT summarised the facts. Although the Secretary of State considered that the sentence of imprisonment in 2019 broke the period of continuity, the F-tT had found otherwise. The F-tT had also found that, as at the date of the removal decision, the periods of imprisonment had not ‘broken the continuity of [Mr Borges’s ] integration. These findings have not been challenged’.[98]The UT found that on the basis of the F-tT’s findings and in the light of its conclusions about the interpretation of regulation 27(4), Mr Borges was entitled to enhanced protection from removal. The F-tT did not err in law in taking into account his residence as a family member (paragraph 42).[99]The next question was whether the period of imprisonment between 2019 and 2022 broke the continuity of Mr Borges’s residence. The UT did not understand the Secretary of State to challenge that conclusion on the appeal. The UT then quoted paragraphs 70-74, 80 and 83 of the judgment of the Court of Justice in joined cases LV (Italy) that is, Vomero, and B. In paragraph 43 it referred to the decision of this court in Hafeez v Secretary of State for the Home Department [2020] EWCA Civ 406; [2020] 1 WLR 1928 (‘Hafeez’). Paragraph 35 of Hafeez showed that periods of imprisonment do not count towards the ten years, but ‘conversely did not automatically reset the ten-year clock so that ten years’ post-imprisonment residence had to be shown’.[100]The Supreme Court in Vomero decided that a period of imprisonment could not be relied on as part of the five years required for a right of permanent residence under 16, which was a ‘pre-requisite to the enhanced protection from removal’ conferred by article 28(3)(a). Neither case was inconsistent with the acquisition by Mr Borges of enhanced protection, as he had resided in the United Kingdom in accordance with the Regulations for a continuous period of at least ten years counting back from the date of the Decision ‘and without taking into account periods of imprisonment towards the ten years, and in circumstances where the periods of his imprisonment did not break the integrative links he had previously forged with the UK’. The UT could therefore detect no error of law in the approach of the F-tT (paragraphs 44 and 45).[101]The UT approached grounds 2 and 3 on the footing that Mr Borges was entitled to enhanced protection from removal. Its view was the Secretary of State had a ‘primary duty’ to identify any imperative grounds of public security. None were relied on in the Decision because the Secretary of State considered that Mr Borges was not entitled to that protection (paragraph 48).[102]I will quote paragraphs 49-51 of determination 3. ‘49. Ms Everett submitted that, if we concluded that the judge was correct to find that [Mr Borges] was entitled to enhanced protection, [the UT] could decide whether or not imperative grounds of public security existed; in her view, there would be no need for a further hearing. [The Secretary of State] relies upon the OASys report. There is no further evidence [the Secretary of State] would rely upon. 50. In response, Mr Karim said that, if we were to conclude that there were no imperative grounds for [Mr Borges’s] removal, he was content for us to proceed to re-make the decision on the appeal. However, if we were of the view that there were potentially imperative grounds, [Mr Borges] should have the opportunity to address the Tribunal; furthermore, in that case, he submitted that a remittal to the F-tT would be necessary as [Mr Borges’s] circumstances had changed, in that he now has a son. 51.We have some difficulty with [the Secretary of State’s] submission that the FtT ought of its own motion to have considered whether there are imperative grounds of public security for [Mr Borges’s] removal, even in circumstances where(a) the primary decision-maker had not put forward any such grounds and(b) [the Secretary of State] did not invite the FtT to find any such grounds to exist. However we find it unnecessary to decide [whether] the FtT might nevertheless have erred in law by not considering the issue, because having considered the matter ourselves, we find no such grounds to exist.’[103]In paragraphs 52-55, the UT made its own assessment of whether there were imperative grounds of public security. Its description of the outcome of that assessment varies. In paragraph 51, the UT said that it had found that there were no such grounds. In paragraph 55, the UT said that having taken into account various factors, ‘we are of the clear view that this case falls well short of one where removal is justified on imperative grounds of public security. Serious as [Mr Borges’s ] offending was, the circumstances do not, in our view, rise to the particularly serious level…’. The UT went significantly further in paragraph 56. It said that if the F-tT had considered whether there were imperative grounds of public security, ‘it would have been bound to have concluded that no such grounds existed. Accordingly, there was no material error of law’.

The UT’s reasons for refusing permission to appeal to this court

[104]The Secretary of State applied to the UT for permission to appeal to this court on two grounds. 1. The UT erred in law in counting periods of residence when Mr Borges was not a citizen of an EU member state towards the ten years’ qualification period. 2. If Mr Borges was entitled to enhanced protection, the UT erred in holding that a properly directed tribunal would have been bound to find that there were no imperative grounds, and that there was no material error of law in determination 2.[105]The UT refused permission to appeal on 2 April 2024. It held that Ground 1 did not meet the second appeals test, because of the dwindling number of post-Brexit cases, and was not arguable, in any event. Ground 2 was ‘no more than a disagreement with the Tribunal’s conclusions on issues of factual assessment and evaluation’. There was no arguable error of law and the second appeals test was not met.

The grounds of appeal to this court

[106]The Secretary of State now appeals to this court with the permission of Newey LJ. There are two grounds of appeal. 1. The UT misconstrued regulation 27(4) of the Regulations and erred in holding that Mr Borges enjoyed the highest level of protection against removal. 2. The UT erred in upholding the decision of the F-tT that there were no imperative grounds of public security.

The submissions

[107]The submissions on ground 1 were relatively succinct. Each counsel submitted that the language of article 28.3 and regulation 27(4) supported his client’s case. Each also submitted that the argument for the other side required extra words to be read in to those provisions. The absence of the missing words meant that each argument (for different reasons) was correct.[108]Mr Karim pointed out that a person cannot become an EEA national ‘on a whim’ and contended that the result of the Secretary of State’s interpretation would be two tiers of citizenship of the Union. The Court of Justice had not said, either in LV, or in B, that its reasoning only applied to people who had been EU citizens throughout the ten-year period. That reasoning was consistent with his case.[109]On ground 2, Mr Karim supported the approach of the UT. He relied on Volpi v Volpi [2022] EWCA Civ 464; [2022] 4 WLR 48 (paragraph 2) and argued that this court should be reluctant to interfere with the assessment of a specialist tribunal. The tests for the two levels of protection involved the assessment of different factors. Paragraphs 3 and 7 of Schedule 1 do not apply to imperative grounds of public security. The Secretary of State had not, in any event, put forward any such grounds, and the F-tT was entitled to find that there were none.[110]Mr Malik submitted that the UT had no power to do what it had done. It had re-made the F-tT’s decision on imperative grounds of public security, but had not identified any material error of law which would have entitled it to set aside determination 2 and to re-make it. This was not a case in which there was only one right answer on the question whether there were imperative grounds of public security. Discussion Ground 1

Discussion

[111]Mr Karim was right to submit that neither article 28.3 nor regulation 27(4) expressly provides that the EEA national in question must be an EEA national throughout the ten-year period of residence which is the condition of enhanced protection from removal. In my judgment, that is because neither provision needs to say so. There are several reasons for that view. I will focus on the Directive, because a national court must interpret domestic legislation, so far as possible, in the light of the wording and purpose of the Directive which it seeks to implement (see, for example, Swift v Robertson [2014] UKSC 50; [2014] 1 WLR 3438, paragraph 20, per Lord Kerr). There is, in my judgment, no difference between the Directive and the Regulations which is material to ground 1.[112]First, it is clear from the recitals to the Directive that ‘citizenship of the Union’ is a fundamental status which is conferred by the Treaty. That status is not conferred on third country nationals who are family members of a citizen of the Union. There are thus three relevant classes of people:(1) citizens of the Union exercising Treaty rights;(2) their family members who are also citizens of the Union, and(3) family members who are third country nationals. The provisions of the Directive which apply to family members are always clear about whether they apply to family members ‘irrespective of nationality’ or whether they apply only to family members who are ‘Union citizens’. ‘Union citizens’ are in a special position. Citizenship of the Union, as a person exercising Treaty rights, confers ‘primary and individual rights’ which are distinct from the rights which third country national family members have. Those latter rights are described in the authorities as ‘derivative rights’. They are of a different quality and nature from primary rights enjoyed by citizens of the Union. Their source is not the Treaty, but the Directive. They are not independent rights: they derive entirely from the rights of the citizen of an EU member state whose family member they are.[113]The difference between those three classes of people is reflected in many of the provisions of the Directive. That citizenship of an EU member state is more fundamental than the derivative rights of third country national family members is clear, for example, from a comparison between article 28.2 and article 28.3. All three classes of people who have a right of permanent residence have the second tier of protection from removal (article 28.2). Only those in classes(1) and(2) have enhanced protection (article 28.3).[114]Citizens of the Union cannot be the subject of visa requirements or other formalities, whereas the members of their families who are nationals of third countries can be (article 5), reflecting the distinction made by recitals (11) and (13). Third country nationals, who would otherwise lose their rights of residence on the departure from the territory of the host member state, or by death of, or on their divorce from, the ‘Union citizen’ from whom their rights of residence derive, require special and express protection (by articles 12 and 13). Without that protection they would have no continuing right to stay in the territory of the host member state. Third country national family members, unlike all ‘Union citizens’, do not automatically acquire a right to equal treatment, but only acquire it if they have first acquired permanent residence (article 24). Third country national family members are also, to some extent, passengers. A ‘citizen of the Union’ has to have been exercising Treaty rights for a period of five years before he gets a right of permanent residence, whereas a third country national family member is not required to exert him or herself in any way (articles 14.4, 16 and 17), unless he or she wishes to benefit from the special protection created by articles 12 and 13, or to obtain a right of permanent residence (see article 18). A third country national family member is specifically given a right to work by article 23, but has no duty to support him or herself.[115]Second, it is clear from the recitals and from article 28 that the protection against removal is cumulative. The authorities show that a ‘Union citizen’ is not protected from removal by article 28.3 unless he also has earlier acquired the right of permanent residence which is conferred on ‘Union citizens’ by article 16.1. In my judgment, the requirement to have obtained permanent residence as a precondition for the highest level of protection from removal must be understood as a requirement to have obtained that right as a ‘Union citizen’, that is, as a person who has either earned that right by the continuous exercise of his or her Treaty rights for five years, or who is a family member of such a person who has also been a ‘Union citizen’ throughout that period, and also therefore deriving that right from the Treaty. In short, the right of permanent residence is either earned by a ‘Union citizen’ exercising Treaty rights or conferred by the Treaty on his or her family member who is a ‘Union citizen’. It is neither earned by a third country national family member, nor conferred on him or her by the Treaty. The right of permanent residence of a ‘Union citizen’ is different in quality and nature from the right of permanent residence of a third country national family member. Vomero shows that, in order to have enhanced protection from removal, a ‘Union citizen’ must first have acquired the right of permanent residence (as explained above). There is no obvious principle which could explain the extension of the reasoning in Vomero to a right of permanent residence acquired, not by a ‘Union citizen’, but as a third country national family member, whose right does not derive either from the Treaty, or from the exercise of Treaty rights. Yet that is what Mr Borges’s case requires. I reject Mr Karim’s submission that the reasoning in Vomero is consistent with his case. The Court of Justice did not need expressly to say that its reasoning only applied to a person who had gained, or argued that he had gained, a right of permanent residence as a ‘Union citizen’, rather than as third country national, because Mr Vomero was a ‘Union citizen’.[116]There are two reasons why the protections against removal are cumulative and depend on increasing periods of residence. First, this scheme protects those who have exercised their rights under the Treaty. If they have exercised those rights, and are genuinely integrated in the host member state, an expulsion measure can harm them, as recital (23) recognises. Their integration will increase over time, and the more integrated they are, the more that they will be harmed by expulsion. But recital (23) is explicitly aimed at those who have exercised Treaty rights. Third country national family members do not exercise any Treaty rights, because they have none. Second, this scheme of incremental protection encourages the integration of Union citizens and their family members, as recital (24) recognises. The natural reading of recital (24) is that it refers to people who have been Union citizens throughout the many years referred to, and the reference to people who were born in, and have lived their whole lives in, the host member state, is to people who were Union citizens at birth, and whose rights are conferred by the Treaty. The UT rightly recognised that recital (23) weighed against its interpretation of the relevant provisions. The UT’s error was not to apply that recognition as an aid to its interpretation of those provisions, but to give decisive weight to the absence of express words which supported the Secretary of State’s interpretation. Recital (24) is an important aid to the interpretation of article 28.3.[117]The contrary construction does not give effect to the fundamental distinction between Treaty rights and derivative rights, or to either of those purposes. Mr Karim had to accept that if his construction is correct, a third country national family member who had obtained a permanent right of residence, not as a Union citizen, but as a third country national family member, had resided in the host member state for ten years, and who had become a Union citizen on the day before an expulsion decision, would be entitled to enhanced protection from removal, because of the accident that he had become a Union citizen on the day before the expulsion decision. That would be an adventitious outcome. It would also be contrary to the scheme of the Directive, which recognises the three classes of people to which I have referred, and which acknowledges that because those in the first two classes get their rights from the Treaty, they are in a different, and significantly better, position, than those in the third class. It would also undermine the incremental development of protection for ‘citizens of the Union’ which I have described.[118]I would therefore allow the appeal on ground 1.

Ground 2

[119]The first question under Ground 2 is whether the F-tT erred in law in its approach to imperative grounds of public security. The starting point is that, in scheme of the Directive and of the Regulations, the factors which are relevant to the ‘serious grounds’ and ‘imperative grounds’ tests are exactly the same. I reject Mr Karim’s submission to the contrary. The difference between the two tests is only that the second test requires them to be present in a stronger form than does the first test. I accept Mr Malik’s submission that the F-tT was bound by regulation 27(8) to take into account, in particular, the considerations in Schedule 1, and that it was bound to do so whichever of the two tests it was applying. The fact that the Decision did not refer to the second test is not because the Secretary of State conceded that the second test was not met, but because the Secretary of State did not consider that it was relevant. The F-tT, having decided that the second test applied, was obliged by regulation 27(8) to consider for itself whether that test was met, having regard, in particular, to the considerations in Schedule 1 to the Regulations, and to give reasons for that decision. It did not do so. It therefore erred in law. That analysis answers the difficulty which the UT described in paragraph 51 of determination 3 (see paragraph 102, above).[120]I consider that the better reading of paragraphs 49-56 of determination 3 is that the UT did not decide whether or not the F-tT had erred in law in its approach to imperative grounds of public security, and did not set aside determination 2, but nevertheless then made its own evaluative assessment of whether there were such grounds. That it made its own assessment is supported not only by the text of those paragraphs but also by the UT’s reasons for refusing permission to appeal to this court (see paragraph 105, above). That approach was wrong in law. I accept Mr Malik’s submission that the UT has no power to re-make a decision unless it has first identified a material error of law in the decision of the F-tT and then set aside the F-tT’s decision: see, for example, MA (Iraq) v Secretary of State for the Home Department [2021] EWCA Civ 1467 (paragraphs 44-78 and 83-99) and ASO (Iraq) v Secretary of State for the Home Department [2023] EWCA Civ 1282 (paragraphs 43-44, 53-58 and 59).[121]Paragraph 49 of determination 3 could be read as suggesting that an experienced Senior Home Office Presenting Officer invited the UT to decide for itself whether or not there were imperative grounds of public security. I consider it improbable that a Senior Home Office Presenting Officer would have made that suggestion without indicating that the UT could not make that decision unless it(a) had first held that there was a material error of law in determination 2,(b) had set aside determination 2, and(c) had decided to re-make the decision itself, rather than to remit the case to the F-tT (see the authorities I refer to in the previous paragraph). But even if she had made such a suggestion, it could not have conferred jurisdiction where there is none.[122]The UT erred in law in declining to decide whether or not the F-tT erred in law, in circumstances where (for the reasons I have given in paragraph 119, above) the F-tT had erred in law. The UT further erred in law in then purporting, in paragraphs 52-56 of determination 3, to decide for itself whether there were imperative grounds of public security in this case, when it had neither set aside determination 2 nor considered or decided whether it should re-make it or remit the appeal to the F-tT. This was a case in which, the F-tT never having considered the application of the alternative test, there would have been a strong case for remittal. I would allow the appeal on ground 2.

The caveats to this judgment

[123]This judgment does not tacitly approve two aspects of the F-tT’s approach which were not challenged by the Secretary of State in the UT, as the UT recorded. The F-tT did not acknowledge Mr Borges’s first sentence of imprisonment. Those two aspects are only partly linked with that omission, but it is their starting point.[124]First, this judgment does not approve the F-tT’s endorsement of the notion that Mr Borges was integrated in the United Kingdom. At first sight, that view is, to put it mildly, difficult to reconcile with the history of his offences, which were more and more serious, with his three sentences of imprisonment, and with the reasoning in the OASys report in his case. The F-tT did not comply with the duty imposed by regulation 27(8) of the Regulations (see paragraph 44, above), with regard, in particular, to paragraphs 2, 3 and 4 of Schedule 1 to the Regulations. It did not refer to those provisions at all.[125]Nor does this judgment tacitly approve the F-tT’s approach to the continuity of Mr Borges’s residence in the United Kingdom. There are two main difficulties with that approach.[126]First, the F-tT correctly understood that the ten-year period must be counted back from the removal decision. But it misunderstood the decision in B. B does not decide, as the F-tT seems to have thought that it did, that a period of imprisonment immediately before the removal decision counts towards that ten-year period. B deals with a different issue. That issue concerns an EU citizen who has resided as such for 20 years in the host member state before he committed the index offence, and before the removal decision. The issue in B was whether a period of imprisonment after the removal decision broke the integrative links (including more than 10 years’ residence in the host member state as a Union citizen) built up before the commission of the index offence.[127]This case could only resemble B (on the assumption that residence as a third country national family member could count) if Mr Borges could claim to have resided for ten years before the commission of the index offences and the sentence of imprisonment in 2019. Indeed, the F-tT did hold that he had a continuous period of 17 years’ residence before his imprisonment in 2019. That finding is, however, unsound. The F-tT’s approach, at least during the period when Mr Borges was a citizen of India, appears to be inconsistent with the decision of Court of Justice in Onuekwere (to which the Decision referred). Onuekwere is clear that imprisonment breaks the continuity of residence of a third country national family member for the purposes of acquiring a permanent right of residence. If, therefore, a family member’s five-year period of residence is interrupted by periods of imprisonment, he cannot acquire a right of permanent residence. So even if the F-tT was right to think that A’s residence before he became an EEA national could count towards the necessary ten years, and the focus is on the ten years before the index offences, it would be anomalous to treat that period as continuous when it was broken by one period of imprisonment (in 2011-2012), when Mr Borges was a third country national.[128]Moreover, the approach in Onuekwere was applied by the Supreme Court, by analogy, to a person who had been a citizen of an EU member state throughout his residence in the United Kingdom (in Vomero). So the potential alternative reasoning I describe in the previous paragraph would not only be anomalous, but contrary to authority.[129]Finally, in Hafeez, a national of a member state came to the United Kingdom as family member when he was child. Eight years later he was convicted of serious offences and sentenced to seven years’ detention. The Secretary of State made a deportation decision on 8 December 2017. The appellant was released in 2018. At the date of decision, he had spent some three and half of the ten or eleven years he had lived in the United Kingdom in prison. This court held that he did not benefit from the enhanced level of protection against removal because the period in custody did not count positively towards the ten years (paragraph 37 of the judgment of Bean LJ, with whom the other members of the court agreed, for the reasons given in paragraphs 38-43). It was not necessary to decide in that case whether that period also broke any continuity of residence.

The Respondent’s Notice

[130]Mr Borges served a Respondent’s Notice (‘RN’) at a late stage. He sought to argue that the appeal was academic because he had now resided continuously in the United Kingdom for ten years as an EU citizen. In the light of the Secretary of State’s comprehensive answer to that suggestion, Mr Karim did not press this argument in his oral submissions. It is only necessary, therefore, to refer to the first part of that answer. That is that the relevant date for counting the period of residence ends with the deportation decision (regulation 12(4)(a)). I would dismiss the RN.

Disposal

[131]My provisional view is that if my Lords agree that the appeal succeeds on ground 1, the appeal must be allowed, and the case must be remitted. The F-tT has not considered whether or not there are serious grounds of public policy in this case, so it should be remitted to the F-tT for the F-tT to consider that question. If the parties disagree with that approach, they will be invited to make written submissions in support of any alternative suggested approach.[132]I agree with Elisabeth Laing LJ that the appeal should be allowed on Ground 1 for the reasons that she gives and that the case should be remitted for the reasons that she has set out in relation to Ground 2. I would simply add a few words of my own in relation to Ground 1.[133]Under Ground 1, the question is whether a Union citizen who claims enhanced protection from expulsion under Article 28(3)(a) must have been a Union citizen throughout the 10-year residence period to which that provision refers.[134]As Elisabeth Laing LJ has explained, Recital (1) of the Directive makes it clear that the primary and individual right to move and reside freely within the Member States, subject to the terms of the Treaty establishing the EU, is a function of citizenship of the EU.[135]Recitals (23) and (24) of the Directive build upon the importance of EU citizenship in explaining the purpose behind the provisions of the Directive that relate to expulsion, “(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin. (24) Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life…”[136]The key factor referred to in Recital (23) in emphasising the effect of expulsion upon EU citizens and their family members is that it affects “persons who, having availedthemselves of the rights and freedoms conferred on them by the Treaty, have becomegenuinely integrated into the host Member State”. The phrase that I have emphasised focuses attention upon persons who are EU citizens and who benefit from Treaty rights and freedoms, rather than citizens of third countries who may have become integrated into an EU member state in a functional sense or by exercising rights under the Directive itself, but have not done so as EU citizens exercising Treaty rights.[137]As indicated by the first word (“Accordingly…”), that emphasis on the degree of integration as a result of the exercise by EU citizens of Treaty rights carries through to Recital (24). This suggests that the phrase “Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life …” is intended to refer to persons who were EU citizens throughout the period in question.[138]That structure is carried through into the operative provisions of Article 28(3). That provides, “An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:a. have resided in the host Member State for the previous 10 years; orb. are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.”[139]It is notable that the enhanced protection under Article 28(3)(b) is only given to minors who are EU citizens. Minors who are not EU citizens do not qualify for enhanced protection under Article 28(3)(b), even if they have resided in the host Member State since birth or an early age. In my view, it would be anomalous if, not having qualified for enhanced protection throughout their minority because they were not, at the time, EU citizens, such persons could nonetheless count that period of childhood residence towards the ten year period required under Article 28(3)(a) if they were to apply for, and obtain, citizenship of an EU member state upon attaining the age of majority.[140]In passing I would note that the wording of regulation 27(4) contains an additional requirement to that in Article 28(3)(a) of the Directive, namely that the EEA national should have a right of permanent residence under regulation15. That additional requirement was added to the regulation in 2018, after the decision of the ECJ in FV (Italy) v SSHD which held that it was a prerequisite for enhanced protection under Article 28(3)(a) that the person concerned should have a right of permanent residence within the meaning of Article16. I think that the insertion of those words in Regulation 27(4) was intended to clarify or confirm the meaning of that Regulation in light of the ECJ decision, rather than to change its meaning.[141]I agree with both judgments.

Cited in 1 later judgment