When can an EU national be deported?

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In cases where an EU national commits a crime in the UK and is sentenced to a term in jail, they will most likely be subjected to deportation proceedings.

However, there are security measures for EU nationals (and British citizens in the EU), they are contained in the European Directive (2004/38/EC), which is brought into domestic law by the Immigration (European Economic Area) Regulations 2016.

It is worth noting that the protections offered to EU nationals are significantly stronger than those available to their on-European counterparts.

It would be unusual for an individual who has received a 4-year sentence for committing a serious crime after leaving university, to win an appeal against deportation if he or she was European, and to lose it if he or she was a non-European criminal.

Human rights provision does apply to European cases however, they are rarely used due to the relatively low level of protections they offer compared to European Regulations.

There are certain levels of protection for European nationals who commit crime in the UK:

  1. The basic protection, for those who have not acquired a right of residence;
  2. A mid-level for those that did; and
  3. A third level, offering protections for those who have been in the UK for a continuous period of 10 years prior to the making of the deportation decision.

The basic protection for those European nationals who had not yet acquired permanent residence in the UK, the relevant principles to be considered when a deportation decision was being contemplated are contained in Regulations 21(5):

  • The decision must comply with the principle of proportionality;
  • The decision must be base exclusively on the personal conduct of the person concerned;
  • The personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
  • Matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
  • A person’s previous criminal convictions do not in themselves justify the decision

In other words, if a EU national does not have permanent residence the Home Office must show that:

“The individual’s personal conduct… represent[ed] a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.”

However, this has been updated by the government to include more “leeps”. In a nutshell, the government wanted to deport individuals to persuade other foreign nationals to avoid crime. Luckily, under EU law this is not permissible as was shown in the case of Straszewski v SSHD [2016] 1 WLR 1173.

In regard to permanent residence holders (i.e. resided in the UK for 5 years or more) the Secretary of State must show that the risk they present to the general population is higher than those who do not have permanent residence. The test appears in the updated Regulation 27(3). It states that a deportation decision cannot be made in respect of a person with permanent residence except on serious grounds of public policy and public security.

However, the downside is that there is not a lot of legal guidance in regard to what amounts to serious grounds of public policy and public security. The previously mentioned test still must be met however, the ‘crime’ must be on a greater scale of seriousness in order to justify expulsion.

For long term residents who have resided in the UK for at least 10 years or more the Secretary of State must show that there are imperative grounds which can justify the deportation decision.

In the case of Mg and VC (Ireland) [2006] UKAIT 00053 the Tribunal considered that this latest test “…is at the very highest level of the calculus introduced by the 2006 Regulations and Directive 2004/38/EC”.

The imperative grounds test presents a very high threshold, there must be a compelling risk to public security but be demonstrated. The Court of appeal said that ‘risk to the safety of the public or section of the public’ seemed reasonably consistent with the ordinary meaning of the test. The Court seemed to be of the opinion that the severity of the offence committed was not necessarily one to make removal ‘imperative’.

It will be very interested to see whether European nationals might be treated any differently in the upcoming years. Should the assumption of integration built into the European deportation regulations – which underpin them – be brought forward, and count in favour of European nationals in the future deportation proceedings?

For the present time European nationals continue to benefit from an elevated level of protection from deportation compared to their non-European foreign criminal counterparts, broadly connected to the time they have spent in the country, and with an eye on whether or not any periods of absence have lessened the extent to which they are integrated in the UK society when it comes to deciding the applicable level of protection in each case.

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Tags: EU EU Citizens EU law European Union Immigration

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