Deportation Protections for Long-Resident EU Nationals
In This Article
1. Introduction to Deportation Protections for European (EU) Nationals
2. Deportation Protections for EU Nationals Under UK Law
3. The Bouchereau Test and Deep Public Revulsion
4. Case Background: William George and the Deportation Order
5. Procedural Considerations in the Court of Appeal
6. Court’s Power to Address Unargued Points
7. Court’s Decision: No Deportation Based on Past Conduct Alone
8. Conclusion: The Impact on UK Deportation Law
9. Contact Our Immigration Barristers
10. Frequently Asked Questions
11. Glosssary
12. Additional Resources
1. Introduction to Deportation Protections for European (EU) Nationals
This article will look at deportation protections for European (EU) Nationals. Most foreign nationals can, in principle, be deported from the UK for behaviour that causes “deep public revulsion”, even if the individual concerned causes no risk of reoffending. However, Secretary of State for the Home Department v William George [2024] EWCA Civ 1192 has confirmed an exception to this. For a European national with ten years’ residence, deportation is only justifiable where the individual poses an “actual risk to public security”, however serious their previous conduct.
This case is also notable for a procedural point, discussing whether the Court of Appeal has the power to consider a point either not previously raised or explicitly abandoned, or whether this power applies exclusively to refugee law.
For an introduction to deportation law generally, see our articles: An Overview of Deportation Law; Deportation Appeals and Judicial Reviews; Deportation and Detention.
2. Deportation Protections for EU Nationals Under UK Law
Despite the UK’s exit from the European Union, some European nationals still have substantially higher deportation protections compared to people of other nationalities. This is governed by the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) and essentially depends on how long the individual has been resident in the UK.
A European national who has been in the UK for less than ten years can be removed “on grounds of public policy, public security or public health” (2016 Regulations, s23(6)). However, a European national who has been in the UK for over 10 years can only be removed on “imperative grounds of public security” (2016 Regulations, s27(4)). Such a decision must be proportionate and based exclusively on the personal conduct of the person concerned. The personal conduct must “represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” (2016 Regulations, s27(3),(5)(a),(c)).
The fundamental interests of society are listed (non-exclusively) in Schedule 1 to the 2016 Regulations and include:
“excluding or removing an EEA national or family member of an EEA national with a conviction (including where the conduct of that person is likely to cause, or has in fact caused, public offence) and maintaining public confidence in the ability of the relevant authorities to take such action”.
As the Court of Appeal noted in George, this is a rather vague definition that could justify the deportation of almost anyone [70]. George is therefore significant in that it confirms that this seemingly low threshold is outweighed by the higher “imperative grounds of public security” test.
3. The Bouchereau Test and Deep Public Revulsion
The “deep public revulsion” test comes from the UK’s early years in the European Union, in a 1978 case called Bouchereau (Case 30/77) [1978] 1 QB 732). Bouchereau determined that criminal convictions are not sufficient grounds for deportation in themselves. Instead, they can only be used as evidence of personal conduct which constitutes a present threat to public policy. Generally, for an individual’s presence in the UK to constitute a threat to public policy, the court will have to find that there is a likelihood that the individual will behave the same way in the future. But, in principle, it would be possible for past conduct alone to meet this threshold and therefore serve as grounds for deportation.
In 2018, Bouchereau was confirmed as still binding on non-European nationals by Robinson (Jamaica) v Secretary of State for the Home Department [2018] EWCA Civ 85; [2018] 4 WLR 81. The court noted that behaviour meeting the deportation threshold would have to be “very extreme”, such as “grave offences of sexual abuse or violence against young children” [85]. However, as a non-European national, Ms Robinson was not subject to the same protections as long-resident European nationals, such as William George.
4. Case Background: William George and the Deportation Order
William George is a Belgian national who came to the UK in 2004, at the age of 8. In 2017, he was convicted of manslaughter for his part in a group murder, and sentenced to 12 years imprisonment. In 2018 the Home Office served him with a deportation order, which he successfully appealed to the First Tier Tribunal, then the Upper Tribunal (who remade the decision). The Upper Tribunal found that Mr George was at “absolutely” no risk of future involvement in gang violence [44].
The Home Office subsequently appealed to the Court of Appeal, arguing that despite the unlikelihood of future offending, per Bouchereau they should still be entitled to deport Mr George on the ground of his past conduct alone, because “a brutal killing as part of gang violence is precisely the type of conduct that alone threatens public policy” [64]. The reader may note the Home Office’s citation of public policy, the test for a resident of under 10 years (at 23(6) in the 2016 Regulations), rather than public security, the test for a resident of over ten years (at 27(4) in the 2016 Regulations). However, the Home Office had not argued the Bouchereau point in the First Tier Tribunal, and their counsel had raised then explicitly abandoned it in the Upper Tribunal.
5. Procedural Considerations in the Court of Appeal
The Court of Appeal thus had both a legal and a procedural point to consider:
- Could the Court consider any arguable or obvious point in relation to the case, or only those that the parties actually raised?
- If it could, was it possible to deport Mr George, a European national of over 10 years’ residence, even though he posed low risk of future offending, because his past conduct inspired such “deep public revulsion”?
Before addressing the judgement, it is worth repeating the Court of Appeal’s comment that this matter does not in any way diminish the seriousness of Mr George’s actions. Rather, as the Court put it:
he has been punished for that conduct by the sentence of twelve years’ imprisonment which he received. The question in this case is whether, in addition to that punishment, he should be deported to Belgium (where he has not lived since he was eight). [93]
6. Court’s Power to Address Unargued Points
Was the Court able to consider any arguable point relevant to the case, or only those that the parties in fact raised in proceedings?
This power already exists in refugee cases. Where there is an obvious point of Refugee Convention law in the applicant’s favour, which she has not raised, the judge should apply it on her behalf (R (on the application of) Robinson v Secretary of State for the Home Department & Anor [1997] EWCA Civ 3090 – which is entirely distinct from the Robinson (Jamaica) case on deportation discussed above). The Home Office sought to extend this, arguing that the power exists more broadly outside refugee law “if the interests of justice require” [66]. In their submission, the Bouchereau point was ‘Robinson obvious’ and therefore the Court could consider it despite its previously being abandoned.
Laing LJ, giving the leading judgement, rejected this argument. In her view, ‘Robinson obviousness’ only applied in refugee cases where the UK is bound by international law obligations. However, Underhill LJ, in a short concurring judgement, queried whether dismissing a well-founded appeal because the well-founded point had not been argued would amount to “giving with one hand but taking away with the other” [92]).
Despite the Home Office’s “extremely unimpressive handling of this case” [87], the Court agreed to consider the Bouchereau point due to its importance, although with a stern warning to the Home Office not to “interpret this exceptional indulgence as a green light for future procedural failings of the kind we have seen in this case” [73]. This decision highlights the importance of ensuring adequate deportation protections for individuals facing removal, particularly when their rights may hinge on unraised legal arguments.
7. Court’s Decision: No Deportation Based on Past Conduct Alone
The Court’s answer was a clear “no” – in fact, there was “no merit” to the submission [87]. When Bouchereau was decided, the heightened protection for long resident European nationals was not in place. The single “public policy or public security” (2016 Regulations, 23(6)) test that applied then was different to the test that now applied to Mr George. As a UK resident of over 10 years, he could only be deported on “imperative grounds of public security” (2016 Regulations, 27(4)), a different, narrower and substantially higher threshold. This was defined in another Court of Appeal case, LG (Italy) v Secretary of State for the Home Department [2008] EWCA Civ 190, as:
““not simply a serious matter of public policy, but an actual risk to public security so compelling that it justifies the exceptional course of removing someone who … has become integrated by many years’ residence in the host state” (para. 32 (5)).” (quoted at [89] of George).
8. Conclusion: The Impact on UK Deportation Law
The Home Office, then, cannot rely on a long-resident European national’s past conduct alone to justify deportation, no matter how grave the behaviour in question. Instead, they must show that the individual poses a serious risk to public security in the future, which in most cases will be a heavy burden indeed. However, a non-European national, or a European national of less than 10 years residence, is still vulnerable to deportation on the grounds of “deep public revulsion” to their previous conduct, should this be extreme enough to overcome the Bouchereau threshold.
Even if this threshold is met, an individual with a criminal conviction may still be able to challenge their deportation where this would be “unduly harsh” to a qualifying partner or child, or there are “very compelling circumstances”. For more information, see our article on the Supreme Court decision clarifying these tests: UK Supreme Court Considers Deportation (Again).
9. Contact our Immigration Barristers
For expert advice and assistance with human rights applications and appeals against deportation, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.
