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The deportation of EEA nationals: distinguishing a right from a privilege

The circumstances under which an EEA national in the UK can be deported are a great deal narrower than those under which a non-EEA national can be deported. Section 3(5) of the Immigration Act 1971 states that a person who is not a British citizen can be deported from the United Kingdom if the Secretary of State deems their deportation to be ‘conducive to the public good’. What exactly is meant by this phrase will be addressed in a future post.

Regulation 21 of the the EEA Regulations 2006 – Deportation of EEA Nationals

Regulation 21 of the the EEA Regulations 2006 provides greater protection for EEA nationals. The level of this protection does, however, vary depending on how long the EEA national has been in the UK.

An EEA national who has been in the UK for less than 10 years, and does not have a right of permanent residence, can be deported if the decision is taken on ‘grounds of public policy, public security or public health’. If an EEA national has a right of permanent residence, however, the justification needs to be stronger. In these cases, deportation must only be on ‘serious grounds of public policy or public security’. A further level of protection is afforded to those EEA nationals who have resided in the UK for a continuous period of ten years prior to the date of the decision. In this case, a deportation decision should not be taken except on ‘imperative grounds of public security’.

Case-Law – Deportation or EEA Nationals

The recent decision of the Inner House of the Court of Session in Goralczyk (AP) v The Secretary of State for the Home Department [2018] CSIH 60  addressed the standards which should be met in making a decision to deport an EEA national with permanent residence on the basis of criminal convictions. In particular, it outlines the importance of the First Tier Tribunal following the decision making process mandated the Regulations. The Regulations state that the decision must be taken in accordance with the following principles:

  1. the decision must comply with the principle of proportionality;
  2. the decision must be based exclusively on the personal conduct of the person concerned;
  3. the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
  4. matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
  5. a person’s previous criminal convictions do not in themselves justify the decision.

In order to decide whether a decision was proportionate, the decision maker must clearly identify the objective behind the deportation, and how likely it is that deportation will mean that the objective is fulfilled. In this case, the objective was to prevent the Appellant reoffending. Yet the test did not end here. The threat of reoffending must also be ‘genuine, present and sufficiently serious’. Therefore it is the offences which might occur in the future which are of concern, not only those in the past. This is a strict test to meet, and in this case it was found that the Appellant did not meet it, and as a result should not be deported.

This case highlighted that it is an error of law to take the same approach to the deportation of EEA citizens as to non-EEA citizens. In doing so, it drew attention to the value of the rights granted to EEA citizens in the UK. Lord Brodie made it clear that these rights were at the root of the decision, stating that ‘It is one thing when the state seeks to withdraw a permission or privilege. It is a very different matter when it seeks to interfere with an individual’s rights.’ It is, then, all the more concerning that the future existence of such rights for EEA citizens is currently so precarious.

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For expert advice and assistance in relation to the proposed deportation of an EEA national, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form below.


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