Article on Castro (Appendix EU, “deportation order”) [2024] UKUT 393 (IAC)

Article on Castro (Appendix EU, “deportation order”) [2024] UKUT 393 (IAC)

1. Introduction

In Castro (Appendix EU, “deportation order”) [2024] UKUT 393 (IAC), the Upper Tribunal (Immigration and Asylum Chamber) grappled with complex issues concerning the definition of “deportation order” in Annex 1 to Appendix EU of the Immigration Rules. The crux of the case was how to interpret and apply the EU Settlement Scheme (EUSS) rules in circumstances where an individual’s offending spanned both pre- and post-“specified date” conduct (i.e., offences committed before and after 31 December 2020).

This case also examined the interplay between domestic powers to deport under the Immigration Act 1971 and the continuing need to consider EU law protections for conduct predating Brexit’s transition period. Additionally, the Tribunal analysed whether the appellant could rely upon the more stringent “serious grounds of public policy” test (commonly seen under regulation 27 of the EEA Regulations) despite not having strictly established permanent residence.

At stake was whether the Home Office had properly exercised its powers to deport, and whether refusing the appellant’s application under the EU Settlement Scheme was lawful. Ultimately, the Tribunal set aside the First-tier Tribunal’s decision in part, remitting certain issues for reconsideration—while clarifying the correct approach to Appendix EU for future cases.

2. Factual Background

Appellant’s Personal History

•The appellant, Mr Jose Paulo Castro, is a Portuguese national. He initially arrived in the United Kingdom in January 2014.

•Between 2016 and 2022, Mr Castro amassed multiple convictions, including crimes such as criminal damage, assaulting emergency workers, and exposure. Several prison sentences of varying lengths ensued, as well as restraining orders.

•In 2020, after the end of the Brexit transition period was in sight, the appellant made an application for status under the EU Settlement Scheme (EUSS). That application was initially rejected for failure to provide the required identity document, leading him to reapply in 2021.

•Meanwhile, due to his continuing criminal history, the Secretary of State decided to deport him, considering his presence in the UK to be “conducive to the public good” under domestic deportation powers.

The Decisions under Challenge

1.Refusal of Human Rights Claim and Making of a Deportation Order

•On 18 October 2021, the Secretary of State refused Mr Castro’s human rights claim and proceeded with deportation on the basis that he was a “persistent offender.”

•The appellant had argued that his family and private life in the UK, as well as his mental health needs, weighed against deportation. However, the Home Office concluded that none of these considerations outweighed the public interest in removing him.

2.Refusal of the EUSS Application

•Also on 18 October 2021, the Secretary of State refused Mr Castro’s fresh EU Settlement Scheme application.

•The refusal was predicated on the conclusion that Mr Castro fell foul of the “suitability” provisions in paragraph EU15(1)(a) of Appendix EU, because he was subject to a “deportation order” as defined in Annex 1 to Appendix EU.

•Crucially, the Home Office relied on the EEA Regulations—specifically regulation 27—to justify that his pre-specified-date conduct amounted to a threat to public policy, and thus the deportation decision was warranted.

First-tier Tribunal Proceedings

•In a decision promulgated on 7 February 2024, the First-tier Tribunal (Judges Loke and Rai) allowed Mr Castro’s appeals against both the deportation order (and the refusal of his human rights claim) and the refusal of his EUSS application.

•The Tribunal concluded that the Secretary of State had misconstrued parts of Appendix EU and the EEA Regulations. It found that the appellant’s deportation was not justified on “serious grounds of public policy” and that the refusal of the EUSS application was consequently unlawful.

The Secretary of State appealed to the Upper Tribunal, challenging specific elements of the First-tier Tribunal’s reasoning.

3. Legal Framework

A. Appendix EU – Suitability and the Definition of “Deportation Order”

Under paragraph EU15 of Appendix EU, an EUSS application “will be refused on grounds of suitability where any of the following apply at the date of decision”:

•EU15(1)(a): The applicant “is subject to a deportation order or to a decision to make a deportation order.”

Annex 1 to Appendix EU defines “deportation order” in three subsections. Of particular relevance in Castro is the limb in sub-paragraph (b), which states:

(b) An order made under section 5(1) of the Immigration Act 1971 by virtue of section 3(5) or 3(6) of that Act in respect of:

(i) conduct committed after the specified date; or

(ii) conduct committed before the specified date, where the Secretary of State has decided the deportation order is justified on grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations …

The specified date, for these purposes, is 31 December 2020 (23:00).

B. Domestic Deportation Powers

•Section 3(5)(a) of the Immigration Act 1971 allows for the deportation of an individual whose presence is deemed “not conducive to the public good.”

•The Secretary of State may make a deportation order under section 5(1) of the same Act in conjunction with section 3(5).

C. EEA Regulations and Public Policy

While free movement ended on 31 December 2020 for most EEA nationals, transitional provisions and the Withdrawal Agreement preserve certain protections for those with pre-specified-date conduct. Regulation 27 of the (now largely saved) Immigration (European Economic Area) Regulations 2016 includes guidance on expelling an EEA national only on grounds that are proportionate and “justified on serious grounds of public policy” if they have acquired permanent residence.

4. The Issues Before the Upper Tribunal

The Upper Tribunal identified four broad grounds of appeal advanced by the Secretary of State, although one of them was ultimately not pursued. The key questions included:

1.Interpretation of “Deportation Order” in Appendix EU

•Could the Home Office rely exclusively on post-specified-date conduct to satisfy sub-paragraph (b)(i) of Annex 1, despite the fact that it had also referred to pre-specified-date conduct?

•Or, in a case involving both pre- and post-specified-date offending, must the Secretary of State show that the entire decision satisfies both sub-paragraph (b)(i) and (b)(ii), including compliance with regulation 27?

2.Whether the Appellant Met the More Generous Standard of Protection

•The First-tier Tribunal concluded that Mr Castro had accrued five years’ continuous residence before 2020 and thus fell within the category needing “serious grounds of public policy.” The Secretary of State argued this created an unintended “enhanced protection.”

3.Whether Mr Castro Was a “Persistent Offender” and Posed a “Serious Threat”

•The Tribunal had to address whether the First-tier Tribunal erred in concluding that by January 2024, Mr Castro’s history no longer rendered him a persistent offender or a present, serious threat to public policy.

•A factual error arose in the First-tier Tribunal’s reference to the appellant not having offended for “two years,” whereas in reality it had been closer to eighteen months since his latest offence.

4.Human Rights Considerations

•If the deportation order was defective under the EUSS or did not meet the required public policy threshold, the removal would not be “in accordance with the law” for Article 8 purposes.

5. The Upper Tribunal’s Analysis and Findings

A. Construction of “Deportation Order” in Annex 1

A core question was how to interpret paragraph (b)(i) and (b)(ii). The Upper Tribunal emphasised that if an order relies on both pre- and post-specified-date conduct, one cannot simply say that satisfying sub-paragraph (i) for the post-date conduct alone is enough. Otherwise, the protective aspects of sub-paragraph (ii)—which requires the decision be justified under regulation 27—could be circumvented, undermining the transitional safeguards for pre-2021 conduct.

The Upper Tribunal thus held that where the Secretary of State genuinely relies on offending from both periods, then both limbs must be engaged “and/or.” The relevant portion of the judgment states:

“The time period of the conduct relied upon by the Respondent will dictate whether BOTH sub-paragraph (i) and (ii) will apply (if conduct committed both before and after the specified date is relied upon) or whether paragraph (i) or (ii) will apply (if only conduct committed either before or after the specified date is relied upon).”

This finding was deemed consistent with the broader policy goals of the EUSS and the Withdrawal Agreement, ensuring that pre-Brexit conduct is not automatically treated under purely domestic deportation rules.

B. Permanent Residence and “Enhanced Protection”

The Secretary of State argued that it was “absurd” to grant the appellant a higher level of protection if he had not met the formal permanent residence criteria under EU law. However, the Upper Tribunal found no legal error in the First-tier Tribunal’s approach, remarking that the respondent’s own drafting of Appendix EU expressly contemplates a scenario in which regulation 27 is applied to individuals regardless of whether they strictly held a permanent residence right under the old EEA Regulations.

Hence, although it might appear more generous than prior EU law requirements, that generosity stems from how Appendix EU was crafted and how it defines the “deportation order” concept.

C. “Persistent Offender” and Assessment of Risk

The Tribunal partially upheld the Secretary of State’s complaint regarding the factual error made by the First-tier Tribunal, which had repeatedly referred to a supposed “two-year” period free of offending. In reality, it was closer to eighteen months or less since the appellant’s most recent criminal conduct. Given the appellant’s history of recidivism, the difference between 24 months and 18 months was significant enough that it might materially affect the risk assessment. The Upper Tribunal set aside the First-tier Tribunal’s findings regarding the appellant’s present threat, explaining:

“We find that in this case, it cannot be found that the factual error was not material … particularly given the other indicators that the Appellant continued to pose a risk.”

While the Secretary of State also alleged that the Tribunal failed to appreciate an “escalation in seriousness,” the Upper Tribunal was more hesitant to accept that argument, noting that any escalation must be carefully evaluated. Still, because the factual error in the timescale tainted the Tribunal’s broader balancing exercise, the assessment of risk to the public had to be revisited.

D. Article 8 ECHR

Because the First-tier Tribunal’s conclusion on Article 8 was intimately linked to its findings under the EUSS and risk of harm, the Upper Tribunal set aside the human rights conclusion as well. If Mr Castro was not entitled to rely on the “pre-specified-date” protections—or if the Tribunal’s risk assessment was incomplete—then the proportionality test under Article 8 would also need a fresh determination.

6. The Outcome and Directions

The Upper Tribunal set aside the First-tier Tribunal’s decision and listed the appeal for a future hearing. The Tribunal gave directions for further evidence, including arrangements for Mr Castro (who had been deported to Portugal) to provide oral testimony, either remotely or by returning to the UK (if permitted).

The “core question” for the remitted hearing will be whether the Home Office can satisfy the serious-threat threshold under regulation 27 for the conduct pre-dating 31 December 2020, and whether the post-specified-date offences suffice to make his presence “not conducive to the public good” under domestic law. Only after that determination is made can the Tribunal properly decide whether refusing the EUSS application was lawful and whether removing Mr Castro breaches Article 8.

7. Significance of the Decision

1.Clarification on Mixed Pre- and Post-Specified-Date Conduct

•The most critical point is the Upper Tribunal’s clear ruling that if an individual’s deportation order relies on conduct spanning both before and after 31 December 2020, the Secretary of State cannot simply rely on post-specified-date powers alone. The entire factual matrix triggers both sub-paragraphs (b)(i) and (b)(ii) of the “deportation order” definition in Annex 1, thereby importing the requirement to justify the pre-specified conduct under regulation 27.

2.Preservation of Transitional Protections

•The judgment highlights how, despite Brexit, certain protective principles from EU law remain relevant under the EUSS for conduct predating the end of the transition period. Practitioners should note that an EEA national’s past, pre-2021 offences may still require the Secretary of State to demonstrate that deportation is justified on grounds of “public policy” and, where applicable, to consider whether “serious grounds” are required if the individual meets continuity requirements.

3.Factual Accuracy in Persistent Offender Assessment

•The Upper Tribunal underscored that even a seemingly minor numerical error in calculating the period since an offender’s last criminal act can be critical. Decision-makers and tribunals must remain precise when evaluating risk profiles and “genuine, present and sufficiently serious threat” arguments.

4.Implications for Article 8

•Where a deportation order is found not to be in accordance with the law—for instance, if it contravenes regulation 27 or Appendix EU—Article 8 ECHR arguments gain much stronger footing. This case confirms that if the Secretary of State’s approach to deportation is flawed under EU Settlement Scheme rules, the proportionality and public interest balancing exercise will likely tilt in favour of the individual.

5.Guidance for Practitioners

•Lawyers and advisers representing EEA nationals with both pre- and post-2021 offending should review this judgment carefully. It provides a roadmap on how to challenge Home Office decisions that wrongly conflate distinct time periods or fail to apply regulation 27 to pre-specified-date offences.

6.Future Developments

•Given that Castro ultimately invites a remaking of the decision, further Upper Tribunal or appellate judgments may refine the law. The ongoing evolution of policy guidance also remains important, as the Secretary of State updates her instructions in light of changing case law and Brexit-related transitional provisions.

8. Conclusion

Castro (Appendix EU, “deportation order”) [2024] UKUT 393 (IAC) stands out as a noteworthy decision that reaffirms the significance of transitional protections and the detailed drafting within Appendix EU. The Upper Tribunal’s insistence on a correct reading of the “deportation order” definition—and its ruling that pre- and post-specified-date conduct must each be dealt with under the appropriate legal standard—will shape how future deportation appeals involving EEA nationals are argued and decided.

While the Tribunal confirmed that conduct after 31 December 2020 alone may be enough to refuse an EUSS application if it deems someone’s presence not conducive to the public good, the key message is that the Secretary of State cannot casually sidestep the special protections afforded for earlier offending. The importance of accuracy in the factual matrix, especially concerning persistent offending and escalating seriousness, also permeates the judgment.

As the appeal moves forward to a remitted hearing, the ultimate outcome for Mr Castro remains uncertain. However, the case offers valuable lessons to practitioners and appellants alike, ensuring that correct interpretation of the EUSS rules and careful assessment of an individual’s criminal conduct—both before and after Brexit—will be the guiding principle in determining the lawfulness of deportation decisions.

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