Deportation rights of EU citizens

In the recent decision of the case of Goralczyk v the Secretary of State for the Home Department [2018] CSIH 60, the Inner House of Court of Sessions, confirmed that there are different procedures and grounds for the deportation of EU citizens compared to other migrants.

Mr. Goralchik received a deportation order after he was charged with drink driving as well as with two cases of drug offenses. During this time Mr. Goralchik was living in the United Kingdom for nine years. He was in a relationship with an EU citizen and had two children, who were born in Britain. Moreover the report of criminal justice social work put Mr Goralczyk at “low risk” of re-offending. Nevertheless, Home Office considered the crimes committed by him had a sufficient  ground for deportation and he was issued with the deportation order. However,  Mr. Goralchik appealed the decision of the Home Office. The Upper Tribunal considered the fact that his deportation will significantly affect his family in the UK, but at the same time classified his crimes as “of the gravest significance” and dismissed the appeal.

When the case came to the Inner House, Mr. Goralchik's defense was based on the fact that his offences does not have “serious grounds of public policy”. After an hour and a half, The Inner Court found that the Upper Tribunal was wrong in its decision and  there was  clear error of law in its finding.

In accordance with Regulation 21 (3) of the 2006 EU Regulation, as well as Rule 27 (3) of the EU Regulation 2016, an EU citizen who has a permanent residence status can be deported only if there are “serious grounds of public policy or public security”.  At the same time, all cases should comply with proportionality principle and the fact of the appellant's right to free movement must be taken into account. The Inner House ruled that the Upper Tribunal could not adequately explain why Mr. Goralchik poses a risk to the public interest, especially when the social work report found a low risk of re-offence.

This important decision obliges the First Tier Tribunal to strictly follow and comply with EU Regulations. It also emphasizes the particular significance of the fact that the appellant who has EU citizenship, since their free movement is a fundamental aspect of the EU legislation. In deportation cases concerning EU citizens Home office and courts can not use the same broad-brush as they do to other migrants.

Posted on Sep 18, 2018.

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