Many people believe that once they’ve lived in the UK for over 10 years, especially with EU citizenship, their immigration status is secure. But the reality is far more complex. The UK immigration system makes clear distinctions between legal status, length of residence, and criminal history—and any misstep can put even long-term residents at risk of deportation.
In this article, we look at the case of Mr Borges, a Portuguese national who had lived in the UK since childhood, but whose criminal convictions eventually led to his removal order being upheld by the Court of Appeal. His case raises important questions: does EU citizenship always protect you from deportation? Can long residence offset a serious criminal record? What exactly are the limits of protection under EU law?
If you have an EU background, a complicated immigration history, or past convictions, this case is worth your attention.
Background of SSHD v Borges
Mr Borges, born in India in 1988, came to the UK in 2002 and received a permanent residence card in 2007. In 2008, at age 19, he was convicted of dangerous driving and handling stolen goods. In 2010, he was convicted again for driving offences. Just a year later, in 2011, he was sentenced to 21 months for two robberies, but successfully appealed a deportation decision in 2012. That same year, he received another warning letter. In 2014, he gave up his Indian passport and obtained a Portuguese one. On 3 June 2019, he was convicted of burglary, aggravated burglary, and drug possession, and sentenced to six years.
After his release in October 2022, his EU Settlement Scheme application was refused on suitability grounds, and the Secretary of State of the Home Department (SSHD) made a formal deportation order in November 2022.
Mr Borges appealed, arguing that under Article 28(3) of Directive 2004/38, as an EU citizen who had resided continuously in the UK for 10 years, he qualified for the highest level of protection against removal. The First-tier Tribunal (F-tT) allowed his appeal. The SSHD appealed to the Upper Tribunal (UT), which refused permission to appeal in 2024. The SSHD then applied to the Court of Appeal (the Court).
Legal Issues & Court Analysis
The SSHD’s appeal was based on two grounds: firstly, the UT erred in holding that Mr Borges enjoyed the highest level of protection against removal based on his residence during his time as a non-EU national toward the 10-year threshold. Furthermore, even if Mr Borges qualified for such protection, there were imperative grounds of public security to justify removal.
The Court of Appeal, with permission from the Lord Justice, allowed the appeal and analysed two grounds and made the submissions and decisions as below.
Ground One
On Ground one, whether Mr Borges enjoys the eligibility for enhanced protection, the Court held that Regulation 27(4), interpreted in light of the EU Directive, requires a person to have held EU citizenship throughout the 10-year residence period, not merely as a family member of one. The distinction between primary rights (EU citizens) and derivative rights (non-EU family members) is fundamental, as Article 28(3) must be read in light of related provisions and case law, which emphasize that derivative rights (as family members) differ fundamentally from primary rights of EU citizens. Borges did not become an EU citizen until 2014, which was only shortly before his removal decision, and his earlier residence was as a non-EU family member.
Furthermore, time spent in prison interrupts continuous residence unless strong integrative links are shown, which were not established in this case. Therefore, Borges was not entitled to the highest level of protection. The Court sided with the SSHD on ground one.
Ground Two
On ground 2, whether the tribunals errored in public security assessment, the Court also found that, The F-tT erred in law by not clearly determining whether Borges was entitled to enhanced protection before applying the “imperative grounds” test.
It further erred in assuming jurisdiction to re-assess whether such grounds existed without first identifying a legal error in the SSHD’s decision. The UT compounded this error by making its own evaluation without first setting aside the F-tT’s decision. Therefore, the UT exceeded its jurisdiction. Further, the court held that the tribunal failed to fully engage with Borges’s criminal history, repeated offending, and limited evidence of rehabilitation.
Although Mr Borges had lived in the UK for over two decades and held an EU passport, the court ultimately ruled that he was not entitled to the highest level of protection under EU law. Because he only became an EU citizen partway through his time in the UK, and had multiple criminal convictions with time spent in prison, he was found not to meet the requirement of 10 years’ continuous residence as an EU citizen. The court also agreed that his pattern of offending posed a genuine threat to public security. The Court allowed the SSHD’s appeal on both grounds and the case was remitted for proper reconsideration.
Our comments
Mr Borges’s case is a reminder that immigration status isn’t a guarantee—especially when serious criminal records are involved. It’s not just about how long you’ve lived in the UK, but whether your stay has been legal and whether you’ve followed the rules.
When applying for settlement, the Home Office will always look at the applicant’s character and whether the presence is in the public interest. This means that even if you’ve been in the UK for many years, hold settled status, or have EU citizenship, a criminal record can still put you at risk of removal.
If you have previous convictions or a complex immigration history, seeking legal advice early is essential as it allows you to clearly understand your legal position, assess potential risks, and avoid serious consequences.
If you have the above concerns, please do not hesitate to contact Lisa’s Law. Our professional and experienced legal team would be happy to support you with clear, practical advice tailored to your needs.
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