Deportation: acquisition of right of permanent residence

The Supreme Court’s previous conclusion, that the respondent Italian national had not acquired a right of permanent residence by the date of the appellant Secretary of State’s decision to deport him, had been correct, despite the Court of Justice of the European Union’s statement in a preliminary ruling. Accordingly, the Supreme Court allowed the appellant Secretary of State’s appeal and declared that neither art 28(2) nor (3) of Council Directive (EC) 2004/38 had applied to the respondent as at the date of the Secretary of State’s decision to deport him.

In 1985, the respondent Italian national moved to the UK. Between 1987 and 2001, he had received several convictions in the UK, which had resulted in short terms of imprisonment. In 2002, he was sentenced to eight years’ imprisonment for manslaughter. In July 2006, the respondent was released on licence, but re-arrested a short time later and was subsequently detained under immigration powers. 

In 2007, the appellant Secretary of State determined to deport the respondent, under regs 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006, SI 2006/1003. The respondent was detained with a view to deportation until December 2007. He subsequently committed and was convicted of further offences, two of which resulted in custodial sentences. 

The respondent challenged the deportation decision before the Asylum and Immigration Tribunal. On appeal, the Court of Appeal, Civil Division, accepted his submission that the requirement in art 28(3)(a) of Council Directive (EC) 2004/38, that an EU citizen had resided in the host member state for the previous ten years, involved an overall assessment of the degree of integration at the date of the decision to deport, that, in principle, there had to have been ten continuous years of residence, but that a period of imprisonment immediately preceding the decision to deport would not necessarily mean that prior integration was lost to a degree depriving the EU citizen of enhanced protection under art 28(3)(a). 

On the Secretary of State’s appeal, the court concluded that the respondent had not acquired any right of permanent residence before the date of the decision to deport him and that his case had to be that  an EU citizen with no right of permanent residence might nevertheless acquire a right to enhanced protection under art 28(3)(a). However, it referred a number of questions of EU law to the Court of Justice of the European Union (the CJEU) for a preliminary ruling, including whether enhanced protection under art 28(3)(a) depended upon the possession of a right of permanent residence within arts 16 and 28(2) (see [2017] 1 All ER 999). 

The CJEU made the preliminary point that, as it did not have all the information necessary in order to assess the merits of the premise of the court’s question, namely that the respondent did not have a right of permanent residence in the UK, it had to be assumed, for the purposes of the question, that it was well founded. It then concluded that art 28(3)(a) had to be interpreted as meaning that it was a prerequisite of eligibility for the protection against expulsion provided for in that provision that the person concerned had to have a right of permanent residence within the meaning of arts 16 and 28(2) of that Directive (see [2018] All ER (D) 61 (Apr)). 

The court was now in a position to give its decision on the appeal. 

Whether the court had correctly concluded that the respondent had not acquired a right of permanent residence in the UK by the date of the decision to deport him, in particular, given the CJEU’s statement.

The preliminary observations made by the CJEU did not set out any criticism of the reasoning which had led the court to its conclusion. The CJEU had properly confined itself to answering the question referred to it. It was notable that the premise which the CJEU had said that it had been unable to assess had not been the same as the court’s conclusion. That conclusion had been that the respondent had not acquired any right of permanent residence before the date of the decision to deport him. The premise which the CJEU had assumed to underlie the reference had been different, namely, that the respondent did not have such a right of permanent residence in the UK, that was to say, that he did not presently have such a right. The court had expressed no view as to whether the respondent presently had such a right. That question had not been, and was not, before it. Therefore, the CJEU’s observation, that it had not had all the information necessary in order to assess whether the respondent presently had a right of permanent residence, did not undermine the court’s conclusion to any extent (see [33] of the judgment). 

Further, the period of imprisonment for more than two years which the respondent had undergone by 30 April 2006 had prevented him from acquiring a right of permanent residence on that date, or at any subsequent time prior to 23 March 2007, when the decision to deport him had been taken. The necessary period of five years’ continuous legal residence could not have begun any earlier than 3 July 2006, when he had completed the custodial part of his sentence, and would depend on his fulfilling the conditions for legal residence laid down in the Directive. If five years’ continuous legal residence had not been completed by the time of the periods of imprisonment in 2012, those periods would not count towards the five years required and would interrupt the continuity of residence. Accordingly, the court’s previous conclusion, that the respondent had not acquired a right of permanent residence by the date of the decision to deport him, had been correct (see [45], [46] of the judgment). 

It would be necessary for the Upper Tribunal (Immigration and Asylum Chamber) (the UT), when the case was remitted to it, to consider, not only whether the respondent had acquired a right of permanent residence since the date of the decision to deport him and, if so, the implications of his having done so, but in any event whether there were still grounds of public policy or public security, within the meaning of art 28(1) of the Directive, on the basis of which his expulsion might be justified (see [47] of the judgment). 

It would be declared that neither art 28(2) nor (3) of the Directive had applied to the respondent as at the date of the Secretary of State’s decision to deport him and the respondent’s appeal against that decision would be remitted to the UT to be reconsidered (see [48] of the judgment). 

Secretary of State for Work and Pensions v Lassal (Child Poverty Action Group intervening): C-162/09 [2011] All ER (EC) 1169 considered; Secretary of State for Work and Pensions v Dias: C-325/09 [2012] All ER (EC) 199 considered; Onuekwere v Secretary of State for the Home Department: C-378/12 [2014] All ER (D) 125 (Jan) considered; FV (Italy) v Secretary of State for the Home DepartmentB v Land Baden-Württemberg [2018] All ER (D) 61 (Apr) considered.

Decision of Court of Appeal, Civil Division,  [2013] 1 All ER 1180 Reversed.

Robert Palmer QC (instructed by the Government Legal Department) for the Secretary of State.

Raza Husain QC, Takis Tridimas and Nick Armstrong (instructed by Luqmani Thompson & Partners) for the respondent. 

Karina Weller - Solicitor (NSW) (non-practising).