UTIAC 1. Pending any further clarification of the law by the Court of Justice, the relationship between residence rights and periods of imprisonment should be applied by judges of the Immigration and Asylum chambers as follows:
i. Permanent residence within the meaning of Articles 16 to 18 of the Citizens Directive requires the claimant to be continuously lawfully resident under EU law, that is to say is residing in the host state as a qualified person or the family member of a qualified person for a period of five years.
ii. In determining whether permanent residence is acquired voluntary absences from activities that make a person a qualified person may break the continuity of residence applying the provisions of Article 16 (3). Periods of enforced military service do not break the continuity of such residence.
iii. Periods of penal custody following conviction and sentence and periods of remand in custody that are followed by conviction and a sentence of imprisonment do not contribute to the acquisition of permanent residence by a claimant who was a qualified person shortly before the period of detention. The claimant is not employed, self sufficient etc during these periods and imprisonment is not considered as contributing to the claimant’s integration in the host state.
iv. Periods of wrongful detention, pre-trial remand that lead to an acquittal or a non-custodial sentence, or periods of immigration detention can count towards permanent residence if the claimant qualifies before and after the detention in question.
v. If a cumulative period of five years residence as a qualified person has been achieved by the claimant discounting periods of penal custody, it is uncertain whether such a term will break the continuity of residence for the purpose of acquiring the right of permanent residence. By reference to the developing principles relating to ten years residence, the indications are that it may not do so.
vi. If permanent residence has been acquired but a custodial sentence is served in the period of residence between years five and ten, then the period of residence in prison may be counted towards the ten years if the person concerned remains integrated with the host state by reason of home, employment, family and social nexus.
vii. Once a period of ten years lawful residence in the host state has been acquired, a custodial sentence does not break the continuity of residence up to the date of the decision to deport.
2. The Court of Justice’s reference in Case C-145/09 Land Baden-Wurtemberg v Tsakouridis [2011] CMLR 11 to genuine integration, should mean people who have resided lawfully in the Host state for five years and so have the right to permanent residence, rather than people who have resided for ten years.
3. For those who at the time of determination are or remain a present threat to public policy but where the factors relevant to integration suggest that there are reasonable prospects of rehabilitation, those prospects can be a substantial relevant factor in the proportionality balance as to whether deportation is justified. If the claimant cannot constitute a present threat when rehabilitated, and is well-advanced in rehabilitation in a host state where there is a substantial degree of integration, it may well very well be disproportionate to proceed to deportation.
At the other end of the scale, if there are no reasonable prospects of rehabilitation, the claimant is a present threat and is likely to remain so for the indefinite future, it cannot be seen how the prospects of rehabilitation could constitute a significant factor in the balance. Thus, recidivist offenders, career criminals, adult offenders who have failed to engage with treatment programmes, claimants with propensity to commit sexual or violent offences and the like may well fall into this category.
What is likely to be valuable to a judge in the immigration jurisdiction who is considering risk factors is the extent of any progress made by a person during the sentence and licence period, and any material shift in OASys assessment of that person.
Blake J, Warr UTJ
[2013] UKUT 316 (IAC)
Bailii
England and Wales
Immigration
Updated: 17 November 2021; Ref: scu.513568