1. In order to acquire a right of permanent residence under regulation 15 of the Immigration (European Economic Area) Regulations 2006 and the Citizens Directive 2004/38/EC a person had to show five years lawful residence within the meaning of EU law.
2. On the present state of the authorities, a period in prison does not count towards the acquisition of the five years residence.
3. Once a permanent right of residence is acquired it is not lost save by an absence from the United Kingdom for a period in excess of two consecutive years. The learning of the Court of Justice of the European Union suggests that the continuity of residence for the purpose of regulation 21(4) (10 years residence) is not broken by a period of imprisonment.
4. In the circumstances it seems probable that a period of imprisonment should not be equated to voluntary unemployment that may lead to loss of worker status and the loss of continuity of lawful residence for the purpose of acquiring the right of permanent residence and the decisions of the AIT in LG and CC (EEA Regs: residence; imprisonment; removal) Italy [2009] UKAIT 00024 and the UTIAC in SO (imprisonment breaks – continuity of residence) Nigeria [2011] UKUT 00164 (IAC) that in addition to not counting towards the five-year period, prison also broke the continuity of residence for that period, may have to be re-examined.
5. Even where an appellant had acquired a right of permanent residence, the UKBA Criminal Casework Directorate Instructions (attached as Appendix B to LG and CC) are not to be treated as exhaustive or conclusive of which convictions would lead to an assessment of serious grounds of public policy or public security.
6. Conspiracy to handle stolen goods is different from the kinds of offences referred to in the UKBA Instructions note but the Tribunal was entitled to conclude that it amounted to serious grounds within the meaning of regulation 21(3). However, a conviction for conspiracy to handle stolen goods is unlikely to constitute conduct amounting to imperative grounds of public policy within the meaning of regulation 21(4).
Citations:
[2012] UKUT 120 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 31 January 2022; Ref: scu.457686