V, Italian, lived in the UK since 1985. On the breakdown of his marriage he moved in with a Mr Mitchell who he later killed. On release from his sentence for manslaughter, the Appellant decided to deport him. The Court of Appeal rejected the Appellant’s appeal from the overturning of the deportation. The Supreme Court referred questions to the ECJ, and now considered the appeal in the light of the answer.
Held: The appeal was allowed. The SC had asked whether a right of permanent residence was a prerequisite of enhanced protection against expulsion pursuant to article 28(3)(a) of the Directive under which an expulsion decision ‘may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by member states, if they have resided in the host member state for the previous ten years’. The CJEU held that RPR is a prerequisite for this, because article 28 provides graduated protection, and the protection reflects the individual’s integration in the host state.
In the first judgment it was found that V had not acquired a right of permanent residence in the UK before the deportation decision because the imprisonment had interrupted its acquisition.
V now argued that the SC was wrong to find he did not have RPR, because the CJEU observed that the question referred assumed that he does not have RPR, and the SC did not have the information necessary so to assess. The SS maintains that Lord Mance was correct but concedes that it will be open to V to argue that he had acquired permanent residence after the deportation decision.
The proposition the CJEU was unable to assess, namely that V does not have RPR, is not the same as Lord Mance’s conclusion, namely that Mr Vomero had not acquired RPR by 23 March 2007. The same is true of the Advocate General’s preliminary observations.
The leading authority on the significance of imprisonment in relation to the acquisition of RPR is Onuekwere where the CJEU held that periods of imprisonment could not be taken into account when calculating the length of the claimant’s residence in the UK, and theyy interrupted the continuity of such residence.
This case differs from Onuekwere in that V had more than five years of continuous legal residence before he was imprisoned. However, imprisonment for more than two years prevented him from acquiring a right of permanent residence, as would absence from the UK or being out of work for more than two years, (SSWP v Lassal and SSWP v Dias). The necessary five years’ continuous legal residence could only begin when he completed the custodial sentence, and had not been completed when the decision to deport was made.
The tribunal, on remission, must consider both whether V has acquired a right of permanent residence since the decision to deport him, and whether there still exist ‘grounds of public policy or public security’ within the meaning of article 28(1) of the Directive on the basis of which his expulsion could be justified.
Judges:
Lady Hale, President
Lord Reed, Deputy President
Lord Wilson
Lord Mance
Lord Hughes
Citations:
[2019] UKSC 35, [2019] 1 WLR 4729, [2020] 1 All ER 287, [2020] Imm AR 97, [2019] WLR(D) 461, [2019] INLR 812, [2020] 1 WLR 3692, UKSC 2012/0226
Links:
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2019 Feb 07 pm Video
Statutes:
Immigration (European Economic Area) Regulations 2006, Directive 2004/38/EC 27 28
Jurisdiction:
England and Wales
Citing:
Appeal from – Secretary of State for The Home Department v FV (Italy) CA 14-Sep-2012
A right of permanent residence (‘RPR’) is a prerequisite for enhanced protection against expulsion pursuant to article 28(3)(a) of the Directive . .
See Also – Secretary of State for The Home Department v Vomero (Italy) SC 27-Jul-2016
The respondent an Italian national had come to the UK, and married an English wife and making a family here. After the marriage broke down he committed a manslaughter, and on his release it was decided that he should be deported. He successfully . .
Cited – Onuekwere v Secretary of State For The Home Department ECJ 16-Jan-2014
ECJ Request for a preliminary ruling – Directive 2004/38/EC – Article 16(2) and (3) – Right of permanent residence of third-country nationals who are family members of a Union citizen – Taking into consideration . .
Cited – Secretary of State For The Home Department v MG (Judgment of The Court) ECJ 16-Jan-2014
ECJ Request for a preliminary ruling – Directive 2004/38/EC – Article 28(3)(a) – Protection against expulsion – Method for calculating the 10-year period – Whether periods of imprisonment are to be taken into . .
Cited – Nazli and Others v Stadt Nurnberg ECJ 10-Feb-2000
Europa EEC-Turkey Association Agreement – Freedom of movement for workers – Articles 6(1) and 14(1) of Decision No 1/80 of the Association Council – Registration as duly belonging to the labour force of a Member . .
Cited – Cetinkaya (External Relations) ECJ 11-Nov-2004
EEC-Turkey Association Agreement – Freedom of movement for workers – Articles 7, first indent, and 14(1) of Decision No 1/80 of the Association Council – Right of residence of the child of a Turkish worker after he has attained his majority – . .
Cited – Ziolkowski and Others v Land Berlin ECJ 21-Dec-2011
Grand Chamber – Freedom of movement for persons – Directive 2004/38/EC – Right of permanent residence – Article 16 – Legal residence – Residence based on national law – Period of residence completed before the accession to the European Union of the . .
Cited – Secretary of State for the Home Department v Dias (European Citizenship) ECJ 21-Jul-2011
Free movement of persons – Directive 2004/38/EC – Article 16 – Right of permanent residence – Periods completed before the date of transposition of that directive – Legal residence – Residence based solely on a residence permit issued pursuant to . .
Cited – Secretary of State for Work and Pensions v Lassal ECJ 7-Oct-2010
Reference for preliminary ruling – Freedom of movement for persons – Directive 2004/38/EC – Article 16 – Right of permanent residence – Temporal application – Periods completed before the date of transposition . .
Lists of cited by and citing cases may be incomplete.
European, Immigration
Updated: 17 April 2022; Ref: scu.640088