LG (Italy) v Secretary of State for the Home Department

The protection against expulsion conferred on an EEA national after ten years’ continuous residence requires a test which is both more stringent and narrower than the test applicable to a person with a permanent right of residence. “Imperative grounds of public security” must therefore be given a meaning distinct from “serious grounds of public policy or public security”.

Domestic implementing legislation must, so far as possible, be interpreted consistently with the underlying EU Directive. A tribunal errs if it applies the highest level of protection without identifying and giving effect to the distinction between the two thresholds. Departmental guidance cannot constitute a Member State’s formal definition of the relevant EU concept unless that definition is embodied in legislation.

An Italian national who had lived in the United Kingdom since 1985 was made subject to a deportation order following serious convictions for robbery and causing grievous bodily harm with intent. On reconsideration, the Asylum and Immigration Tribunal found that he had completed ten years’ continuous residence but held that his dangerousness and the serious risk of further offending constituted “imperative grounds of public security” under regulation 21(4) of the Immigration (European Economic Area) Regulations 2006.

The national appealed. The Secretary of State accepted that the tribunal might have approached the issue solely through domestic law, but served a respondent’s notice contending that time spent in prison prevented the national from satisfying the residence requirement.

The central questions were whether the tribunal had applied the correct enhanced protection against expulsion and whether imprisonment counted towards the required residence period.

1. Appeal allowed unanimously; respondent’s notice dismissed; matter remitted. The tribunal had not given a distinct meaning to the requirement for “imperative grounds of public security”. Its decision was set aside because there was a risk that it had applied the lower threshold of serious grounds rather than the enhanced threshold governing a person with ten years’ residence. The remission did not imply that the tribunal must reach a different ultimate result.

2. Per Arden LJ, regulation 21(4) of the Immigration (European Economic Area) Regulations 2006 implemented article 28(3) of Directive 2004/38/EC. It therefore had, so far as possible, to be interpreted consistently with the Directive. The Directive deliberately distinguished “serious grounds of public policy or public security” from “imperative grounds of public security”. The latter expression had to impose a higher hurdle, although its precise meaning required fuller argument before the tribunal and might ultimately require a reference to the Court of Justice.

3. Per Carnwath LJ, the hierarchy contained three increasingly stringent levels of protection. The highest level was both narrower and more stringent than the protection afforded to a person with a permanent right of residence. It involved a qualitative distinction, not merely a difference in the severity of the offence. It required an actual risk to public security sufficiently compelling to justify the exceptional removal of a person integrated through many years of residence. Carnwath LJ did not, however, purport to give a definitive interpretation after the limited argument heard.

4. The expression “public security” was broader than “national security”. It was capable of encompassing crimes posing a particularly serious risk to the safety of the public or a section of it. The seriousness of an offence or the length of sentence did not, without more, explain why removal was imperative.

5. A Home Office operational manual was a guide to departmental policy and practice. It was not the United Kingdom’s formal definition of “imperative grounds of public security” for article 28. Any national definition made by an organ other than the courts had to be found in legislation.

6. The court did not decide whether time spent in prison counted towards the five-year or ten-year residence requirements. That issue had not been argued before the tribunal, had not been fully examined in the Court of Appeal and might require determination as a matter of EU law.

• Court of Appeal (Civil Division): By [2008] EWCA Civ 190, unanimously allowed the national’s appeal, dismissed the Secretary of State’s respondent’s notice and remitted the matter for fresh determination.
• Asylum and Immigration Tribunal, reconsideration: On 19 January 2007, found ten years’ continuous residence but dismissed the appeal because the national’s dangerousness and risk of further offending were considered to constitute imperative grounds of public security.
• Asylum and Immigration Tribunal: On 20 December 2005, dismissed the original appeal under the Immigration (European Economic Area) Regulations 2000. Reconsideration was subsequently ordered.