HR (Portugal) v Secretary of State for the Home Office

The enhanced protection against expulsion acquired after ten years’ residence under regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006 depends upon genuine integration through residence in the exercise of rights conferred by the EU Treaty. Mere physical presence is insufficient.

An EEA national serving a significant term of imprisonment following conviction is not resident for this purpose. Imprisonment removes the person from normal society and prevents the exercise of EU citizenship rights. Such imprisonment therefore does not count towards the qualifying ten-year period. The position of a person remanded in custody and later acquitted, or whose conviction is overturned, remains unresolved.

A Portuguese national appealed from the Asylum and Immigration Tribunal’s dismissal of his challenge to a deportation decision. The Tribunal found that he had acquired a permanent right of residence but that substantial periods spent in prison did not count towards the ten years required for the enhanced protection in regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006.

The Tribunal found serious grounds of public policy or public security sufficient for deportation under regulation 21(3). It did not find the imperative grounds of public security required by regulation 21(4)(a). The sole issue in the Court of Appeal was therefore whether imprisonment following criminal conviction counted as residence when calculating the continuous ten-year period.

1. The appeal was dismissed unanimously. The Regulations had to be construed consistently with Directive 2004/58/EC. A purposive construction, informed particularly by recitals 23 and 24, showed that increasing protection against expulsion reflects increasing integration into the host state.

2. Stanley Burnton LJ held that residence for Article 28(3) of the Directive, and therefore regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006, means presence in the host state through the exercise of rights and freedoms conferred by the EU Treaty. A person detained for a significant period in prison following conviction is not resident for that purpose. Treating imprisonment as qualifying residence would allow a person who had not acquired permanent residence to obtain the still stronger ten-year protection. That result would be inconsistent with the Directive’s graduated scheme and its objective of protecting genuine integration.

3. Elias LJ agreed that imprisonment following conviction could not count. He did not accept the wider linguistic proposition that an incarcerated person could never be described as resident in the United Kingdom. The exclusion arose from the purpose and context of the Directive: the prisoner had placed himself outside normal society and could not exercise EU citizenship rights.

4. Sedley LJ agreed that the purposive interpretation was the preferable of two arguable meanings. He expressed concern about applying a general exclusion to time spent on remand where the person was later acquitted. Elias LJ similarly confined the decision to imprisonment following conviction and left remand, acquittal and successful appeals for another case.

5. The Tribunal had therefore made no error of law in applying the serious-grounds standard under regulation 21(3), rather than the imperative-grounds standard under regulation 21(4)(a). All three members of the court considered the outcome acte clair, so no reference to the European Court of Justice was required.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court upheld the Tribunal’s conclusion that imprisonment following conviction did not count towards ten years’ residence under regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006.
2. Asylum and Immigration Tribunal, second-stage reconsideration: The Tribunal dismissed the appeal against deportation. It held that the appellant had a permanent right of residence but that his imprisonment did not count towards the ten-year period. Deportation was justified on serious grounds of public policy or public security.
3. Asylum and Immigration Tribunal, initial determination: The Tribunal dismissed the appeal without adequately considering regulation 21 or future risk. Reconsideration was subsequently ordered.