Carvalho v Secretary of State for the Home Department

Imprisonment interrupts the continuous lawful residence required for an EEA national to acquire a permanent right of residence. Time in prison does not further the integration achieved through the exercise of Treaty rights. A person whose five-year period includes imprisonment therefore fails to qualify for the enhanced protection against deportation associated with permanent residence.

When deciding whether personal conduct represents a genuine, present and sufficiently serious threat, a tribunal must give adequate reasons for rejecting material risk evidence. Brevity alone does not invalidate its reasons, but it must engage with evidence that points strongly towards the opposite conclusion.

Two appeals concerning the deportation of EEA nationals were heard together. Cesar Carvalho appealed against the Asylum and Immigration Tribunal's decision, [2009] UKAIT00024, that his imprisonment interrupted the five years of continuous residence required for permanent residence under the European Economic Area Regulations 2006.

In the second appeal, the Secretary of State challenged the Tribunal's decision allowing Omar Abdullah Omar's appeal against deportation. Omar had no permanent right of residence. The Tribunal applied the ordinary public-policy test but did not explain why it rejected an unfavourable OASys risk assessment. The central issues were whether imprisonment could count towards Carvalho's qualifying residence and whether the decision in Omar was supported by adequate reasons.

1. Carvalho's appeal was dismissed. The five-year period needed to acquire permanent residence must comprise continuous lawful residence in the exercise of Treaty rights. Imprisonment does not advance the integration on which the enhanced protection is founded. A period including imprisonment therefore cannot form the necessary continuous period under regulation 15(1)(a) of the European Economic Area Regulations 2006.
2. The European decisions concerning Turkish workers did not assist Carvalho. Nazli and Dogan concerned the retention of rights acquired through many years of lawful employment, rather than the accumulation of a specified qualifying period. Orfanopoulos was also distinguishable because it concerned an existing right of free movement for workers and contained no graduated residence periods. By contrast, Sedef supported a fundamental distinction between acquiring rights incrementally and retaining rights already acquired.
3. The result was consistent with HR (Portugal) [2009] EWCA Civ 371. The quality of residence required for the five-year and ten-year periods is residence in the exercise of Treaty rights. Article 7 of the Directive 2004/38/EC identifies circumstances in which worker status survives an interruption, but does not include imprisonment. The Commission's non-determinative opinion provided further reassurance. The court did not decide the separate dispute concerning Carvalho's arrival date.
4. The Secretary of State's appeal in Omar was allowed. Because Omar lacked permanent residence, the applicable standard was whether his personal conduct represented a genuine, present and sufficiently serious threat affecting a fundamental interest of society under regulation 21(5)(c). The Tribunal identified that standard correctly.
5. A reasons challenge is not established merely because a tribunal's reasons are brief. However, the Tribunal failed to explain why it rejected an OASys assessment indicating a substantial risk of reconviction and reimprisonment, poor insight, and a negative capacity to change. That omission amounted to legally inadequate reasoning. The reconsideration decision was materially erroneous because it failed to identify the defect.
6. The reconsideration decision in Omar was quashed and his case was remitted to the Upper Tribunal.

• Court of Appeal: Dismissed Carvalho's appeal. Allowed the Secretary of State's appeal in Omar, quashed the reconsideration decision and remitted Omar's case to the Upper Tribunal.
• Asylum and Immigration Tribunal—Carvalho: On reconsideration in [2009] UKAIT00024, again dismissed Carvalho's appeal and held that imprisonment did not count towards the five-year qualifying period.
• Asylum and Immigration Tribunal—Omar: Allowed Omar's appeal against deportation. On reconsideration, a Designated Immigration Judge upheld the original determination as properly reasoned.