The Secretary of State for the Home Department v Sunday Adeola Ogunyemi

For the permanent right of residence under Immigration (European Economic Area) Regulations 2006, time spent in prison does not count towards the required continuous five-year period. Any imprisonment, however short, breaks continuity. The period must therefore begin afresh on release.

The rule applies generally to an application for a residence card. It is not confined to deportation cases, and it does not depend on whether the custodial period is substantial.

The Secretary of State appealed from Immigration Judge Neuberger’s decision allowing Mr Ogunyemi’s appeal against the refusal of a residence card confirming a permanent right of residence under Regulation 15(1)(f) of the Immigration (European Economic Area) Regulations 2006.

Mr Ogunyemi, a non-EEA former family member of a Dutch national, had served four months and three days’ imprisonment during the period relied on as five years’ continuous residence. The Immigration Judge held that the period was insufficiently substantial to break continuity.

The central issue was whether imprisonment of that length interrupted the continuous five-year qualifying period.

1. The Secretary of State’s appeal was allowed. The Upper Tribunal reversed the Immigration Judge’s decision and remade it so that the appeal against the refusal of a residence card was dismissed.

2. Under Regulation 15(1)(f) of the Immigration (European Economic Area) Regulations 2006, the required five years must be a continuous period of residence in accordance with the Regulations. A person serving a sentence of imprisonment is not to be regarded as continuously resident during custody. The time in prison must be disregarded and the five-year period starts again on release.

3. The Tribunal rejected the proposition that only a substantial period of imprisonment breaks continuity. The authorities established a rule of general application. It applies to an application for a residence card as well as to cases concerning deportation and enhanced protection from removal.

4. HR (Portugal) v the Secretary of State [2009] EWCA Civ 371 had limited value on its particular facts, but the subsequent authorities confirmed the governing principle. In particular, the reasoning in Caesar Carvalho v Secretary of State for the Home Department and Secretary of State for the Home Department v Omar Abdullah Omar [2010] EWCA Civ 1406 showed that imprisonment prevents the integration through exercise of Treaty rights which the permanent-residence regime requires.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the Secretary of State’s appeal and reversed the Immigration Judge’s decision.
• First-tier Tribunal: Immigration Judge Neuberger had allowed Mr Ogunyemi’s appeal against refusal of a residence card. The determination was promulgated on 15 December 2010; no citation was stated.