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

Under the Immigration (European Economic Area) Regulations 2006, enhanced protection against expulsion depends on genuine integration during the ten years before the decision. That question requires an overall qualitative assessment. Imprisonment or absence does not automatically break integration, although it remains relevant. Imperative grounds of public security require an exceptionally serious, genuine and present threat to a fundamental interest, assessed individually and proportionately, with less restrictive means and the consequences for an integrated Union citizen considered. A serious offence and a risk directed at a particular person did not meet that threshold on these facts. The Secretary of State could not raise the separate permanent-residence issue for the first time on appeal.

FV, an Italian national who had lived in the United Kingdom since 1985, was convicted of manslaughter and sentenced to eight years’ imprisonment. The Secretary of State made a deportation decision in 2007.

An Asylum and Immigration Tribunal initially dismissed FV’s appeal. On reconsideration, a second Tribunal found an error of law and allowed the appeal, holding that the circumstances did not disclose imperative grounds of public security. The Secretary of State appealed, arguing that FV lacked permanent residence, that imprisonment prevented ten years’ qualifying residence, and that the offence met the highest deportation threshold. The central issues were whether those points could be raised or sustained and whether the Tribunal’s decision should be remitted.

Pill LJ gave the leading judgment. Aikens LJ agreed with the conclusions and gave additional reasons. Rafferty LJ agreed with Aikens LJ. The appeal was dismissed unanimously.

1. The Secretary of State could not challenge FV’s permanent right of residence at this stage. The point had not been pursued before either Tribunal, whose consideration had been confined to Regulation 21(4). Raising it in 2012 would have been procedurally unfair, particularly because it would require evidence about residence many years earlier.
2. For Regulation 21(4)(a), ten years’ residence is assessed at the date of the deportation decision. The applicable test is an overall qualitative assessment of genuine integration. Relevant matters include the length and pattern of residence, absences and their reasons, the centre of personal, family and occupational interests, family connections, links with the country of origin and the effect of imprisonment. A custodial term does not automatically break integration, although imprisonment will not normally establish it.
3. The reasoning in Tsakouridis (Case C-145/09) and PI (Case C-348/09) required that approach. The two-year loss rule for permanent residence concerns absence from the host State. It could not be extended by analogy to treat two years’ imprisonment as automatically defeating acquired rights.
4. Imperative grounds of public security require a particularly serious, genuine and present threat to a fundamental interest. The decision must be based on an individual examination, must be necessary, and must take account of less restrictive means, the person’s integration and the risk to social rehabilitation. The threshold is materially higher than serious grounds of public policy or public security and must be interpreted strictly.
5. The 2007 Tribunal had erred by treating a medium risk of reoffending as sufficient merely because the potential consequence was serious. The 2008 Tribunal correctly concluded that FV’s domestic manslaughter conviction and risk of violence towards a particular person did not satisfy the exceptional threshold. Even if aspects of its assessment of the reports could be criticised, no Tribunal could properly reach a different result. Remittal was therefore unnecessary and the appeal was dismissed.

1. Court of Appeal (Civil Division): dismissed the Secretary of State’s appeal and declined to remit the case or make a reference to the CJEU.
2. Asylum and Immigration Tribunal: the first Tribunal dismissed FV’s appeal. On reconsideration, the Tribunal found an error of law in the first decision and allowed FV’s appeal, holding that the facts did not establish imperative grounds of public security.