Nerijus Jarusevicius v The Secretary of State for the Home Department

An EEA national acquires permanent residence only after five years of continuous residence exercised in accordance with EU law. Residence based merely on national law, or an intention to seek work, does not suffice. Periods spent in detention do not count towards accruing that five-year period.

The Tribunal indicated, however, that imprisonment may not break continuity between periods of lawful residence, and that its effect on the ten-year protection in regulation 21(4) requires an overall assessment. For deportation, organised and serious criminal conduct, continuing dishonesty, lack of remorse and no reliable evidence of reform may establish a genuine, present and sufficiently serious threat to public policy. The proportionality assessment must consider family circumstances and children’s interests, but separation may be justified by serious crime.

The appellant, a Lithuanian national, appealed against a deportation order made after his conviction and sentence of 42 months’ imprisonment for conspiracy to handle stolen goods. The Secretary of State relied on public-policy grounds under the Immigration (European Economic Area) Regulations 2006.

The First-tier Tribunal dismissed his appeal in a determination promulgated on 8 April 2011. It found that he had not established five years’ qualifying residence, that his conduct posed a genuine present and sufficiently serious threat, and that removal was proportionate despite his partner and two children in the United Kingdom.

Permission was granted to challenge the treatment of time on remand and bail, the assessment of public-policy risk and proportionality. The central questions were whether detention prevented acquisition of permanent residence and whether deportation was justified under regulation 21.

1. Appeal dismissed. The First-tier Tribunal made no material error of law.

2. The appellant had not acquired permanent residence under regulation 15(1)(a) of the Immigration (European Economic Area) Regulations 2006. Applying Maria Dias v SSHD [2011] EUECJ-C-325/09, qualifying residence required the exercise of Treaty rights, such as worker status, rather than mere residence or an intention to find work. The Tribunal was bound by Carvalho [2010] EWCA Civ 1406 to hold that detention did not count towards the five-year period. Even allowing for the period on bail, the evidence could not establish five qualifying years.

3. Tsakouridis [2010] EUECJ C-145/09 concerned the retention of protection after permanent residence had already been acquired and did not require a different result. The Tribunal nevertheless observed that EU authority suggested imprisonment should not be equated with voluntary unemployment and might not interrupt lawful residence for the purpose of either later aggregation or the ten-year protection under regulation 21(4). The contrary conclusions in LG and CC [2009] UKAIT 00024 and SO [2011] UKUT 00164 (IAC) might require reconsideration. Those observations were not necessary to the outcome.

4. The appellant’s participation in organised vehicle crime, previous offending, continued minimisation of his role, lack of remorse or insight, and absence of reliable evidence of reform entitled the First-tier Tribunal to find a genuine, present and sufficiently serious threat under regulation 21(5). The alternative conclusion that the offending amounted to serious grounds of public policy under regulation 21(3) was also open to it. The UKBA instructions referred to in LG and CC were not exhaustive or conclusive.

5. The proportionality assessment properly considered the children’s best interests and family life. Their Lithuanian nationality, limited United Kingdom ties, and ability to return with the appellant meant that the Tribunal was entitled to find deportation justified. If the family remained, contact could be maintained and the order could later be reconsidered if circumstances changed.

• Upper Tribunal (Immigration and Asylum Chamber): Appeal dismissed; no material error of law was identified in the First-tier Tribunal’s decision.
• First-tier Tribunal: Appeal against the deportation decision dismissed in a determination promulgated on 8 April 2011.