The Secretary of State for the Home Department v MG

Where the applicability of the enhanced protection against expulsion in Article 28(3)(a) of Directive 2004/38/EC turns on unresolved EU-law questions, a national tribunal should make a preliminary reference if it cannot decide those questions with complete confidence. The effect of imprisonment on the requisite ten years’ residence was uncertain in the light of competing domestic and Court of Justice authorities.

The unresolved issues included whether post-sentence imprisonment breaks residence or otherwise precludes enhanced protection, whether the ten years must be continuous, and whether the period is calculated backwards from the expulsion decision or forwards from the start of residence. Those issues were determinative because, if enhanced protection applied, the Secretary of State accepted that no imperative grounds of public security existed.

The claimant, a Portuguese national, had lived in the United Kingdom since 1998. She was convicted of child cruelty and assaults on her child, and was sentenced to 21 months’ imprisonment in August 2009. In July 2010 the Secretary of State refused her application for a certificate of permanent residence and made a deportation order.

The First-tier Tribunal allowed her appeal on the basis that she had accrued ten years’ residence and could therefore be expelled only on imperative grounds of public security. The Upper Tribunal had already set that decision aside for error of law. During the remaking proceedings, the Secretary of State accepted that the claimant had acquired permanent residence, but contended that imprisonment broke the continuity needed for the highest level of protection.

The central issue was whether the claimant could invoke Article 28(3)(a) of Directive 2004/38/EC, and in particular how imprisonment affected the required ten-year residence period.

1. Reference ordered. The Tribunal could not decide with complete confidence the EU-law questions governing the claimant’s entitlement to the highest level of protection against expulsion. It therefore referred four questions to the Court of Justice of the European Union.
2. The claimant had acquired permanent residence by May 2003 and had not lost it through an absence of two consecutive years. She was therefore entitled at least to the protection in Article 28(2). The Tribunal considered whether that issue could determine the appeal, but regarded the evidence on serious grounds of public policy or public security as finely balanced.
3. The Tribunal was presently persuaded that, even at the basic level of protection under Article 27(1) and Article 28(1), the Secretary of State had established grounds of public policy and public security. A possible right of residence derived from the claimant’s children’s education was relevant to proportionality, but could not conclusively resolve the appeal.
4. The decisive unresolved issue was Article 28(3)(a). Domestic authorities had treated imprisonment as breaking continuity of residence, whereas Court of Justice decisions appeared to proceed on a different basis. It was also unclear whether the ten years must be continuous and whether they are calculated backwards from the expulsion decision or forwards from the commencement of residence.
5. The Tribunal referred questions on: the effect of post-sentence imprisonment; the meaning of “previous ten years”; the method of calculating the ten-year period; and whether prior accrual of ten years makes a difference. It also requested accelerated treatment because the answers could affect detention and deportation cases across Member States.

• Upper Tribunal (Immigration and Asylum Chamber): ordered a reference to the Court of Justice on the interpretation of Article 28(3)(a) of Directive 2004/38/EC.
• Upper Tribunal (Immigration and Asylum Chamber): in a decision notified on 13 August 2011, set aside the First-tier Tribunal’s determination for material error of law.
• First-tier Tribunal: in a determination sent on 10 January 2011, allowed the claimant’s appeal against deportation, holding that she had ten years’ residence and that imperative grounds of public security had not been established.