Nnamdi Onuekwere v The Secretary of State for the Home Department

A period of imprisonment may raise separate questions as to whether it counts as legal residence and whether it interrupts the continuity required to acquire permanent residence under Directive 2004/38/EC. Existing domestic authority treated custody as not counting towards the qualifying period, but the Tribunal considered that the reasoning in Tsakouridis left the effect of imprisonment on continuity unclear.

Where that unresolved point of EU law is determinative of entitlement to permanent residence and the consequent level of protection against removal, a reference to the Court of Justice is appropriate. The national court requires guidance both on imprisonment as legal residence under Article 16 and on aggregation of qualifying residence before and after imprisonment.

The appellant, a Nigerian national and family member of an Irish EEA national exercising Treaty rights, sought a permanent residence card under the Immigration (European Economic Area) Regulations 2006. He had spent two periods in prison and had not completed five uninterrupted years outside custody, although his periods of residence outside prison exceeded five years when aggregated.

A judge had found that he was entitled to a residence card but not permanent residence because imprisonment broke continuity. On appeal, the appellant contended that Tsakouridis required imprisonment to be assessed as a factor rather than as an automatic break. The central issue was whether imprisonment counts as legal residence, or permits aggregation of residence before and after custody, for Article 16 of Directive 2004/38/EC.

1. Reference ordered. The Tribunal made a reference to the Court of Justice of the European Union. The EU-law issue was determinative of whether the appellant had acquired permanent residence and also affected the level of protection against removal available to EEA nationals and qualifying family members.

2. Article 16 distinguishes acquisition of permanent residence through five years of legal and continuous residence from loss of a right already acquired. The Tribunal accepted that legal residence for Article 16 must comply with the conditions in the Directive, rather than merely domestic immigration law. Existing Court of Appeal and Tribunal authority treated periods in custody as not counting towards the qualifying period.

3. Tsakouridis, however, concerned whether enhanced ten-year protection had been lost through absences from the host state. It required an overall assessment of absences and allowed time in prison to be considered when deciding whether integrating links had been broken. It did not decide the effect of imprisonment served within the host state on acquisition of permanent residence.

4. The Tribunal considered that the subsequent CJEU reasoning made it unclear whether imprisonment breaks continuity for the five-year, and potentially ten-year, residence protections. It could not confidently reconcile the earlier domestic decisions with that reasoning, particularly on whether lawful residence before and after imprisonment may be aggregated.

5. The questions referred were: in what circumstances imprisonment constitutes legal residence for acquiring permanent residence under Article 16; and, if it does not, whether periods before and after imprisonment may be aggregated to satisfy the five-year requirement.

• Upper Tribunal (Immigration and Asylum Chamber): Ordered a preliminary reference to the Court of Justice of the European Union on the interpretation of Article 16 of Directive 2004/38/EC.
• First-tier Tribunal: Found that the appellant was entitled to a residence card but had not acquired permanent residence because imprisonment prevented five years of continuous residence. No citation was stated.