Secretary of State for the Home Department v Benedetto Vassallo

Periods of residence completed before the United Kingdom joined the European Community, and before domestic EEA regulations took effect, may count as qualifying residence. They must satisfy the conditions which would have applied under Directive 2004/38/EC, including Article 7(1), or the applicable transitional provisions of the Immigration (European Economic Area) Regulations 2006.

A student cannot establish qualifying residence without comprehensive sickness insurance and sufficient resources. Periods of imprisonment interrupt the continuous ten-year residence required for the highest protection against expulsion. But a domestic provision purporting to remove an already acquired permanent right of residence otherwise than through two years’ absence is inconsistent with Article 16(4) and must yield to the Directive.

The Secretary of State appealed against the First-tier Tribunal’s decision allowing an Italian national’s appeal against a deportation order made under the Immigration (European Economic Area) Regulations 2006. The appellant had lived in the United Kingdom from childhood, before the United Kingdom’s accession to the European Community, but had a lengthy criminal record.

The First-tier Tribunal found that he had acquired both permanent residence after five years and ten years’ residence giving the highest protection from removal. The Upper Tribunal considered whether his pre-accession residence could qualify, whether his imprisonment interrupted the ten-year period, and whether he nevertheless had a permanent right of residence sufficient to defeat deportation on the facts found.

1. Appeal dismissed. The First-tier Tribunal had made errors of law, but its decision allowing the appeal under the Immigration (European Economic Area) Regulations 2006 was not set aside because its alternative conclusion that the appellant had acquired permanent residence was correct.

2. Residence before the United Kingdom’s accession to the European Community may be counted for the purposes of permanent residence. The distinction from the pre-accession facts in Ziolkowski was not substantive. The residence must, however, meet the conditions in Article 7(1) of Directive 2004/38/EC.

3. The First-tier Tribunal was wrong to treat the appellant’s childhood education alone as qualifying student residence. Article 7(1)(c) required comprehensive sickness insurance and an assurance of sufficient resources. Those requirements were not established.

4. The First-tier Tribunal was also wrong to find continuous ten-year residence for the enhanced protection in regulation 21(4). The period is calculated backwards from the deportation decision, and periods of imprisonment in principle interrupt continuity.

5. On the facts found, the appellant’s childhood residence as the family member of working parents met Schedule 4 paragraph 6(3). Although paragraph 6(4)(b) purported to prevent that period being counted after more than two years of non-qualifying residence, it was inconsistent with Article 16(4) of the Directive. Permanent residence, once acquired, is lost only through absence from the host state exceeding two consecutive years. The appellant had therefore acquired, and had not lost, permanent residence.

6. The First-tier Tribunal was entitled to find a low risk of reoffending and hence no genuine, present and sufficiently serious threat to a fundamental interest of society. General deterrence was irrelevant in an EEA deportation decision.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed. The First-tier Tribunal’s decision was found to contain errors of law but was not set aside.
• First-tier Tribunal: Allowed the Italian national’s appeal against the deportation decision under the Immigration (European Economic Area) Regulations 2006.