Secretary of State for the Home Department v Vassallo

A Union citizen does not acquire a right of permanent residence merely because an earlier five-year period might have qualified. Under Directive 2004/38/EC, more than two consecutive years in the host state without satisfying EU-law conditions for a right of residence can prevent acquisition based on that earlier period. The rule applies even where later residence is lawful under national law and integration remains strong. The court left open whether residence before the first relevant EU instrument could count, because the later non-qualifying residence was decisive. Although the tribunals wrongly found a permanent right, the error was immaterial: the public-policy and public-security assessment still applied, and the finding that deportation was disproportionate stood.

The Secretary of State appealed against the Upper Tribunal’s decision in [2014] UKUT 00313 (IAC), concerning an Italian national who had lived in the United Kingdom since childhood and had an extensive criminal record. The First-tier Tribunal had allowed his appeal against a deportation decision, finding that he had acquired permanent residence and was protected by the highest deportation threshold. The Upper Tribunal rejected the ten-year residence finding but upheld the conclusion that permanent residence had been acquired.

The central questions were whether residence between 1952 and 1963 could count, whether later non-qualifying residence prevented acquisition, and whether any extended absence interrupted residence.

The Court of Appeal unanimously dismissed the appeal, although it rejected the Upper Tribunal’s reasoning on permanent residence.

1. Pre-accession residence. The court did not decide whether residence before the first EU instrument governing free movement could count towards acquisition under Article 16(1) of Directive 2004/38/EC. The issue was not acte clair, but no reference was necessary because the later character of the respondent’s residence was decisive.
2. Later non-qualifying residence. Applying the reasoning in Secretary of State for Work and Pensions v Dias [2011] ECR I-6387, Article 16(4) applied by analogy to residence in the host state which did not satisfy the EU-law conditions for any right of residence. A period exceeding two consecutive years of such residence prevented acquisition based on an earlier qualifying five-year period. The Upper Tribunal was therefore wrong to hold that paragraph 6(4)(b) of Schedule 4 to the Immigration (European Economic Area) Regulations 2006 failed accurately to transpose the Directive.
3. Even assuming that the respondent’s residence from 1952 to 1963 could count, his subsequent period of more than forty years of non-qualifying residence prevented acquisition of permanent residence. It was not open to the First-tier Tribunal to find otherwise.
4. Deportation assessment. Although the respondent lacked a permanent right of residence, regulation 19(5) meant that removal still had to be justified on public-policy or public-security grounds under regulation 21. The higher serious-grounds threshold in regulation 21(3) did not apply, but the requirements of regulation 21(5) and (6) remained applicable.
5. The First-tier Tribunal had made clear findings that the respondent’s conduct did not represent a genuine, present and sufficiently serious threat under regulation 21(5)(c), and that deportation would be disproportionate. Those findings would have been the same under the correct threshold. The legal errors were consequently immaterial, and the Upper Tribunal was right to dismiss the appeal.

1. Court of Appeal (Civil Division): Appeal dismissed under [2016] EWCA Civ 13. The Upper Tribunal’s reasoning was wrong, but its dismissal of the Secretary of State’s appeal was upheld because the errors were immaterial.
2. Upper Tribunal (Immigration and Asylum Chamber): In [2014] UKUT 00313 (IAC), the tribunal rejected the ten-year continuous-residence finding but upheld the First-tier Tribunal’s decision on the alternative basis that permanent residence had been acquired.
3. First-tier Tribunal: Allowed the respondent’s appeal against deportation, finding that deportation was not justified and would be disproportionate.