Warsame v The Secretary of State for the Home Department

For enhanced protection against expulsion under article 28(3)(a) of the Citizens’ Directive (2004/38/EC), the ten-year residence period must in principle be continuous and calculated backwards from the expulsion decision. Imprisonment is not counted and will in principle interrupt continuity. Residence before imprisonment may still be considered in an overall assessment of whether integrating links with the host state have been broken. That possibility requires an evidential basis. Where there was no ten-year period before the first imprisonment and no finding of ten qualifying non-continuous years, the enhanced protection cannot be claimed on that basis.

The respondent, a Netherlands national who arrived in the United Kingdom in 1998, received custodial sentences in 2007 and 2009. The Secretary of State decided to deport him on public-policy and public-security grounds.

The First-tier Tribunal allowed his appeal. The Upper Tribunal initially reversed that decision and dismissed the appeal, but later discharged its determination and allowed the appeal after relying on SSHD v FV (Italy). The second determination is reported at [2014] UKUT 00392.

Following the Court of Justice’s decision in SSHD v MG (Portugal), the central issue was whether imprisonment interrupted the ten-year period required for the enhanced protection against expulsion.

The Secretary of State’s appeal was allowed. Lord Justice Longmore gave the leading judgment, with Lord Justices Lewison and Kitchin agreeing.

1. The ten-year period for enhanced protection under article 28(3)(a) of the Citizens’ Directive (2004/38/EC) must in principle be continuous and must be calculated backwards from the date of the expulsion decision. The same principle applies through regulation 21(4) of the Immigration (European Economic Area) Regulations 2006.
2. Following SSHD v MG (Portugal) [2014] 1 WLR 2441, imprisonment cannot be counted towards the relevant period and is in principle capable of interrupting continuity. Residence in the host state during the ten years before imprisonment may nevertheless be considered as part of an overall assessment of whether previously established integrating links have been broken.
3. The possible exception identified in MG (Portugal) did not arise on the facts. There was no ten-year period of residence between the respondent’s arrival and his first custodial sentence. After deducting the four-month sentence from the period relied upon, the period was only about nine years. Nor had the Tribunal found ten qualifying, although non-continuous, years of residence.
4. The second Upper Tribunal determination had proceeded on SSHD v FV (Italy) [2013] 1 WLR 3399, but that approach could not be sustained in the light of MG (Portugal). The second determination was set aside. The first Upper Tribunal determination remained valid, so the respondent’s original appeal against deportation stood dismissed. The respondent was ordered to pay the Secretary of State’s costs, subject to detailed assessment if not agreed.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal against the Upper Tribunal’s second determination was allowed. The second determination was set aside and the respondent’s appeal against deportation was dismissed in accordance with the first Upper Tribunal determination.
2. Upper Tribunal (Immigration and Asylum Chamber): The second determination dated 4 December 2013 allowed the respondent’s appeal on the basis that only imperative grounds of public security were required; it is reported at [2014] UKUT 00392.
3. Upper Tribunal and First-tier Tribunal: The Upper Tribunal’s first determination reversed the First-tier Tribunal’s decision allowing the appeal and dismissed the respondent’s appeal. The First-tier Tribunal had found that he had a permanent right of residence and that serious grounds for deportation had not been established.