Secretary of State for the Home Department v Franco Vomero

Periods of imprisonment cannot count towards the five years’ continuous legal residence required to acquire permanent residence under article 16 of Directive 2004/38/EC. They also interrupt continuity for that purpose.

The ten-year residence condition for enhanced protection against expulsion is calculated backwards from the expulsion decision. Imprisonment may interrupt that period and weaken previously established integrating links, although earlier residence remains relevant to an overall assessment.

The Supreme Court referred to the Court of Justice whether enhanced protection requires permanent residence, how interruptions affect the ten-year calculation, and how that calculation relates to the assessment of integration.

The respondent, an Italian national, had lived in the United Kingdom since 1985. He was imprisoned from 2001 to 2006 for manslaughter. In March 2007 the Secretary of State decided to deport him under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006.

The Court of Appeal, in [2012] EWCA Civ 1199, held that his earlier integration could entitle him to the enhanced protection against expulsion conferred by article 28(3)(a) of Directive 2004/38/EC. It proceeded on the erroneous basis that he possessed a permanent right of residence.

The Supreme Court considered whether permanent residence was a prerequisite to enhanced protection, how the preceding ten years should be calculated, and how that period related to the overall assessment of integrating links.

1. Questions referred to the Court of Justice. Lord Mance delivered the judgment, with which Lady Hale, Lord Wilson, Lord Reed and Lord Hughes agreed. The Supreme Court referred three questions concerning the interpretation of articles 16, 28(2) and 28(3)(a) of Directive 2004/38/EC. The appeal was not finally disposed of.

2. The respondent had acquired no permanent right of residence before the deportation decision. Such a right could not have arisen before 30 April 2006. Moreover, periods of imprisonment cannot count towards the five years’ continuous legal residence required by article 16(1), and imprisonment interrupts continuity. The respondent had been imprisoned for more than five years by April 2006 and had been at liberty for less than nine months when deportation was ordered.

3. The protections in articles 28(1), 28(2) and 28(3) increase with the degree of integration. The ten-year period under article 28(3)(a) must be calculated backwards from the expulsion decision. Imprisonment cannot count towards granting enhanced protection and may interrupt the necessary continuity. Nevertheless, residence before imprisonment may be considered when assessing whether previously established integrating links have been broken.

4. The authorities did not clearly establish how interrupted residence should be calculated. It remained uncertain whether the ten years constituted a calendar period containing absences or imprisonment, or whether qualifying periods should be aggregated. The relationship between the ten-year residence condition and the overall assessment of integration was also unclear.

5. A majority favoured the view that permanent residence was not a prerequisite to enhanced protection under article 28(3)(a). A minority considered the position sufficiently unclear to require a reference. The Court therefore referred whether permanent residence was required and, if not, the two questions concerning calculation and integration.

6. The Court of Appeal’s assessment could not stand because it assumed that the respondent possessed permanent residence. Any eventual remission would also require the tribunal to determine proportionality under article 28(1) if the Secretary of State would otherwise be entitled to deport him.

1. United Kingdom Supreme Court: In [2016] UKSC 49, held that the respondent had not acquired permanent residence, concluded that the Court of Appeal’s assessment could not stand, and referred three questions of EU law to the Court of Justice.

2. Court of Appeal: In [2012] EWCA Civ 1199, accepted that the respondent’s integrating link with the United Kingdom remained intact when deportation was ordered. It proceeded on the erroneous basis that he possessed a permanent right of residence.

3. Tribunal: The tribunal assumed that the ten-year residence period required by article 28(3)(a) of Directive 2004/38/EC had been established and did not undertake the required review of integrating links.