Secretary of State for the Home Department v Viscu

For the purposes of regulation 3(3)(a) of the Immigration (European Economic Area) Regulations 2016, a “sentence of imprisonment” includes every form of custodial sentence, including detention in a young offenders’ institution. Serious offending warranting custody is, in general, indicative of a rejection of the host state’s societal values and may interrupt the continuity of residence required for enhanced protection against expulsion.

Custody does not automatically establish that integrating links have been broken. An overall assessment must consider all relevant circumstances, including the offender’s age, the nature and circumstances of the offence, conduct during detention and, where applicable, the child’s best interests.

The respondent, a Romanian national who had lived in the United Kingdom since childhood, received several detention and training orders which he served in a young offenders’ institution. The Secretary of State decided to deport him under the Immigration (European Economic Area) Regulations 2016.

The First-tier Tribunal allowed his appeal. It held that a juvenile could not receive a sentence of imprisonment and that his periods of detention therefore did not interrupt the continuity of residence required for enhanced protection against expulsion. The Upper Tribunal upheld that decision and granted the Secretary of State permission to appeal.

The issue before the Court of Appeal was whether detention in a young offenders’ institution counts as imprisonment under regulation 3(3), so that it is capable in principle of breaking continuity of residence.

1. Appeal allowed. Regulation 3(3)(a) of the Immigration (European Economic Area) Regulations 2016 must be construed as including all forms of custodial sentence, including detention in a young offenders’ institution. The contrary decisions of the First-tier Tribunal and Upper Tribunal were erroneous.

2. The degree of protection against expulsion under Council Directive 2004/38/EC increases with the individual’s degree of integration in the host state. The CJEU authorities establish that a custodial sentence generally indicates a rejection of societal values and a severing of integrating links. Whether those links have actually been broken depends upon an overall assessment at the time of the expulsion decision.

3. The principle applies to young offenders as well as adults. The relevant indication of a rejection of societal values comes from offending sufficiently serious to warrant custody, rather than from the domestic label attached to the sentence. Nothing in domestic law required “imprisonment” to be confined to sentences imposed on offenders aged over 21. Such a narrow construction would also frustrate the purpose for which regulation 3 was enacted.

4. A young offender’s age remains important to the overall assessment. Relevant matters include whether offending committed as a minor indicates a weaker rejection of societal values, whether the nature and purpose of youth detention are less disruptive of integration, the nature and circumstances of the offences, conduct in custody and the child’s best interests. Detention therefore does not automatically remove enhanced protection.

5. Regulation 27(4)(b) separately protects a person who is under 18 when the expulsion decision is made, unless expulsion is in that person’s best interests. There was consequently no need to adopt a narrow construction of regulation 3(3)(a) to protect children.

6. It was unnecessary to decide whether regulation 3(4) fully transposed the broader approach subsequently taken by the CJEU. That issue had not been fully argued and did not affect the interpretation of regulation 3(3).

7. The case was remitted to the Upper Tribunal for further consideration after the Secretary of State had undertaken the required overall assessment. Lewison and Underhill LJJ agreed with Flaux LJ.

• Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal in [2019] EWCA Civ 1052 and remitted the case to the Upper Tribunal for further consideration following an overall assessment.
• Upper Tribunal (Immigration and Asylum Chamber): Upheld the First-tier Tribunal’s decision, holding that detention in a young offenders’ institution was not a sentence of imprisonment for the purposes of regulation 3(3)(a). It granted permission to appeal.
• First-tier Tribunal: Allowed the respondent’s appeal against deportation because his detention and training orders did not interrupt his residence and the imperative-grounds threshold for deportation had not been met.