Secretary of State for the Home Department v Franco Vomero

Enhanced protection against expulsion under article 28(3)(a) of Directive 2004/38/EC is available only to a Union citizen who has first acquired a right of permanent residence under article 16.

A continuous period of five years’ legal residence completed before the Directive’s transposition date can count towards acquiring that right. Where, however, the citizen then spent more than two years in prison before that date, article 16(4) applies by analogy. The imprisonment weakens the integrative link with the host state and prevents acquisition based on the earlier residence.

Periods of imprisonment cannot count towards the necessary five years and interrupt continuity. If enforcement is delayed, the competent tribunal must assess the current threat and consider relevant events occurring after the original expulsion decision.

The respondent, an Italian citizen, lived in the United Kingdom from 1985. He was imprisoned between 2001 and 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 Asylum and Immigration Tribunal considered his challenge. The Court of Appeal subsequently decided in his favour: [2012] EWCA Civ 1199; [2013] 1 WLR 3339. The Supreme Court referred questions concerning Directive 2004/38/EC to the Court of Justice and, after receiving its preliminary ruling, reheard the appeal.

The central issues were whether permanent residence was a prerequisite for enhanced protection under article 28(3)(a), whether the respondent had acquired permanent residence by March 2007, and what matters the tribunal should address on remittal.

1. Appeal allowed. Lord Reed, with whom Lady Hale, Lord Wilson, Lord Mance and Lord Hughes agreed, held that possession of a right of permanent residence under article 16 of Directive 2004/38/EC is a prerequisite for the enhanced protection against expulsion in article 28(3)(a). Article 28 establishes graduated protection corresponding to the Union citizen’s degree of integration in the host state. The respondent therefore could not obtain either article 28(2) or article 28(3) protection unless he had acquired permanent residence.

2. A right of permanent residence could not be acquired before 30 April 2006, although a qualifying period of legal residence completed earlier could count towards its acquisition. “Legal” residence meant residence satisfying the Directive’s conditions or, for earlier periods, the relevant preceding EU instruments. The respondent’s imprisonment from 2001 to 2006 followed more than five years’ continuous legal residence but prevented that earlier residence from establishing permanent residence on 30 April 2006.

3. Article 16(4), under which permanent residence is lost after an absence exceeding two consecutive years, applied by analogy when deciding whether earlier residence could support acquisition on the transposition date. Imprisonment weakens the integrative link in a comparable way. Since the respondent had been imprisoned for more than two years by 30 April 2006, he acquired no right of permanent residence then or before the deportation decision of 23 March 2007.

4. Periods of imprisonment cannot themselves count towards the five years required by article 16. They also interrupt continuity. A new qualifying period could therefore begin no earlier than completion of the custodial sentence and depended upon satisfaction of the Directive’s conditions for legal residence.

5. The court expressed no view on whether imprisonment can cause the loss of a right of permanent residence which has already been acquired. The effect of imprisonment upon acquisition may differ from its effect upon retention.

6. The court declared that neither article 28(2) nor article 28(3) applied on 23 March 2007. It remitted the appeal to the Upper Tribunal. The tribunal was to consider whether permanent residence had since been acquired and, in any event, whether the respondent’s current conduct still represented a genuine and present threat capable of justifying expulsion.

1. United Kingdom Supreme Court: The Secretary of State’s appeal was allowed. The court declared that neither article 28(2) nor article 28(3) of Directive 2004/38/EC applied on the date of the deportation decision and remitted the respondent’s appeal to the Upper Tribunal.

2. Court of Justice of the European Union: On a reference made by the Supreme Court in [2016] UKSC 49, the Court of Justice ruled that permanent residence under article 16 is a prerequisite for article 28(3)(a) protection.

3. Court of Appeal: The court allowed the respondent’s case on enhanced protection, having considered that his integrative link with the United Kingdom remained intact: [2012] EWCA Civ 1199; [2013] 1 WLR 3339.

4. Asylum and Immigration Tribunal: The respondent challenged the Secretary of State’s deportation decision. The tribunal’s decision was appealed to the Court of Appeal.