England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/01/2016

Lord Justice Longmore:

Introduction

1. This appeal raises the question of the extent to which a sentence of imprisonment legally interrupts a period of continuous residence which is required for the purpose of acquiring a right not to be deported from one EU Member State to another. Chapter II of the Citizens' Directive (2004/38/EC) provides for rights of exit and entry from one EU country to another. Chapter III provides for rights of residence for e.g. workers and those with sufficient resources not to become a burden on the host member state, provided relevant conditions are met. Chapter IV confers a right of permanent residence on EU citizens "who have resided legally for a continuous period of five years in the host member state". This refers to a period of residence which complies with the conditions laid down in the directive in particular those set out in Chapter III, see Ziolkowski v Land Berlin C-424 and 425/10 [2013] 3 CMLR 37 at para 46. Chapter VI provides for restrictions on the right of residence on grounds of, inter alia, public policy and public security. By Articles 28.2 and 3, the host Member State may not expel a Union Citizen who has the right of permanent residence except on "serious" grounds of public policy or public security and, if he has resided for as long as the previous 10 years before the expulsion decision, only on "imperative" grounds of public security.
2. The Directive is transposed into English law by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) ("the 2006 Regulations"). Regulations 19(3) and 21 relevantly provide:-

"19(3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if –

a) that person does not have or ceases to have a right to reside under these Regulations;

b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21; or

c) the Secretary of State has decided that the person's removal is justified on grounds of abuse of rights in accordance with regulation 21B(2).

…

21(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.

…

(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.

(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who –

a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision…

(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles –

a) the decision must comply with the principle of proportionality;

b) the decision must be based exclusively on the personal conduct of the person concerned;

c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

e) a person's previous criminal convictions do not in themselves justify the decision.

(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin."

The Facts

3. Mr Warsame was born in Somalia on 9^th August 1988 but became a citizen of the Netherlands after his family moved to Holland. He arrived in the United Kingdom at Easter time in 1998 when he was about 10 years old. In March 2007 he was given a 4 months sentence for breaching a community order imposed on 30^th November 2006 for the offences of violent disorder and damage to property. He later committed the much more serious offences of falsely imprisoning a complainant, possessing an unlicensed firearm and two separate assaults occasioning actual bodily harm for which he was sentenced to a seven year term of imprisonment, on 27^th October 2009. He had, by that stage, already spent 461 days in custody. On 19^th January 2012 (while he was still in custody) the Secretary of State served notice of a decision to deport him pursuant to regulation 21 of the 2006 regulations because she considered that he had not acquired the right of permanent residence in the United Kingdom and because, as she put it in her decision notice she was satisfied that he:-

"would pose a genuine, present and immediate serious threat to the interests of public policy,"

if he were to be allowed to remain in the United Kingdom. She also ordered that he be detained because he was likely to abscond, a risk that was in due course to occur.

4. Mr Warsame appealed against the deportation decision and a First-Tier Tribunal allowed his appeal because, although he had not resided in the United Kingdom for 10 consecutive years before his first sentence in March 2007, they considered that he had a permanent right of residence in the United Kingdom, having resided here for 5 years before that first sentence, and that there were no serious grounds of public policy or public security which would justify his deportation. Permission was given to the Secretary of State to appeal this decision since the First-Tier Tribunal had failed to consider the matters set out in sub-section (5) of regulation 21. The Upper Tribunal reversed the First-Tier Tribunal because they found that failure to constitute an error of law. They remade the decision and found (para 15) that Mr Warsame was "a present and sufficiently serious threat affecting a fundamental interest of society namely the protection of the public from violent crime". They therefore dismissed his appeal. In the course of an application for review, made after permission to appeal had been sought, the Upper Tribunal became aware of the decision of this court in SSHD v FV (Italy) [2013] 1 WLR 3399 which was thought to decide that periods of imprisonment could be included when calculating length of residence for the purpose of regulation 21. On that basis it was arguable that Mr Warsame had been resident in the United Kingdom for more than 10 years and could only be deported if there were "imperative grounds" of public security. The Upper Tribunal reconvened with a different constitution and decided that there were no such "imperative grounds". They therefore discharged their earlier decision and, on 4^th December 2013, substituted a fresh decision allowing Mr Warsame's appeal. On 16^th January 2014 the Court of Justice of the European Union handed down their decisions in Onuekwere v SSHD and SSHD v MG (Portugal) (cases C-378/12 and 400/12) [2014] 1 WLR 2420 and 2441 the latter of which (according to the Secretary of State) decided that periods of imprisonment cannot be taken into account for the purposes of granting the enhanced protection provided for in article 28(3)(a). In the light of this development, Elias LJ granted permission to appeal to this court. Meanwhile Mr Warsame was granted bail and has absconded. We have therefore, had no argument from him or on his behalf.

The submissions

5. Mr Paul Greatorex for the Secretary of State submits

i) the effect of the sentence of imprisonment in 2009 is that Mr Warsame did not have 10 years' continuous qualifying residence counting back from the date of the deportation decision;

ii) applying MG (Portugal) Mr Warsame could still qualify for enhanced protection if he could show that he had resided in the UK during the ten years prior to imprisonment, depending on an overall assessment of whether integrating links have been broken, but Mr Warsame could not show this (whether this period had to be continuous, as the Secretary of State contends, or not) and in any event such an assessment had not been done; and

iii) the second Upper Tribunal therefore erred in law in holding that there had to be "imperative" rather than "serious" grounds for his expulsion.

He accepted that in the light of AA (Nigeria) v SSHD [2015] EWCA Civ 1249 he could not argue (in this court) that Mr Warsame had no permanent right of residence since, on any view, he had resided in the United Kingdom for 5 years. He reserved his position on that for a higher court in due course, if necessary.

SSHD v MG (Portugal)

6. MG (Portugal) is central to the appeal. The Upper Tribunal referred certain questions to the Court of Justice of the European Union which were rephrased by the Court of Justice as follows (paras 22 and 29):-

"whether the ten year period of residence referred to in article 28(3)(a) of the Directive 2004/38 must be calculated by counting backwards (from the decision ordering the expulsion of the person concerned) or forwards from the commencement of that person's residence and … whether that period must be continuous"

and

"whether article 28(3)(a) of the Directive 2004/38 must be interpreted as meaning that a period of imprisonment is capable of interrupting the continuity of the period of residence for the purposes of that provision and may, as a result, affect the decision regarding the grant of enhanced protection provided for thereunder, even where the person concerned resided in the host member state for the ten years prior to imprisonment."

The court answered the first question by holding (para 28) that the ten year period of residence must in principle be continuous and must be calculated by counting back from the date of the decision ordering expulsion.

7. The answer to the second question is somewhat more Delphic. It is contained in paras 33 to 38:-

"33. It follows that periods of imprisonment cannot be taken into account for the purposes of granting the enhanced protection provided for in article 28(3)(a) of Directive 2004/38 and that, in principle, such periods interrupt the continuity of the period of residence for the purposes of that provision.

34. As regards the continuity of the period of residence, it has been stated in para 28 above that the ten year period of residence necessary for the granting of enhanced protection as provided for in article 28(3)(a) of Directive 2004/38 must, in principle, be continuous.

35. As for the question of the extent to which the non-continuous nature of the period of residence during the ten years preceding the decision to expel the person concerned prevents him from enjoying enhanced protection, an overall assessment must be made of that person's situation on each occasion at the precise time when the question of expulsion arises: see the Tsakouridis case [2010] ECR I-11979, para 32.

36 In that regard, given that, in principle, periods of imprisonment interrupt the continuity of the period of residence for the purposes of article 28(3)(a) of Directive 2004/38, such periods may – together with the other factors going to make up the entirety of relevant considerations in each individual case – be taken into account by the national authorities responsible for applying article 28(3) of that Directive as part of the overall assessment required for determining whether the integrating links previously forged with the host member state have been broken, and thus for determining whether the enhanced protection provided for in that provision will be granted: see Tsakouridis case, para 34.

37. Lastly, as regards the implications of the fact that the person concerned has resided in the host member state during the ten years prior to imprisonment, it should be borne in mind that, even though – as has been stated in paras 24 and 25 above – the ten year period of residence necessary for the grant of the enhanced protection provided for in article 28(3)(a) of Directive 2004/38 must be calculated by counting back from the date of the decision ordering that person's expulsion, the fact that the calculation carried out under that provision is different from the calculation for the purposes of the grant of the right of permanent residence means that the fact that the person concerned resided in the host member state during the ten years prior to imprisonment may be taken into consideration as part of the overall assessment referred to in para 36 above.

38. In the light of the foregoing, the answer to [the question] is that article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that a period of imprisonment is, in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host member state for the ten years prior to imprisonment. However, the fact that that person resided in the host member state for the ten years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host member state have been broken."

8. When the Upper Tribunal received these answers to the questions it had asked, it dismissed the Secretary of State's appeal on the basis that the grounds for expulsion were not serious grounds of public policy or public security so that, in any event, they were not "imperative" grounds. If it had been necessary to consider the true interpretation of MG (Portugal) they would probably have given permission to appeal to this court, see [2014] UKUT 00392. Their discussion of the arguments to which they listened at paras 41-49 is illuminating.
9. Be all that as it may, Mr Greatorex submits that FV (Italy), on which the second Upper Tribunal determination depended, is no longer good law. He further submits that any sentence of imprisonment in the ten years before the deportation order must in principle prevent an applicant from accruing 10 years' residence. He accepts that there is a "maybe" category of cases under MG (Portugal) where a person has resided in the host state during the ten years prior to imprisonment, depending on an overall assessment of whether integrating links have been broken, and that in such cases it might be relevant to determine, by way of overall assessment, the degree of integration in the host member state or the extent to which links with the original member state have been broken. But he submits that in this case there was no continuous 10 year period of residence before the first imprisonment in 2007 and that, if the appellant wanted to show that there were separate periods of non-imprisonment which added up to 10 years, it would be up to him to show that, which Mr Warsame has not sought to do. If Mr Warsame wanted, in that connection, to argue that it was not the length of the term of imprisonment imposed but the length of the term actually served, it would be up to him to do so.

Disposition

10. For my part I accept those submissions and accept that in the light of MG (Portugal) a decision based on FV (Italy) cannot be sustained. It cannot be said that Mr Warsame had not been in prison in the 10 years preceding expulsion nor can it be said that there was a 10 year period of residence between Easter 1998 and March 2007 when he received the first sentence of imprisonment. Nor is there any finding from the Tribunal below that there were 10 qualifying, albeit non-continuous, years of residence. Good Friday occurred on 10^th April 1998. The time between 10^th April 1998 and 23^rd July 2008 when Mr Warsame was remanded in custody in respect of the offences for which he was sentenced on 27^th October 2009 is 10 years 3 months and 13 days. But the 2007 sentence was a 4 months sentence and, if that 4 months is subtracted from the above figure, it becomes a 9 year figure. There is thus no basis for saying that what Mr Greatorex categorised as the "maybe" aspects of MG (Portugal) are applicable in this case.
11. In those circumstances the second Upper Tribunal determination must be set aside. There has been no application in this event to appeal or set aside the first determination of the Upper Tribunal which therefore remains a valid and subsisting determination. The end result is, therefore, that Mr Warsame's original appeal from the Secretary of Stare's decision to deport him is dismissed and the Secretary of State's appeal against the second Upper Tribunal determination is allowed.

Lord Justice Lewison:

12. I agree.

Lord Justice Kitchin:

13. I also agree.

C5/2014/2340

IN THE COURT OF APPEAL

ON APPEAL FROM THE UPPER TRIBUNAL

IMMIGRATION AND ASYLUM CHAMBER

Longmore, Lewison and Kitchin LJJ

B E T W E E N:

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

- and -
AHMED YOUSEF WARSAME

Respondent

______________________________________________________________ Draft ORDER ______________________________________________________________

UPON HEARING Counsel for the Appellant and the Respondent not appearing or being represented

IT IS ORDERED THAT:

14. The appeal against the second determination of the Upper Tribunal dated 4 December 2013 be allowed.
15. The Respondent's appeal against his deportation do stand dismissed in accordance with the first determination of the Upper Tribunal dated 29 August 2012.
16. The Respondent do pay the Appellant's costs to be subject to detailed assessment if not agreed.

Dated etc.