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This judgment concerns the right to permanent of residence in the UK of an EU national who had served four years in prison for manslaughter.rahman_shams-311x288

Background

The respondent came to the UK in 1987 and spent four years in prison from 2001 for manslaughter. Eight months after his release, the Secretary of State decided to deport him under the Immigration (European Economic Area) Regulations 2006, reg 9(3)(b) and reg 21; reg 21 gave effect to Directive 2004/38, art 28. The respondent had no right of permanent residence under art 16 of that Directive, not having resided legally in the UK for a continuous five-year period before the Directive’s entry into force in 2006.

The Court of Appeal accepted that the respondent had resided in the UK for 10 years before the deportation decision as art 28(3)(a) required, notwithstanding his imprisonment, and that this four-year period of imprisonment for manslaughter did not affect his permanent residence in the UK for a continuous 10-year period prior to the decision to deport him.

The Secretary of State appealed against this decision. The principal issues were: whether enhanced protection was available under art 28(3)(a) to an EU citizen who did not enjoy a right of permanent residence under art 16 or therefore enjoy protection under art 28(2); and the principles on which protection was available under art 28(2) and art 28(3)(a).

Supreme Court

The Supreme Court referred the following questions to the CJEU:

  • Whether enhanced protection under art 28(3)(a) depends upon the possession of a right of permanent residence within art 16 and art 28(2) of the Directive.

In the event that this question is answered negatively, two further questions:

(2) Whether the period of residence for the previous ten years, to which art 28(3)(a) refers, is (a) a simple calendar period looking back from the relevant date (here that of the decision to deport), including in it any periods of absence or imprisonment, (b) a potentially non-continuous period, derived by looking back from the relevant date and adding together period(s) when the relevant person was not absent or in prison, to arrive, if possible, at a total of ten years’ previous residence.

(3) What the true relationship is between the ten-year residence test to which article 28(3)(a) refers and the overall assessment of an integrative link.

Comment

This case was heard against a backdrop of growing concern about foreign nationals offenders in the UK. In the work of the Immigration Directorates (3 June 2016), HC Paper No.22, the Home Affairs Committee concluded that the continued failure by the Home Office to remove Foreign National Offenders (13,000) was undermining confidence in the immigration system, and in the UK’s EU membership. Progress was too slow and many were being housed in prisons at great expense, with 5,789 living in communities. Of the predominant foreign nationalities in UK prisons, the top three were from EU countries. The committee found that the Home Office had consistently failed to tackle this issue: EU prisoners should be the first to be removed and accepted by their home countries. The report can be read here.