Secretary of State for the Home Department v FV (Italy) [2012] EWCA Civ 1199

Case No C5/2008/1815[2012] EWCA Civ 1199
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
SENIOR IMMIGRATION JUDGE STOREY
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14/09/2012
Before
LORD JUSTICE PILLLORD JUSTICE AIKENSLADY JUSTICE RAFFERTY
Between
The Secretary of State for the Home DepartmentAppellantFV (Italy)Respondent
Mr Kieron Beal QC (instructed by the Treasury Solicitor) for AppellantMr Nick Armstrong (instructed by Messrs Luqmani Thompson & Partners) for RespondentHearing Hearing dates : 30 & 31 May 2012
JudgmentLord Justice Pill :
[1]This is an appeal by the Secretary of State for the Home Department (“the Secretary of State”) against a decision of the Asylum and Immigration Tribunal, Senior Immigration Judge Storey presiding, notified on 1 May 2008. The Tribunal allowed an appeal by FV (“the respondent”) against the dismissal by the Tribunal on 1 October 2007 of FV’s appeal against the decision of the Secretary of State on 17 May 2007 to confirm a deportation decision made on 23 March 2007.[2]FV is a citizen of Italy and was born on 18 December 1957. He arrived in the United Kingdom on 3 March 1985, aged 27, and married a UK citizen in August 1985. He and his wife have five children. They bought a property in joint names. While his wife worked as a teacher, he cared for the children. He left the marital home in 1998 and in May 1999 moved into accommodation with Mr Edward Mitchell, with whom he had a turbulent relationship.[3]On 1 March 2001, FV killed Edward Mitchell. Both men had been drinking. A fight occurred and the respondent struck Mitchell at least 20 blows to the head with weapons, including a hammer. He then strangled Mitchell with the flex from an iron.[4]The respondent was convicted of manslaughter at the Central Criminal Court, the jury holding that murder was reduced to manslaughter by reason of provocation. He was sentenced to 8 years imprisonment on 2 May 2002. The respondent had previous convictions for assault on police, driving a motor vehicle while unfit through drink or drugs and driving while disqualified.[5]On 3 July 2006, the respondent was released to hostel accommodation but, because no place was available to him, he was rearrested. He subsequently received damages of £25,000 for the unlawful imprisonment which followed.[6]A series of points arise as to the status of the respondent in the United Kingdom and as to the extent to which the power of the Secretary of State to deport him is limited by the requirements of Directive 2004/38/EC of 29 April 2004 (“the Directive”) and Regulations made under it, the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). The purposes of the Directive are set out in recitals which include:
“17. Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure. . . . 22. The Treaty allows restrictions to be placed on the right of free movement and residence on grounds of public policy, public security or public health. In order to ensure a tighter definition of the circumstances and procedural safeguards subject to which Union citizens and their family members may be denied leave to enter or may be expelled, this Directive should replace Council Directive 64/221/EEC of 25 February 1964 on the coordination of special measures concerning the movement and residence of foreign nationals, which are justified on grounds of public policy, public security or public health. 23. Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin. 24. Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. . . ”
The subsequent jurisprudence of the CJEU appears to me to adhere closely to the principles stated in those paragraphs.[7]The ground of appeal to the Immigration Tribunal was that “the decision to deport is unlawful and not consistent with the high threshold set under paragraph 21(4)(a) Immigration (European Economic Area) Regulations 2006.” Regulation 21, transposing article 28 of the Directive, provides, in so far as is material: “(1) In this regulation a ‘relevant decision’ means an EEA decision taken on the grounds of public policy, public security or public health. (2) A relevant decision may not be taken to serve economic ends. (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; or(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989. (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. (7) . . .” (a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or (b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989. (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.[8]In LG inthe Court of Appeal ([2008] EWCA Civ 190) Carnwath LJ referred, at paragraph 14, to the levels of protection provided:
“As appears from the emphasised words above in Regulation 21(1)-(4), the 2006 Regulations have introduced a new hierarchy of levels of protection, based on criteria of increasing stringency: (1) A general criterion that removal may be justified 'on the grounds of public policy, public security or public health'; (2) A more specific criterion, applicable to those with permanent rights of residence, that they may not be removed 'except on serious grounds of public policy or public security'; (3) The most stringent criterion, applicable to a person 'who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision', who may not be removed except on 'imperative grounds of public security'.” (1) A general criterion that removal may be justified 'on the grounds of public policy, public security or public health'; (2) A more specific criterion, applicable to those with permanent rights of residence, that they may not be removed 'except on serious grounds of public policy or public security'; (3) The most stringent criterion, applicable to a person 'who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision', who may not be removed except on 'imperative grounds of public security'.”
[9]Regulation 15, to which regulation 21(3) refers, provides:
“15. Permanent right of residence (1) The following persons shall acquire the right to reside in the United Kingdom permanently— (a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; (b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years; (c) a worker or self-employed person who has ceased activity; (d) the family member of a worker or self-employed person who has ceased activity; (e) a person who was the family member of a worker or self-employed person where— (i) the worker or self-employed person has died; (ii) the family member resided with him immediately before his death; and (iii) the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease; (f) a person who— (i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and (ii) was, at the end of that period, a family member who has retained the right of residence. (2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.

(b) ”

[10]Regulation 19(3)(b) provides, in so far as is material:
“. . . an EEA national who has entered . . . may be removed if— (a) . . . or (b) the Secretary of State has decided that the person’s removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.”
[11]I set out article 16 of the Directive because of the frequent reference to it in the authorities:
“1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III. 2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years. 3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country. 4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.”
[12]Residence under regulation 21(3) must, in accordance with regulation 15(1)(a), be residence “in accordance with these Regulations”. That requirement arises from articles 7 and 16 of the Directive and is reflected in regulations 3 to 10 of the Regulations. They include provisions for workers, including workers who have ceased activity, family members of UK nationals and family members who retain the right of residence, for example following divorce. On my findings, it is not necessary to consider the requirements in detail.[13]Notice of a decision to make a deportation order was served on the respondent with a letter of 23 March 2007 giving reasons (an earlier decision dated 16 November 2004 having been withdrawn). Reference was made to regulation 21(4) but not to regulation 21(3). Revised reasons were served on 17 May 2007. The point was then taken that the respondent had not obtained a permanent right to reside in the United Kingdom until the 2006 Regulations but on the ground, now accepted by the Secretary of State to be erroneous, that “residence as an EEA national can only accrue from when the 2000 Regulations came into effect”. [Immigration (European Economic Area) Regulations 2000, predecessors to the 2006 Regulations]. Residence, in accordance with the 2006 Regulations, was mentioned but the quality of the residence between 1985 and 2000 was not challenged, even as a fall-back position. Reliance was placed on a point now found to be erroneous. By virtue of regulation 15(2), the right of permanent residence, once acquired, can be lost only through absence from the United Kingdom for a period exceeding two consecutive years and there has been no such absence.[14]For the respondent, Mr Armstrong accepted that he needs to succeed on the regulation 21(4)(a) test to defeat the deportation order. That was the issue before the Tribunal at both hearings. He does not accept that the Secretary of State is entitled to challenge that the respondent has a permanent right of residence under regulation 21(3).[15]I refer to the decisions of the Tribunals. The first issue I consider is whether the Secretary of State is entitled now to take a point on regulation 21(3) or whether regulation 21(4)(a) is to be considered on the basis that a permanent right of residence under regulation 21(3) is to be accepted when entitlement under regulation 21(4)(a) is considered. However, to avoid duplication, I refer also at this stage to the findings of the Tribunal on the substantive issue, whether the conduct of the respondent in any event disentitles him to protection under either paragraph in regulation 21.

The Tribunal Findings

[16]Following a hearing in August 2007, at which the Secretary of State was represented by a presenting officer, the Tribunal in its determination of 1 October 2007 (“the 2007 Tribunal”) made the briefest of references to the period before 2001. It included reference to the respondent’s previous criminal history. The Tribunal referred to the ground of appeal, namely protection under regulation 21(4)(a). The respondent’s submissions under that sub-paragraph are set out by reference to his conduct including the submission that “the risk of re-offending . . . being only a medium risk, any grounds of public security in his case would not be “imperative”.[17]The Secretary of State’s submissions are also set out. They were confined to a submission that an imperative ground of public security did, on the evidence, arise.[18]The Tribunal’s findings, set out at paragraphs 33-54, were similarly confined, though included the required references to regulation 21(5) and 21(6). The Tribunal, having considered probation reports, stated, at paragraph 37:
“A medium risk of the appellant killing by a deliberate act (albeit such killing may be in circumstances of provocation for the purposes of the law of manslaughter) any potential victim being a member of the public whose identity cannot be ascertained in advance.”
[19]The Tribunal stated, at paragraph 44:
“We conclude that the medium risk of the appellant killing again is a sufficiently serious threat to public security as to fall within the highest level of calculus within the regulations, and that there exist imperative grounds of public security for the decision to deport him. Regulation 21(4) is thus satisfied.”
[20]The Tribunal then considered the factors specified in regulation 21(5) and repeated its conclusion at paragraph 49:
“In view of the matters set out above, we are satisfied that the appellant’s conduct represents a genuine threat. It is a present threat because of the risk assessment referred to above. It affects one of the fundamental interests of society, which is that society’s members should not be subject to the risk of homicide if that can be avoided. It is sufficiently serious to require deportation because it is, in simple terms, a matter of life and death.”
[21]Regulation 21(6) factors were considered at paragraph 52, the age and state of health of the respondent, separation from his wife, unspecified contact with his children and an ability to find work. It was noted that the respondent’s conduct while in custody had been satisfactory. It was stated that the term of residence in the UK had been substantial but the Tribunal was not satisfied that the evidence indicated that his social and cultural integration into the UK has been very great. The Tribunal concluded that none of the considerations arising under regulation 21(6), either separately or cumulatively, contradicted the decision to deport.[22]It must also be noted that the Tribunal stated, at paragraph 38:
“As the appellant has been resident in the UK for a continuous period of at least ten years, he may, by reason of Regulation 21(4) of the 2006 EEA Regulations, be removed only on imperative grounds of public security.”
No submissions were made about, or consideration given to, regulation 21(3) and the permanent right of residence. It was not suggested that the regulation 21(4) claim failed at the outset for lack of compliance with regulation 21(3). No consideration was given to regulation 21(3) or to whether a right of permanent residence had been established.[23]On 16 October 2007, reconsideration was ordered by a Senior Immigration Judge, who stated:
“In particular it is questionable whether the tribunal could reasonably draw the conclusion that there was a risk of the appellant killing again from the medium risk of re-offending identified in the probation reports given that the probation reports did not identify a risk of serious harm to others and it is arguable in any event that the tribunal erred in their interpretation of ‘imperative grounds of public security’ in concluding that a risk to an individual member of the public as opposed to a risk to the public as whole qualified the appellant for deportation.”
[24]In the determination of 1 May 2008 (“the 2008 Tribunal”), the Tribunal first noted the contents of the Secretary of State’s letter of 17 May 2007. The Tribunal then stated, at paragraph 3:
“When the appeal came before Immigration Judge Dineen and Sir Jeffrey James KBE, CMG on 28th August 2007, it was submitted that the appellant, having resided in the United Kingdom for 16 years before his arrest on the manslaughter charge in 2001, did indeed, contrary to what was asserted in the ‘reasons for deportation’ letter, fall within the terms of reg 21(4) of the EEA Regulations 2006, under which a decision may not be taken to remove an EEA national who has resided in the United Kingdom for a continuous period of at least ten years prior to the decision “except on imperative grounds of public security.”
The panel agreed that this was the regulation governing the appellant’s case, but found that such imperative grounds were made out. Our task on this reconsideration, which was ordered by Senior Immigration Judge Spencer on 16th October 2007, is to determine whether the panel made a material error of law in so finding, and if they did, to substitute a fresh decision of our own. There is as yet no binding authority on the meaning of “imperative grounds”, and we are grateful to [counsel] for their helpful submissions on what the ambit of this phrase might be, and whether it is apt to embrace the circumstances of the appellant.” [emphasis in original] That is a plain statement of the issue the Tribunal was entitled to and did consider. It is also a plain statement of what the Tribunal considered the 2007 Tribunal had resolved: an issue under regulation 21(4).[25]The Tribunal considered in considerable detail whether the test in regulation 21(4) was met. Having considered the documentary evidence, it stated, at paragraph 8:
“There was certainly no risk of his killing random members of the public.”
The Tribunal summarised the offence of manslaughter:
“Their turbulent relationship ended abruptly two years later when, after a heavy day’s drinking, a fight began at the apartment and the appellant ended up belabouring his flat-mate with a hammer and strangling him with wire flex.”
There was a high risk of violence involving his estranged wife “if he got into an argument with her”. She had not sought any court injunction or non-molestation order.[26]The Tribunal noted that there was no binding authority on regulation 21(4) and referred to the judgment of Carnwath LJ in LG (Italy) in the Court of Appeal:
“To my mind there is not simply a difference of degree, but a qualitative difference: in other words, level three [in the hierarchy of seriousness] requires, not simply a serious matter of public policy, but an actual risk to public security, so compelling that it justifies the exceptional course of removing someone who (in the language of the Preamble to the . . . [Directive] has become ‘integrated’ by ‘many years’ residence in the host state.”
[27]It was concluded, at paragraph 11:
“As Mr Luqmani put it, we do not have to establish for ourselves the true ambit of imperative grounds. Whatever that phrase means, the appellant’s circumstances do not fall within it. We agree. While the Secretary of State might have had an arguable case that the appellant’s deportation was justified on “serious grounds of public policy”, it cannot be justified on these facts on “imperative grounds of public security.”
(emphasis in original) The appeal was allowed.[28]The Secretary of State sought permission to appeal. While the grounds of appeal repeated the erroneous point in relation to pre-2006 Regulations residence, the first skeleton argument for the Secretary of State, settled by counsel, stated:
“This case concerns the meaning of the term ‘imperative grounds of public security’ in the context of the proposed deportation of any national who has been resident in the UK for over 10 years but who has committed a very serious criminal offence, manslaughter, (after committing a sequence of offences, which often included violence).”
There was no reference, in a 17 paragraph submission, to a challenge to the right of permanent residence.[29]The application for permission was adjourned, first pending determination in the Tribunal of LG (Italy), following its remittal by the Court of Appeal, and, in October 2009, pending judgment in OP (Colombia). Following the filing of amended grounds, permission to appeal was granted on 5 September 2011, over three years after the decision challenged.[30]The respondent has been convicted of further offences, battery in April 2011, being drunk and disorderly in September 2011, battery in December 2011 and having a bladed article and battery in January 2012. The 2012 convictions put the respondent in breach of a suspended sentence imposed for the offence of battery. The respondent was sentenced to 16 weeks imprisonment.

Submissions on procedure

[31]It was submitted on behalf of the respondent that the permanent right of residence was not challenged before the Tribunal either in 2007 or in 2008. On both occasions, the Secretary of State’s case was limited to a claim that the exception in regulation 21(4), read with regulation 21(5) and (6), was satisfied. That the claim was so limited is clear from the summary of “submissions on behalf of the [Secretary of State]” at paragraphs 26 to 32 of the 2007 Tribunal’s determination which claims only that deportation was justified on “imperative grounds of public security” and in the finding of the Tribunal to that effect. No reference was made, either in submissions or in the findings, to regulation 21(3).[32]The 2008 Tribunal correctly stated, at paragraph 3, that, on the earlier occasion, the panel agreed that “imperative grounds of public security” was “the regulation governing the appellant’s case”. The 2007 Tribunal had stated that “such imperative grounds were made out” and that the task on reconsideration was to determine whether the Tribunal had made “a material error of law in so finding” (emphasis added). It would have been open to the Secretary of State to seek to uphold a deportation order on a different ground though whether the Tribunal would have permitted such a submission when it had not been made on the earlier occasion is open to question.[33]On behalf of the Secretary of State in this court, it was submitted that the permanent right to reside in the United Kingdom under the 2006 Regulations had been challenged in the second reasons for refusal of 17 May 2007, albeit on erroneous grounds, and the Secretary of State should be permitted to take the point now. The letter did not, as a second line of argument, submit that, even if pre-2000 residence could be taken into account, the permanent right of residence was not established and that point was not taken before either Tribunal. It was not argued that regulation 21(4) could not be considered without reference to regulation 21(3).[34]In written submissions it was accepted on behalf of the Secretary of State that the 2007 Tribunal appears to have proceeded on the assumption that the requirement of a permanent right of residence was established by the respondent. It was submitted to be incumbent, however, on the 2008 Tribunal to consider and adjudicate on the respondent’s challenge to the Secretary of State’s decision in its entirety. The 2008 Tribunal had erred in law to the extent that it had simply assumed that the stricter test should be applied without giving reasons for that decision. Further, it was submitted that, because a point of law of public importance was involved, the Secretary of State should be permitted to withdraw any concession which is held to have been made. It was accepted to be open to the respondent, on a re-hearing, to seek to establish that he had a right of permanent residence but he should now be required to do so. It was further submitted that, since the United Kingdom is obliged to give effect to the Directive, implemented in the 2006 Regulations, the issue should have been considered by the Tribunal, whether or not the point was taken.

Conclusion on procedure

[35]I do not consider that the Secretary of State should now be permitted to argue that a permanent right of residence had not been established:(a) It is clear that the point was not taken at the Tribunal hearing in 2007. The 2007 Tribunal carefully summarised the submissions on behalf of the Secretary of State and they were limited to the issue of “imperative grounds of public security” under regulation 21(4).(b) The pre-2000 point was taken in one of the two letters giving reasons for deportation but it was not pursued before the Tribunal. Nor, as a fall-back position was it argued, as it could have been, that even if pre-2000 residence counted, the requirement had not been satisfied. Neither the bad point nor the potentially arguable point was taken.(c) It is far from uncommon that points taken by the Secretary of State in decision letters are not pursued before the Tribunal when the decision is challenged. The Tribunal conducts a fresh and comprehensive review based on the issues raised before it. A strict view is normally taken of any attempt to raise further issues, whether by applicant or Secretary of State, at a later stage.(d) The 2007 Tribunal’s findings were plainly limited to a consideration of the regulation 21(4) issue and led to a conclusion that the requirement in regulation 21(4), read with regulation 21(5) and (6), was satisfied. The 2008 Tribunal was equally clear in stating what it was deciding: a challenge to the finding that the deportation was justified “on imperative grounds of public security”.(e) Reference by the 2008 Tribunal to the reasons letter of 17 May 2007, and to the general background, is a customary part of Tribunal decisions and does not necessarily identify issues. At paragraph 3, the 2008 Tribunal made plain what it understood the 2007 Tribunal to have decided and that its task, on reconsideration, was to determine whether the Tribunal had erred “in so finding”. Both Tribunals went on to consider the effect of the expression “imperative grounds of public security”. They reached opposing conclusions.(f) There is no duty on a Tribunal to take a point on behalf of the Secretary of State which the Secretary of State has not taken in the particular case. Had the establishment of permanent residence been in issue, submissions on the requirement of the Regulations would have been expected from the Secretary of State and put to the respondent, especially if the rights of a Union citizen who has resided in the United Kingdom for over 20 years, and been married to a UK citizen, were to be challenged.(g) In 2007, neither the parties nor the Tribunal had the advantage of the further learning on regulation 21 and article 28 now available but, the issue then having been confined as described above, it would be unjust to permit the Secretary of State to raise the issue in 2012. The appellant would be required to rely on events prior to 2001 when he was living in very different circumstances from those subsequently and now. It would be unjust to require him to satisfy by evidence the requirements of regulation 15 so many years after the event and five years after the first Tribunal decision. He might be able to establish it because there had been residence since 1985 and, for example, he cared for his young children but he should not in the circumstances now be required to do so. Regulation 21(4)(a) a). Residence[36]It is necessary to consider the residence requirement under regulation 21(4) and then the expression “imperative grounds of public security”. Mr Armstrong accepts that the respondent, on the premise that he has a right of permanent residence, must satisfy the requirement of ten years residence on the current test.[37]On behalf of the Secretary of State, Mr Beal QC accepts that pre-April 2006, and pre-2000 qualifying residence, may be taken into account for the purposes of the application of the 2006 Regulations, in order to read them in conformity with Directive rights the respondent may have. The Secretary of State further accepted in written submissions that, having regard to mitigating features identified by Carnwath LJ in LG (Italy) in the Tribunal at paragraphs 79 to 82 (to be considered), an EU worker will not lose the right of permanent residence even if subjected to a significant period of imprisonment.[38]Following the scheme of the Regulations, the Secretary of State accepts that a Union citizen who has acquired a permanent right of residence in the United Kingdom may (unless absent for two years) only be expelled on serious grounds of public policy or public security. A greater degree of justification is required to expel such a citizen. It is also accepted that a Union citizen who has resided in the United Kingdom for the previous 10 years may only be expelled on “imperative grounds of public security” and that the circumstances in which such a power will be exercised will be rare.[39]If, as I find, the right of permanent residence cannot be challenged, the next question is whether the respondent has protection under regulation 21(4) as being a Union citizen who “has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision”, that is the decision to deport in 2007. The requirements have been considered by the CJEU in Tsakouridis (Case C-145/09), considered more recently in PI (Case C-349/09, judgment 22 May 2012). Tsakouridis is a Greek national, born in Germany in 1978 and since October 2001 having an unlimited residence permit in Germany. From March to mid-October 2004, he ran a pancake stall in Greece and he returned there in mid-October 2005. He was arrested in November 2006 on an International Arrest Warrant and transferred to Germany on 19 March 2007. He has a bad criminal record including convictions in August 2007 on 8 counts of illegal dealing, as part of an organised group, in substantial quantities of narcotics. He was sentenced to 6½ years imprisonment. On 19 August 2008, the Regional Administration told him that he had lost the right of residence in Germany and was liable to be the subject of an expulsion measure.[40]The Court stated, at paragraphs 31 to 37: “31. . . . The fact remains that, in view of the wording of article 28(3) of [the Directive], the decisive criterion is whether the Union citizen has lived in that Member State for the 10 years preceding the expulsion decision.” [Regulation 21(4) transposes article 28(3)]. “32. As to the question of the extent to which absences from the host Member State during the period referred to in Article 28(3)(a) of Directive 2004/38, namely the 10 years preceding the decision to expel the person concerned, prevent him from enjoying enhanced protection, an overall assessment must be made of the person’s situation on each occasion at the precise time when the question of expulsion arises.33. The national authorities responsible for applying Article 28(3) of Directive 2004/38 are required to take all the relevant factors into consideration in each individual case, in particular the duration of each period of absence from the host Member State, the cumulative duration and the frequency of those absences, and the reasons why the person concerned left the host Member State. It must be ascertained whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned.34. The fact that the person in question has been the subject of a forced return to the host Member State in order to serve a term of imprisonment there and the time spent in prison may, together with the factors listed in the preceding paragraph, be taken into account as part of the overall assessment required for determining whether the integrating links previously forged with the host Member State have been broken.35. It is for the national court to assess whether that is the case in the main proceedings. If that court were to reach the conclusion that Mr Tsakouridis’s absences from the host Member State are not such as to prevent him from enjoying enhanced protection, it would then have to examine whether the expulsion decision was based on imperative grounds of public security within the meaning of Article 28(3) of Directive 2004/38.36. It should be recalled that, in order to provide the national court with an answer which will be of use to it and enable it to determine the case before it, the Court may find it necessary to consider provisions of European Union law which the national court has not referred to in its questions (see, to that effect, Case C-374/05 Gintec [2007] ECR I-9517, paragraph 48).37. If it were concluded that a person in Mr Tsakouridis’s situation who has acquired a right of permanent residence in the host Member State does not satisfy the residence condition laid down in Article 28(3) of Directive 2004/38, an expulsion measure could in an appropriate case be justified on ‘serious grounds of public policy or public security’ as laid down in Article 28(2) of Directive 2004/38.” [Regulation 21(3)][41]The Court also considered the meaning of the expression “imperative grounds of public security” to which I will turn later. To be weighed against that factor, in the view of the Court, is the risk of “compromising the social rehabilitation of the Union citizen in the state in which he has become genuinely integrated, which, as the Advocate General observes in point 95 of his Opinion, is not only in his interests but also in that of the European Union in general” (paragraph 50). The test is whether the Union citizen has become “genuinely integrated” in the Member State.[42]Unlike the present case, Tsakouridis was involved primarily with consideration of absences from Germany, 6 months in 2004 and departure in mid-October 2005. The administrative authorities in Germany determined, on 19 August 2008, that Tsakouridishad “lost the right of entry and residence in Germany and informed him that he was liable to be subject to an expulsion measure to Greece”. While the absences from Germany were plainly considered by the Court to be relevant to the question of integration, no reference was made to the substantial time spent in custody in Germany after 19 March 2007 as defeating genuine integration.[43]The Advocate General in Tsakouridis had adopted the same approach to the absences from Germany. The first absence, for about 6½ months in 2004, involved what appeared to be seasonal employment in Greece. As to that, the Advocate General stated, at paragraph 127:
“I consider that it may be conceded that an absence for that reason did not affect the period required for obtaining enhanced protection under Article 28(3)(a) of Directive 2004/38.”
[44]The Advocate General took a different view of the second absence, from October 2005 until March 2007:
“In contrast, Mr Tsakouridis’ second absence, from the middle of October 2005 until March 2007, which was interrupted not of his own accord but because he was subject to an enforced return to the host Member State following a legal decision, interrupted the 10-year period. I consider that such an absence shows, in actual fact, that the Union citizen established himself in another Member State and that, therefore, the link between him and the host Member State is no longer as strong and may even be totally broken.”
[45]The approach to article 28(3) in Tsakouridis limits the potential for anomalies. At the extremes, a short period of imprisonment will not in itself defeat integration and a long period of imprisonment following a short period of lawful residence will not establish it. It will, in some cases, be more difficult to satisfy an ‘integration’ test than a test based on compliance with Regulation 15.[46]In PI, the applicant was born in Italy in September 1965 and had lived in Germany since 1987. In 2006, he was sentenced to 7½ years imprisonment for sexual assault, sexual coercion and rape of a minor, offences committed many years earlier. He had been in custody since 10 January 2006 when, on 6 May 2008, it was decided administratively that he had lost the right to enter and reside in Germany. An order was made requiring him to leave the territory.[47]In addition to considering the meaning of the expression “imperative grounds of public security”, which was the question referred, the Court in its ruling recognised the test to be applied before expulsion:
“Before taking an expulsion decision, the host Member State must take account of considerations such as how long the individual concerned has resided in its territory, his/her age, state of health, family and economic situations, social and cultural integration into that state and the extent of his/her links with the country of origin.”
In both cases, the Court (Grand Chamber) highlighted the integration test as the appropriate one when considering whether article 28(3) applied.[48]Reliance is placed on the provision in regulation 21(4) of the need for residence of “at least 10 years prior to the relevant decision.” It is claimed that the relevant period would be from May 1997 to May 2007, an approach claimed to have been supported by the ECJ in Tsakouridis. It was also submitted that nothing in Tsakouridis suggests that periods of time spent in prison count as qualifying periods of residence for the purposes of article 28(3) and regulation 21(4). It was submitted by Mr Beal that member states may decline to recognise what is described as enhanced protection, that is protection under regulation 21(4), because of the nature and quality of the residence over the 10 year period immediately preceding the expulsion decision.[49]Mr Beal submitted that the claim to 10 years residence is defeated by the time spent in prison during the period before the decision to deport was made. Reliance is placed by the Secretary of State on the decision of this Court in HR (Portugal) v Secretary of State [2010] 1 WLR 158. HR was a Portuguese national and had been present in the United Kingdom for just over 10 years, of which a number had been served in prison. He claimed the highest level of protection. Recitals 23 and 24 of the Directive, cited at paragraph 6 above, were considered and it was held that “resided” in article 28(3), as in 28(2) of the Directive, means “resided in the exercise of the rights and freedoms conferred by the Treaty” (Stanley Burnton LJ at paragraphs 22 and 23, Elias LJ at paragraphs 31 and 35).[50]Stanley Burnton LJ stated, at paragraph 23:
“An EEA national who, having been convicted of a crime, is detained for a significant period in prison or other penal institution, is not resident in this country for the purposes of Article 28.3.”
[51]Elias LJ stated, at paragraph 35:
“In my judgment it would not be a purposive construction of these provisions to disallow periods of imprisonment following conviction to count for the purposes of establishing permanent residence under Article 16 and yet to allow the very same period to count for the purpose of establishing the ten year residence under Article 29.3.”
It was held that 10 years’ residence had not been established for the purposes of the Directive and 2006 Regulations. I read the above statements as applying in a context where time in prison is required to meet the temporal test. Moreover, the concept of integration was not and did not need to be explored fully in a context where the total period of residence, including time in prison, was only just over 10 years.[52]In Cesar C v Secretary of State [2010] EWCA Civ 1406, Cesar C claimed to have arrived in the United Kingdom in 2002. He had a series of criminal convictions and in 2006 was sentenced to 22 months imprisonment. On 20 September 2007, about 4 weeks before C’s expected release from prison, the Secretary of State notified him that he was to be deported. To establish 5 years residence, Cesar C needed to rely on the time spent in prison. The Secretary of State’s case was that he had not acquired a right of permanent residence as a result of residence for a continuous period of 5 years on the ground that his time in prison did not count and, on that basis, the period of continuous residence fell significantly short of 5 years.[53]Maurice Kay LJ, at paragraph 19 of a judgment with which Longmore LJ and Stanley Burnton LJ agreed, distinguished the case where it was sought to acquire a right from those concerned with possible loss of a right. He stated, approving the approach of the Tribunal:
“. . . the ratio of HR (Portugal) was narrow, being confined to the decision that ‘in respect of the quality of residence, no distinction is to be drawn between the five year and the ten year periods’.”
Maurice Kay LJ considered the approach the Tribunal had taken to imprisonment and stated, at paragraph 23:
“Article 7, lists specific circumstances in which a Union citizen retains the status of ‘worker or self-employed person’, notwithstanding interruption of his availability. They do not include the circumstances of imprisonment.”
[54]Longmore LJ put it in this way:
“46. Mr Drabble submitted that this court should face up to the question whether a short term of imprisonment on the part of an EEA worker during his first five years in the United Kingdom means that the time needed to establish a right permanently to reside has to begin anew after his imprisonment has concluded. This question was, in a sense, left undecided in HR (Portugal) because in that case the appellant had never worked in the United Kingdom and that authority does not therefore conclude the question in favour of the Secretary of State. 47. I agree with Mr Drabble that the question he poses has to be faced at some stage and that this is the case in which to do so. In my view HR (Portugal) does, in reality conclude that question because, once one recognises that the purpose of according to a worker a right permanently to reside in a EU state is that of encouraging the integration of such workers into the population of the host state and that such purpose is not achieved or achievable in prison, it must follow that the worker is not legally resident in the host state as an EEA worker during the period of imprisonment and that any period, which includes that period of imprisonment, cannot be part of the necessary "continuous" period for the purpose of calculating the five years continuous legal residence necessary to acquire the right permanently to reside here.”
It followed that the right of permanent residence, which required such a five year period, had not been established.[55]Both HR and Cesar C were concerned with the acquisition of rights. A period of imprisonment does not count towards the 5 years residence necessary under regulation 21(3) to establish a permanent right of residence. HR decided that periods of imprisonment cannot themselves count towards the establishment of 10 years residence under regulations 21(4). The present case is distinguishable in that there had been a much longer period during which the respondent had been in the United Kingdom, 16 years before his incarceration in 2001.[56]Neither HR nor Cesar C was concerned with whether acquired rights are lost by imprisonment or whether, in a 10 year case where the right of permanent residence has been established, a period of imprisonment during the 10 years preceding the decision to deport is to be viewed in isolation or in the context of substantial pre-imprisonment presence. By virtue of regulation 15(2), the right of permanent residence is lost only by absence from the United Kingdom and not by a period of imprisonment.[57]We were referred to the valuable analysis of issues, including those arising in the present case, by the Tribunal in LG and CC [2009] UKAIT 00024, Carnwath LJ, Senior President, presiding. The case had been remitted to the Tribunal following the Court of Appeal decision cited at paragraph 8 above. The Tribunal summarised the facts in LG, the more relevant of the cases for present purposes, at its paragraph 8. LG had lived in the United Kingdom since at least 1987. In 2001 he was convicted of robbery and grievous bodily harm with intent and sentenced to a term of imprisonment, reduced on appeal to 9 years. While he was serving that sentence, a deportation order was made. He had committed previous offences. A Tribunal had found that imperative grounds of public safety for removing LG had been established but the Court of Appeal remitted the question whether, if the 10 year test applied, the decision to remove could properly be said to be on imperative grounds of public security. The question whether the Tribunal had been right to conclude that the level of protection based on 10 years residence applied at all had been left open by the Court of Appeal.[58]The Tribunal posed for itself these questions, the third and fourth of which I will defer for later consideration:
“(a) What constitutes residence for the purposes of regulation 15(1)(a) – right of permanent residence after five years' "legal" residence in the United Kingdom? (b) What constitutes residence for the purposes of regulation 21(4) – protection from expulsion where there is ten years' residence? (c) What is the correct meaning and application of the test of serious grounds of public policy and public security under regulation 21(3)? (d) What is the correct meaning and application of the test of imperative grounds of public security under regulation 21(4)(a)? The word "legal" in question (a) is taken from Article 16. We will need to discuss further below (paragraphs 46ff) the precise content of that term.”
[59]The Tribunal continued:
“27. Questions (a) and (b) both have what might be described as a qualitative and a temporal aspect. The qualitative aspect relates to the nature of the residence needed to be shown. In particular, the question arises as to whether time spent in prison in the United Kingdom following conviction for an offence can count towards the five year and ten year periods. 28. The temporal aspect raises two issues: first, in relation to the right of residence, the question of commencement, and secondly, in relation to the 10-year period, the end-date. The first relates to whether and to what extent regard is to be had to any period before 30 April 2006, when the Regulations came into force, or to any period before 2 October 2000, when the Immigration (European Economic Area) Regulations 2000 came into force. . .”
[60]The Tribunal considered the decision of this Court in Secretary of State v Lassal [2009] EWCA Civ 157 and stated:
“Consistently with that judgment, regard could be had to periods before the coming into force of the 2000 Regulations.”
The Tribunal cited the judgment of Arden LJ in Lassal, at paragraph 3:
“The object of the Citizenship Directive is to facilitate the integration into the host member state of workers and others having strong links through residence with it. To achieve that aim, it is necessary to interpret article 16 so that the right of permanent residence can be acquired on the implementation date in reliance on residence before that date.”
[61]The Tribunal also considered HR (Portugal) v SSHD [2009] EWCA Civ 371, cited above and stated, at paragraph 42:
“Thus the ratio of the decision is that, in respect of the quality of residence, no distinction is to be drawn between the five year and ten year periods, notwithstanding the absence from the latter of an express reference to the need for it to be ‘legal’.”
The Tribunal added, at paragraph 44:
“HR must be read as to some extent turning on its own facts.”
[62]The Tribunal considered question (a) which it had posed for itself and cited the decision of this Court in McCarthy v SSHD [2008] EWCA Civ 641 where Pill LJ stated, at paragraph 31:
“The expression ‘resided legally’ in article 16 should, in my view, be read consistently with, and in the sense, of preamble 17 of the Directive, that is residence ‘in compliance with the conditions laid down in this Directive’.”
Specific reference was made by the Tribunal, at paragraph 53, to article 16.4 of the Directive, transposed by regulation 15(2), that “once acquired, the right of permanent residence shall be lost, only through absence from the host Member State for a period exceeding 2 consecutive years”.[63]Having also considered European jurisprudence, the Tribunal stated, at paragraph 69:
“For these reasons, we conclude that there is nothing in this line of cases which would justify us departing from the principle which was conceded and formed the starting-point for the decision in HR (Portugal). We proceed on the basis therefore that time in prison does not count towards the five year period of residence required for acquisition of a permanent right.”
[64]When considering its question (b), the Tribunal again referred, at paragraph 74, to HR and found it to be established that:
“At least in relation to a person who has not worked in this country and who has not acquired a right to permanent residence, time spent in prison does not count towards the ten year period required.”
The Tribunal found it less easy to apply the reasoning in HR to a case where a person has acquired a right of permanent residence. The Tribunal referred to anomalies which arise whichever test is applied but stated, at paragraph 76:
“Time in prison does not count towards the acquisition of the higher level of protection, even for someone who has a right of permanent residence.”
[65]Consideration was then given to the end date for the 10 year period and reference was made to the expression in article 28.3(a) “the previous 10 years”, transposed to regulation 21(4)(a) as meaning residence “for a continuous period of at least 10 years prior to the relevant decision”. Reference is again made to anomalies arising whichever test is applied though it is clear, stated the Tribunal at paragraph 78, that:
“The period of residence that gives rise to the test of imperative grounds runs backwards in time from the date of the expulsion decision. This temporal requirement does not apply to the five year test.”
[66]The Tribunal stated, at paragraph 80, that the end date requirement may have harsh results:
“The consequence of not treating time in prison as residence for the purposes of Article 28.3, even for those who have a right of permanent residence, may mean that its practical value is much reduced.”
These harsh results may be mitigated, the Tribunal stated at paragraph 81, if the temporal rules are seen in a context in which “once a permanent right of residence has been acquired it is not lost as a result of imprisonment” so that expulsion must be justified by “serious grounds” of public security or public policy. Proportionality also has to be considered: “Where a person has become fully integrated into this country by more than 10 years residence, particularly if he has severed any links with his country of origin, it would be consistent with the purpose of the Directive (as stated in the Preamble) to apply a stringent test, which may be equivalent in practice to the ‘imperative grounds’ test” (paragraph 82). That approach to a degree anticipates the approach of the CJEU to article 28(3) in Tsakouridis.[67]Reference was made at paragraph 83 to the requirement in article 33 that:
“if an expulsion order is to be enforced more than two years after it is issued, the Member State must check that the individual is ‘currently and genuinely a threat to public policy or public security’ and must assess ‘whether there has been a material change in the circumstances since the expulsion order was issued’.”
A Tribunal in the present case would be required to apply that provision, transposed in regulation 24(5), if it were now to consider an appeal against a deportation order.[68]Acknowledging the injustice of attempting to defeat an established right by delay, the Tribunal stated, at paragraph 83, that the Secretary of State should make the decision to deport “as close as possible to the beginning of any custodial term for the offence”. The practice followed by the Secretary of State appears to be not to make a deportation order until late in a prison sentence. There is an obvious injustice in delaying the order with the effect, if the Secretary of State’s view is correct, of defeating an integration otherwise achieved.[69]Applying the stated principles to the facts in LG, the Tribunal concluded:
“87. . . . LG had acquired what the Regulations require us to recognise as a right of permanent residence before he was imprisoned. We find further that he had been resident here for more than ten years before his first imprisonment. 88. Although, during his term of imprisonment, LG did not enjoy, and was not exercising, any of what can be called the conditional rights of residence, he did not lose his right of permanent residence. However, for the reasons we have given, his time in prison did not count for the purpose of establishing ten years' residence prior to the expulsion decision. Accordingly he was not entitled as of right to the highest level of protection, represented by the "imperative grounds" test. For that reason we do not agree with the conclusion of the second Tribunal on this issue. 89. However, he retained his right to the second level of protection, which required "serious grounds of public policy or security". Further, the decision to remove had to be proportionate, having regard to the extent of his ties with this country and his lack of ties with Italy.”
Mr Beal relied on the statement in paragraph 88 that “time in prison did not count for the purpose of establishing ten years’ residence prior to the expulsion decision”, though the statement is mitigated by the Tribunal’s approach to proportionality.[70]In Jarusevicius (EEA Reg 21 – effect of imprisonment) [2012] UKUT 00120(IAC) (“J”), the Upper Tribunal (Immigration & Asylum Chamber), Blake J President, presiding, considered the effect of more recent decisions, including Tsakouridis. (PI post-dated the Tribunal decision). J claimed to have entered the United Kingdom in September 2004. In July 2010, he was sentenced to 42 months imprisonment for conspiracy to handle stolen goods. He had previously committed an offence of driving a motor vehicle with excess alcohol. There was no evidence of residence in accordance with the Regulations for a continuous period of 5 years. It was held that J had not acquired the right of permanent residence. The Tribunal concluded that, if he had: “Whilst we could not envisage this class of conduct giving rise to imperative grounds of public policy, we conclude that the Tribunal was in the alternative entitled to conclude in this case that it amounted to serious grounds.” (paragraph 67).[71]The Upper Tribunal concluded that the time spent in detention in J was necessary if the 5 year period for acquisition of a right of permanent residence was to be established and did not count towards such accrual. Without it, 5 years continuous residence had not been acquired. The Upper Tribunal also stated:
“58. We conclude that the decision in Tsakouridis neither requires nor entitles us to reach a contrary result. That case was one where the right to permanent residence had been acquired long before the claimant spent time in prison. The right was not lost by his short absence abroad and nor was it lost by his remand in custody and subsequent sentence on return. We note that in the calculation of the ten years residence, EU law requires the decision maker to count back from the date of the decision to deport, whilst the acquisition of permanent residence means counting forward from the date that it is first established by economic activity or other means under Article 7 of the Directive. 59. In our judgment all the cases cited draw a distinction between acquisition of the right to reside permanently and the loss of that right. The learning from the Court of Justice suggests that:- i) once a right of permanent residence has accrued it is not lost by a remand in custody or a short sentence or a sequence of them (Nazli, Dogan); ii) prison is not to be equated to voluntary unemployment that may lead to loss of worker status and the loss of continuity of lawful residence for the purpose of acquiring the right of permanent residence (Orfanopoulos and Oliveri); iii) the continuity of residence for the purpose of regulation 21(4)(a) (ten years residence) is not broken by a period of imprisonment (Tsakouridis). 60. This may mean that the conclusions of the decisions of the AIT in LG and CC (Italy) and the UTIAC in SO that in addition to not counting towards the five year period, prison also broke the continuity of residence for that period may have to be re-examined. It is one thing to conclude that a period spent serving a sentence of imprisonment is not lawful residence for the purpose of acquiring an EU right of residence, it is another to conclude that lawful residence prior to such a sentence could not be aggregated with lawful residence after service of it. It is difficult to see why if such a period of imprisonment does not break “continuous” residence for the purpose of regulation 21(4)(a), it should do so for the purpose of regulation 15(1)(a). Equally it is difficult to reconcile the conclusion of the AIT in LG and CC that service of a sentence of imprisonment in the 10 years before the decision to deport prevents the greater protection of “imperative grounds” arising, with the conclusion of the CJEU in Tsakouridis reached on the basis that it could. In a case where this issue is central to the outcome, it may be necessary to consider whether the UT is able to reach its own conclusion on the matter, or should make a reference to the CJEU or is bound by a CA decision pending any reference that is made by that court.”
I respectfully agree with the Tribunal’s statement at paragraph 59(iii) and also with the need to reconsider the effect of a period of imprisonment in the 10 years before the decision to deport, in the light of Tsakouridis and now PI. i) once a right of permanent residence has accrued it is not lost by a remand in custody or a short sentence or a sequence of them (Nazli, Dogan); ii) prison is not to be equated to voluntary unemployment that may lead to loss of worker status and the loss of continuity of lawful residence for the purpose of acquiring the right of permanent residence (Orfanopoulos and Oliveri); iii) the continuity of residence for the purpose of regulation 21(4)(a) (ten years residence) is not broken by a period of imprisonment (Tsakouridis).[72]A further line of attack by Mr Beal was based on the decision of the CJEU in Secretary of State for Work & Pensions v Dias (Case C-325/09). Much emphasis was placed on it by Mr Beal in his reply to support his submission that any right acquired by an EU citizen is terminated by 2 years in prison. A gap of 2 years during which no underlying right is being exercised brings to an end acquired rights, it was submitted. It cannot be equated with lawful residence. Any acquired right is terminated by 2 years in prison.[73]Dias was concerned with the status of a residence permit issued by a Member State for the purposes of acquiring a right of permanent residence under article 16. Dias first confirmed at paragraph 43, that:
“In that regard, it should be noted that the Court has already held that periods of continuous residence of five years, completed before the date of transposition of Directive 2004/38, in accordance with earlier European Union law instruments, must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1) thereof (Lassal, paragraphs 40 and 59).”
[74]The principle in the case is stated at paragraph 55:
“Consequently, it must be held that periods of residence completed before 30 April 2006 on the basis solely of a residence permit validly issued under Directive 68/360, without the conditions governing entitlement to any right of residence having been met, cannot be regarded as having been completed legally for the purposes of the acquisition of a right of permanent residence under Article 16(1) of Directive 2004/38.”
The principle covered the status and effect of a residence permit. The actual ruling of the Third Chamber confirms the narrow basis of the decision:
“Periods of residence, completed before 30 April 2006 on the basis solely of a residence permit validly issued pursuant to Council Directive 68/360/EEC of 15 October 1968 . . . without the conditions governing entitlement to any right of residence having been satisfied, cannot be regarded as having been completed legally for the purposes of the acquisition of the right of permanent residence under article 16(1) of [the Directive].”
[75]It was also ruled that periods of residence of less than 2 consecutive years completed on the basis solely of a residence permit which occurred before 30 April 2006 but after a continuous period of 5 years legal residence completed prior to that date, are not such as to affect the acquisition of the right of permanent residence under article 16(1). Mr Beal submitted that it followed from the finding that less than two consecutive years did not defeat, more than two consecutive years did defeat. He also relied on the Court’s reference to article 16(4) of the Directive by which the right of permanent residence is lost, and lost only, through two years absence, and its possible application by analogy.[76]The Court referred to the article at paragraph 65:
“As the situations are comparable, it follows that the rule laid down in Article 16(4) of Directive 2004/38 must also be applied by analogy to periods in the host Member State completed on the basis solely of a residence permit validly issued under Directive 68/360, without the conditions governing entitlement to a right of residence of any kind having been satisfied, which occurred before 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date.”
By analogy, 2 years in prison during the 10 years preceding the order challenged defeats existing rights, it was submitted.[77]I do not consider that the analogy can be drawn. Dias was concerned with residence permits issued nationally and was not concerned with the effect of imprisonment. Reference in Dias to article 16(4) (regulation 15(2)) and to a period of less than 2 years completed solely on the basis of a residence permit does not establish a wider principle and in my view certainly not a principle that 2 years imprisonment defeats established rights.[78]Dias was concerned with periods of residence completed before 30 April 2006 on the basis solely of a residence permit validly issued pursuant to Directive 68/360/EEC of 15 October 1968. Such residence cannot be regarded as having been completed legally for the purposes of the acquisition of the right of permanent residence under article 16(1) of the Directive. It was confirmed that the grant of a residence permit does not give rise to treaty rights (paragraph 48). As was confirmed in Ziolkowski (C-424/10) at paragraph 51:
“. . . Article 16(1) of Directive 2004/38 must be interpreted as meaning that a Union citizen who has been resident for more than five years in the territory of the host Member State on the sole basis of the national law of that Member State cannot be regarded as having acquired the right of permanent residence under that provision if, during that period of residence, he did not satisfy the conditions laid down in Article 7(1) of the directive.”
[79]The Advocate General’s opinion, at paragraph 107, had referred to the 2 year period of absence specified in article 16(4) of the Directive. The Court stated, at paragraphs 64, 65 and 66:
“64. In that regard, it should be noted, as the Advocate General has stated in points 106 and 107 of her Opinion, that the integration objective which lies behind the acquisition of the right of permanent residence laid down in Article 16(1) of Directive 2004/38 is based not only on territorial and time factors but also on qualitative elements, relating to the level of integration in the host Member State. 65. As the situations are comparable, it follows that the rule laid down in Article 16(4) of Directive 2004/38 must also be applied by analogy to periods in the host Member State completed on the basis solely of a residence permit validly issued under Directive 68/360, without the conditions governing entitlement to a right of residence of any kind having been satisfied, which occurred before 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date. 66. It follows that periods of less than two consecutive years, completed on the basis solely of a residence permit validly issued pursuant to Directive 68/360, without the conditions governing entitlement to any right of residence having been satisfied, which occurred before 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date, are not such as to affect the acquisition of the right of permanent residence under Article 16(1) of Directive 2004/38.”
[80]To draw from that finding a conclusion that established rights are defeated by 2 years imprisonment is in my view impermissible. The analogy is also inconsistent with the principle stated in recitals 23 and 24 of the Directive, affirmed in Tsakouridis and PI. The 2 year period in article 16(4) may have some value as a marker but, in my judgment, to transpose it into a rule that a 2 year gap caused by imprisonment necessarily defeats established rights cannot be justified. In relation to the right of permanent residence, it runs quite contrary to the wording of article 16(4), which provides that the right is lost only by two years absence. In relation to 10 year rights, it is inconsistent with the approach directed in Tsakouridis.[81]In Tsakouridis, article 16(4) was mentioned at paragraph 30 but only by repeating the referring court’s mention of the possibility of analogy. The submission is, in my judgment, inconsistent with the Court’s reasoning and ruling in Tsakouridis and in PI. In PI, there had been 2 years custody immediately before the administrative decision to deport was taken and nothing was made of that.[82]In Tsakouridis, at paragraph 43, the Grand Chamber applied the concept of the “degree of integration into the host Member State” and highlighted the relevance of length of residence. Length of residence creates a presumption of integration. The respondent relies on 16 years presence in the United Kingdom before imprisonment as demonstrating a high degree of integration. There must be an overall qualitative assessment. Part of the time having been spent in prison was a factor but only a factor. It would become a lottery if a period in prison during the 10 year period before the deportation order excluded other factors from consideration. The question is whether the Union citizen is still integrated.[83]In my judgment, some domestic authority does need reconsideration in the light of Tsakouridis and PI. There is no doubt that to establish a permanent right of residence under regulation 21(3)(a), residence must be in accordance with the Regulations. Once permanent residence has been established, the test to be applied under regulation 21(4), read with regulation 21(5) and (6), is the integration test stated in recitals 23 and 24 as explained in Tsakouridis. For reasons given, I do not consider that either HR (Portugal) or Cesar C requires this court to reach a different conclusion on the present facts.[84]A qualitative assessment must be made and integration is not necessarily defeated by time spent, whether in prison or out of the country, during which residence in accordance with the Regulations is not being exercised. That follows, in my judgment, from the integration test and from the absence of findings in those cases that periods of imprisonment, or periods of absence, during the 10 years preceding the deportation order, necessarily defeat ten year rights under the Directive. Rights of residence will, however, be defeated, under regulation 15(2) by absence from the host Member State for a period exceeding two consecutive years. It may be that ten year rights go with them.[85]The question whether the requirement of a continuous period of 10 years residence is established at the date of the decision to deport, turns on the degree of integration established at that time. This is a question of fact for the Tribunal. Following the test in Tsakouridis, periods of absence within the 10 years immediately preceding the decision do not of themselves disqualify and neither does a period of imprisonment. The period of imprisonment is, however, relevant as a factor to be considered when deciding upon integration at the date of decision. Integration will not normally be established by time spent in prison save that it may have limited relevance by contributing to the severance of links with the country of origin. If integration has been established prior to the custodial term, it will not necessarily be lost by that term.[86]The factors to be considered are set out by the Grand Chamber in the two cases cited. In PI, two years and four months in prison before the decision was made did not of itself defeat integration. The decision turns on an overall qualitative assessment having regard to all relevant factors, including the length of residence, family connections and any interruptions in integration. The respondent’s children are in the United Kingdom. Severance of links with the state of origin is also a factor. Moreover, it follows from the Tribunal’s approach in LG, with which on this point I respectfully agree, that a state should not be allowed to defeat a claim by deferring the deportation order until the period of imprisonment has been served.

Imperative grounds of public security

[87]It is common ground that the words “imperative grounds of public security” in regulation 21(4) must be considered in the context of, and along with, the ten year issue already considered. Since the two Tribunal decisions, the meaning of the expression has been subject to much consideration. At paragraph 26, I have cited the view of Carnwath LJ that, on the facts in LG, deportation could not be justified on imperative grounds of public security. A similar conclusion was reached by the Tribunal on the facts in J (paragraph 70 above). As has been mentioned earlier in this judgment, the question was also considered in Tsakouridis and PI.[88]The test to be applied was stated by the Grand Chamber in Tsakouridis:
“48. It should be added that Article 27(2) of Directive 2004/38 emphasises that the conduct of the person concerned must represent a genuine and present threat to a fundamental interest of society or of the Member State concerned, that previous criminal convictions cannot in themselves constitute grounds for taking public policy or public security measures, and that justifications that are isolated from the particulars of the case or that rely on considerations of general prevention cannot be accepted. 49. Consequently, an expulsion measure must be based on an individual examination of the specific case (see, inter alia, Metock and Others, paragraph 74), and can be justified on imperative grounds of public security within the meaning of Article 28(3) of Directive 2004/38 only if, having regard to the exceptional seriousness of the threat, such a measure is necessary for the protection of the interests it aims to secure, provided that that objective cannot be attained by less strict means, having regard to the length of residence of the Union citizen in the host Member State and in particular to the serious negative consequences such a measure may have for Union citizens who have become genuinely integrated into the host Member State. 50. In the application of Directive 2004/38, a balance must be struck more particularly between the exceptional nature of the threat to public security as a result of the personal conduct of the person concerned, assessed if necessary at the time when the expulsion decision is to be made (see, inter alia, Joined Cases C-482/01 and C-493/01 Orfanopoulos and Oliveri [2004] ECR I-5257, paragraphs 77 to 79), by reference in particular to the possible penalties and the sentences imposed, the degree of involvement in the criminal activity, and, if appropriate, the risk of reoffending (see, to that effect, inter alia, Case 30/77 Bouchereau [1977] ECR 1999, paragraph 29), on the one hand, and, on the other hand, the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated, which, as the Advocate General observes in point 95 of his Opinion, is not only in his interest but also in that of the European Union in general.”
[89]In PI, it was recognised that the concept of “imperative grounds of public security” presupposes “not only the existence of a threat to public security, but also that such a threat is of a particularly high degree of seriousness, as is reflected by the use of the words “imperative grounds” (paragraph 20). It was also noted that Union law does not impose on Member States a uniform scale of values as regards the assessment of conduct which may be considered to be contrary to public security (paragraph 21). However, the court added, at paragraph 23:
“While Member States essentially retain the freedom to determine the requirements of public policy and public security in accordance with their national needs, which can vary from one Member State to another and from one era to another, particularly as justification for a derogation from the fundamental principle of free movement of persons, those requirements must nevertheless be interpreted strictly, so that their scope cannot be determined unilaterally by each Member State without any control by the institutions of the European Union (see, inter alia, Case C-33/07 Jipa [2008] ECR I-5157, paragraph 23, and Case C-434/10 Aladzhov [2011] ECR I- 0000, paragraph 34).”
[90]At paragraph 28, the Court related the expression under consideration to article 83(1) of the Treaty:
“It is apparent from the above that it is open to the Member States to regard criminal offences such as those referred to in the second subparagraph of Article 83(1) TFEU [Treaty on the Functioning of the European Union] as constituting a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population and thus be covered by the concept of 'imperative grounds of public security', capable of justifying an expulsion measure under Article 28(3) of Directive 2004/38, as long as the manner in which such offences were committed discloses particularly serious characteristics, which is a matter for the referring court to determine on the basis of an individual examination of the specific case before it.”
[91]On behalf of the Secretary of State, Mr Beal submitted that the respondent was at risk of re-offending which, if it occurred, would be likely to jeopardize public security through putting members of the public at risk of serious harm or death. The expression “imperative grounds of public security” includes very serious crimes that pose a particularly serious risk to the safety of the public and, given the margin of discretion accorded to Member States, the 2007 Tribunal was entitled to find that the conduct of the respondent came within that category. The analysis by the 2008 Tribunal of the reports on the respondent was unsatisfactory, it was submitted.[92]For the respondent, it is submitted that, though plainly a serious offence, the killing which occurred in domestic circumstances, taken with the other offending, cannot possibly satisfy the imperative grounds test. Almost inevitably when a Union citizen seeks to rely on the protection of regulation 16(4), a sentence of imprisonment will have been imposed.[93]A similar issue on classification of offences arose in EN (Serbia) v Secretary of State [2010] QB 633. Article 33(2) of the Convention relating to the Status of Refugees provides that a refugee who, having been convicted of a particularly serious crime, constitutes a danger to the community, could not claim the benefit of article 33(1), which prevents the state from returning a refugee to a territory where his life or freedom would be threatened for a Convention reason. Section 72 of the Nationality, Immigration & Asylum Act 2002 empowered the Home Secretary to specify offences which would be presumed to have been convictions for a “particularly serious crime” within the meaning of the statute and the Convention. This Court quashed the Nationality, Immigration & Asylum Act 2002 (Specification of Particularly Serious Crimes) Order 2004 on the ground that it had listed a number of criminal offences which could not lawfully be said to fulfil the requirements of article 33(2) as being “particularly serious” crimes.[94]The case illustrates judicial awareness of the care required in classifying what is “a particularly serious crime”. Analysis was required just as it is, in my judgment, in assessing what are “imperative grounds of public security”. The need to interpret derogations from the Directive “strictly” was also stated at paragraph 23 of PI, cited at paragraph 89 above.

Conclusions

[95]In my judgment, the 2007 Tribunal plainly erred in law in its approach to the expression “imperative grounds of public security”. Their conclusion at paragraph 44, cited at paragraph 19 above, cannot be justified and the 2008 Tribunal was correct to find an error of law.[96]The reasoning of the 2008 Tribunal on this issue was more measured and detailed, and the Tribunal made the finding of fact stated at paragraph 27 above. To succeed, the Secretary of State needs to establish an error of law by the 2008 Tribunal.[97]First, I do not consider that the Secretary of State is now entitled to challenge the respondent’s claim to ten years residence under regulation 21(4)(a). Given a permanent right of resident under regulation 21(3), such a challenge would in any event have no real prospect of success, in my view, on the facts in this case. I have considered the test to be applied (paragraphs 80 to 86 above) under the Directive and decisions of the CJEU. The respondent has been in this country for 27 years, 14 years of which as husband of a UK citizen, and he has children here. He has not been responsible for the delays in decision making since his incarceration in 2002.[98]Secondly, I see no real prospect of the Tribunal finding ‘imperative grounds of public security’ to justify deportation. The respondent has committed a serious offence of violence against the person justifying a sentence of 8 years imprisonment. He has committed other offences.[99]Notwithstanding those offences and the discretion permitted to a Member State in setting out its scale of values, a Tribunal applying regulation 21 and the guidance in Tsakouridis and PI could not in my judgment properly find that there are imperative grounds of public security justifying deportation. (I bear in mind the later offences of the respondent mentioned at paragraph 30 above.) The Tribunal decisions in LG and J are not inconsistent on this point with the CJEU guidance and neither is the 2008 Tribunal decision. Moreover, the decision maker would be required to take into consideration the principles stated in regulation 21(5) and (6), which in the present case would operate heavily in the respondent’s favour.[100]Even if criticisms can be made of the 2008 Tribunal’s analysis of the reports on the respondent, no Tribunal in 2012 could properly come to a different conclusion on the ‘imperative grounds’ issue. I also find applicable the approach adopted in RT and KM (Zimbabwe) [2012] UKSC 38, at paragraph 67, where it was stated, on the facts of that case, that it ‘would not be just to submit him to a third tribunal hearing’.[101]I would dismiss the appeal. Since I drafted this judgment, the court’s attention has been drawn to questions referred by the Upper Tribunal to the CJEU in this area of the law. They arise out of the cases of MG (EU deportation – Article 28(3) – imprisonment) Portugal [2012] UKUT 00268 (IAC) and Onuekwere (imprisonment – residence) [2012] UKUT 00269 (IAC). Neither party seeks to make further submissions to the court in this case. On behalf of the respondent, it is suggested that a reference would be appropriate if the court took a view of regulation 21(4)(a) adverse to the respondent. That has not arisen. On the court’s findings and conclusions on the facts of the case, a reference is not in my view necessary or appropriate.

Lord Justice Aikens :

[102]Pill LJ has set out the relevant facts, the provisions of the Directive and the 2006 Regulations and the substance of the decisions of the 2007 and 2008 Tribunals, which I therefore need not repeat. I will use the same abbreviations that he has used, save that I will refer to the respondent as FV.[103]There are potentially four main issues that arise on this appeal concerning the basis (if any) on which the SSHD is entitled to deport FV pursuant to the 2006 Regulations. First, should the SSHD be permitted to take the point, which was not taken before either the 2007 or 2008 Tribunals, that FV does not have and has never had a permanent right of residence (“PRR”) in the UK, within the terms of Regulation 15(1). On that issue I agree entirely with the reasoning and conclusion of Pill LJ and I need add nothing more on it. In short, it is far too late for the SSHD to be permitted to take the point and it would be unjust to FV to allow her to do so now. Like Pill LJ, I have concluded that we must approach this case on the basis that FV had a subsisting PRR in the UK at the time of the SSHD’s decision to deport in March 2007 and indeed before he was sentenced in 2002.[104]If the answer to issue (1) is “no”, then the second issue is: does the SSHD have to make her decision on whether or not to deport FV on the criteria set out in Regulation 21(4)(a), or can she do so on the criteria set out in Regulation 21(3). That depends in the first place on whether, (as was assumed before the two Tribunals), FV had “resided in the United Kingdom for a continuous period of at least ten years prior to” the decision to deport him taken by the SSHD on 23 March 2007, within the meaning of Regulation 21(4)(a) as it has to be interpreted according to the UK and European case law. Mr Armstrong, on behalf of FV, accepted that the issue of whether FV could claim what has been called “the enhanced protection” of Regulation 21(4)(a) depended upon the correct interpretation of the 2006 Regulations and that this was a point of law that was open to the SSHD. However, on the subsidiary question of whether this point could finally be determined by this court or whether the matter had to be remitted to the Upper Tribunal (“UT”) for further factual matters to be decided, Mr Armstrong submitted that we can and should decide this issue finally in FV’s favour.[105]If the answer to issue (2) is that the SSHD has to make her decision on the basis of Regulation 21(4)(a) because FV has resided in the UK for a continuous period of ten years prior to the SSHD’s decision to deport in March 2007, then the third issue is whether the 2008 Tribunal erred in law in concluding (contrary to the decision of the 2007 Tribunal) that FV’s circumstances do not fall within the phrase “imperative grounds of public security” within the meaning of Regulation 21(4)(a) as interpreted by UK and European case law. Again there is a subsidiary question as to whether this issue can be finally decided by this court or whether the issue must be remitted for final determination by the UT. Mr Armstrong submitted that, on this issue also, this court can and should decide the matter in FV’s favour.[106]Lastly, if, as Mr Beal QC, counsel for the SSHD contends, the issue of whether FV is to be deported has to be determined on the criteria of “serious grounds of public policy” in accordance with Regulation 21(3), then we must decide whether this issue should be remitted to the UT for its determination of further facts and application of the law as set out by this court to those facts. As Pill LJ has pointed out, if the matter is returned to the UT, then it would in any event also have to determine issues under Regulation 21(5) and (6). Residence by FV in the UK for a continuous period of ten years prior to the SSHD’s decision to deport on 23 March 2007?[107]The key question of law is whether the fact that FV spent 4 years and 2 months in prison in the UK between the start of his sentence of imprisonment on 2 May 2002 and his release on 3 July 2006 means that FV could not maintain, at the time of the SSHD’s decision to deport him on 23 March 2007, that he had resided in the UK for a continuous period of ten years immediately prior to that decision. (As I understand Mr Beal’s submissions, he does not rely on the subsequent period of wrongful detention). The issue depends on the correct interpretation of Regulation 21(4)(a), which is based on the wording of Article 28(3)(a) of the Directive. The wording of the Regulation has been the subject of English authority and the wording of the Directive has been the subject of decisions by what was the European Court of Justice (“ECJ”), which, since the Lisbon Treaty, is now called the Court of Justice of the European Union (“CJEU”). For convenience I will refer to the CJEU even when the decision being considered was one of the ECJ as it was then called.[108]The important UK authorities are, in chronological order of decision, HR (Portugal) v SSHD [2010] 1 WLR 158; LG & CC v SSHD [2009] UKAIT 00024; Cesar C v SSHD, O Abdullah O v SSHD [2010] EWCA Civ 1406 (in the case of Cesar C, on appeal from [2009] UKAIT 00024); and Nerijus Jarusevicius v SSHD [2012] UKUT 00120 (IAC). The key CJEU authority on this issue is Tsakouridis Case C-145/09, [2010] ECR 1-0000. PI v Oberburgermeisterin der Stadt Remscheid (Freedom of Movement of Persons) Case C-348/09, handed down on 12 May 2012, does not deal specifically with this point, but only with what can be encompassed by the phrase “imperative grounds of public security” in Article 28(3). Pill LJ has analysed all of these cases and also others. I do not need to repeat the facts of the cases or the relevant extracts of the judgments. However, I wish to state my own analysis of the effect of these decisions.[109]In HR (Portugal), which I shall refer to as HR, Stanley Burnton LJ gave the first judgment. He said at [5], that the sole issue before the court was whether HR had been resident in the UK for a period of 10 years for the purposes of Regulation 21(4)(a). The effect of Stanley Burnton LJ’s analysis of the Directive and the cases, as summarised in [23] to [26] of his judgment is that the concept of “residence”, for the purposes of Regulation 21(4) means presence in the UK in the exercise of the rights and freedoms conferred by the EC Treaty. As Elias LJ noted, at [31], it had been conceded by counsel for HR that time spent in prison could not count in deciding whether he had resided legally for a continuous period of five years to establish a PRR in the UK. On that basis, Stanley Burnton LJ concluded, at [23], that an EEA national who, having been convicted of a crime, was detained for a significant period in prison would not be “resident” in the UK for the purposes of either Article 28(3) of the Directive or Regulation 21(4)(a). Thus HR could also not establish the necessary 10 years residence for the purpose of Regulation 21(4)(a).[110]Elias LJ noted that counsel for HR accepted that there was a finding of the AIT that HR had never obtained a PRR: [31]. Elias LJ also accepted the proposition that, for the purposes of Article 28(3) and Regulation 21(4)(a) there had to be “legal” residence, ie. for a purpose laid down by the Directive/Regulations: [35]. In his view it followed that if a period in prison could not count towards establishing PRR, it could not count for the purpose of establishing the “ten year residence” under Article 28(3) of the Directive: [36]. Sedley LJ agreed that, as HR had never worked in the UK, he could not establish that he had a PRR, let alone that he had been continuously resident in the UK for ten years. He suggested that the interpretation adopted could lead to odd results in certain circumstances: [41].[111]It is important to note two things about this decision. First, it would appear that, on the facts of that case, HR needed to count the time spent in prison in order to achieve five years “residence” towards a PRR as well as towards the 10 years period and it was conceded on behalf of HR that he could not challenge the finding of the AIT that he had failed to establish a PRR, given his time in prison. Secondly, the case does not focus particularly on the fact that in Regulation 21(4)(a) (and Article 28(3) of the Directive) the issue is whether the EEA national has been resident in the member state for at least 10 years continuously prior to the relevant decision to deport.[112]In LG & CC before the AIT, the case of LG had already been to the Court of Appeal, which had held that the tribunal had erred in law in its approach to what constituted “imperative grounds of public security” for the purposes of Regulation 21(4)(a). The SSHD had raised before the Court of Appeal, for the first time, the question of whether LG was properly to be dealt with on the basis of Regulation 21(4)(a) as opposed to Regulation 21(3). That issue had been remitted to the AIT. The decision in HR was handed down after the AIT’s hearing in LG & CC but before judgment. The AIT analysed the HR decision when considering the particular issues before it.[113]The judgment of the AIT was given by Carnwath LJ, then Senior President of Tribunals, who had also sat in the division of the Court of Appeal that had remitted LG’s case to the AIT. Having analysed HR Carnwath LJ concluded, at [44], that it was a case that must be read as “to some extent turning on its own facts and the submissions made”. He also noted that the Court of Appeal in HR had not been referred to a line of European case-law which he said was potentially relevant, at least to a person who had qualified as a worker before being imprisoned.[114]On the question of what constituted “residence” for the purposes of Regulation 21(4)(a), Carnwath LJ drew a distinction between a person who had never obtained a PRR and one who had. He concluded however, at [76], that although the facts in LG & CC were different from those of HR, the differences were insufficient to justify a different approach. Therefore, he concluded that time in prison did not count towards the acquisition of the “higher level of protection, even for someone who [had] a right of permanent residence”. Carnwath LJ also noted that the ten year period “ran back” from the date of the decision to deport: [78]. He added that the potential harshness of the rule he propounded was mitigated by(a) the fact that a PRR, once obtained, could not be lost (save by 2 years continuous absence), so a certain degree of protection was usually retained;(b) in any event a decision to deport had to be proportionate and in appropriate cases this might be equivalent to the higher test under Regulation 21(4)(a); and(c) if an expulsion took place more than two years after originally ordered, the Member State must check that the individual was currently a genuine threat to public policy or public security: [81]-[83].[115]On the facts of LG’s case, the AIT held that he had retained his PRR, but his period in prison could not count towards the necessary ten years continuous residence prior to the decision to deport, so that LG was to be dealt with under Regulation 21(3), not 21(4)(a). I will consider the case of CC, or Cesar C as it became known, below, as the case then went to the Court of Appeal for a second time.[116]The issue in Cesar C in the Court of Appeal was the extent to which time spent in prison may count towards the qualifying period for establishing a PRR under Regulation 15(1)(a). Maurice Kay LJ gave the leading judgment. Having analysed HR, he concluded, at [14] (and in agreement with the AIT) that the ratio of HR was narrow, “…being confined to the decision that ‘in respect of the quality of residence, no distinction is to be drawn between the five year and the ten year periods’”. Maurice Kay LJ then considered a number of European authorities, in particular Nazli, Dogan and Orfanopoulos. He concluded that those decisions supported the proposition that there was a distinction between cases where a person needed to rely on a period in prison to establish residence for a certain time in order to qualify for a particular benefit of residence and cases where that period had been established and then he was in prison: see in particular [19] and [23] of Maurice Kay LJ’s judgment.[117]Longmore LJ held that HR did, “in reality”, conclude the question of whether time spent in prison on the part of an EEA worker during his first five years in the UK meant that the time needed to establish a PRR had to start again after the period of imprisonment was concluded. The answer in HR was that it did have to do so. Longmore LJ said that the rationale for this conclusion was that the continuous period of 5 years “legal” residence was for the purpose of encouraging integration and that purpose was neither achieved nor achievable in prison: [46]-[47]. Stanley Burnton LJ agreed with both judgments.[118]Ultimately, it seems to me (with respect) that this court’s judgment in Cesar C does not extend the analysis in HR or that of the AIT in LG & CC. It is clear from the judgment of Maurice Kay LJ that it regarded HR as confined to its peculiar factual situation. Cesar C does not deal with the issue that is before us.[119]The last of the UK authorities is Jarusevicius. However, as that case was decided after the central CJEU decision of Tsakouridis, it seems more sensible to examine the latter case first. Tsakouridis concerned a person who had obtained an unlimited residence permit in Germany, then had gone to Greece for two periods, one of 6 months in 2004 and one of 18 months in 2005-2007. Mr Tsakouridis was then returned to Germany on an international arrest warrant and was convicted of illegally dealing in narcotics as part of an organised group. He was sentenced to 6 ½ years in prison. The CJEU was asked to give preliminary rulings on, effectively, two issues. First, could the “enhanced protection” provided by Article 28(3)(a) be subsequently lost, particularly by virtue of absence from the host state, irrespective of the reasons for absence. Secondly, what was the correct interpretation of the phrase “imperative grounds of public security” in Article 28(3)?[120]The CJEU (Grand Chamber) first noted, at [31], that on the wording of Article 28(3), the “decisive criterion” was whether the EU citizen had “lived in the Member State for the 10 years preceding the expulsion decision”. Secondly, the CJEU dealt with what absences (my emphasis) from the Member State during the 10 years preceding the decision to expel could prevent the citizen from enjoying the “enhanced protection” given by Article 28(3)(a). It stated that “an overall assessment” had to be made of the person’s situation “at the precise time when the question of expulsion arises”: [32]. In considering the absences from the Member State, the national authority responsible for applying Article 28(3) had to take all the relevant factors relating to the period (or periods) of absence into consideration: [33]. In [34] the CJEU referred to two specific situations: first, a forced return to the host Member State in order to serve a term of imprisonment there and, secondly, the time spent in prison following such a return. Those were two factors (if present) which would be part of the overall assessment, whose aim the CJEU said was to determine “whether the integrating links previously forged with the host Member State have been broken”: [34]. In summarising its view in [38] of its judgment, the CJEU also reiterated what it had said at [33], viz. that the object of the exercise of an “overall assessment” of the absences from the host Member State and the reasons for them was to see whether the assessment established “whether those absences involve the transfer to another State of the centre of the personal, family or occupational interests of the person concerned”.[121]It will be obvious that the CJEU did not have to consider the factual situation that has arisen in the present case, viz. where the EU citizen has acquired a PRR, has not subsequently been physically absent from the host Member State at all, but has been in prison in the host Member State for a part of the 10 years immediately prior to the expulsion decision. It would seem from the way the Court phrased its judgment that the fact of that imprisonment would not, of itself, lead to the loss of the “enhanced protection” given by Regulation 21(4)(a). Moreover, it also appears that the key questions for a tribunal to ask when considering whether there has been a period of 10 years residence prior to the decision to deport are whether:(a) that imprisonment involved either the transfer to another State of the centre of the personal, family or occupational interests of the person concerned, and/or(b) the “integrating links” previously forged with the host Member State had been broken: see [33], [34] and [38].[122]Like Pill LJ, I will consider separately the analysis of the CJEU in Tsakouridis on the interpretation of the wording “imperative grounds of public security” in Article 28(3).[123]In Jarusevicius the relevant question (for the purposes of the present case) was whether time spent in remand on custody could count towards the period of 5 years so as to enable Mr Jarusevicius to establish that he had a PRR in the UK. The UT (Blake J, President and Upper Tribunal Judge Goldstein), analysed all the cases I have referred to and the CJEU’s decision in Dias (analysed above by Pill LJ). The UT concluded that it was bound by this court’s decision in Cesar C to hold that periods spent in detention do not count towards the accrual of the five year continuous “legal” residence to establish a PRR: [57]. It distinguished Tsakouridis, which it noted, correctly, was dealing with the issue of what could lead to the loss of rights that had been gained. The UT stated (at [59 (iii)] that Tsakouridis “suggested that…the continuity of residence for the purpose of Regulation 21(4)(a) (ten years residence) is not broken by a period of imprisonment”. The UT commented (at [60]) that the AIT’s decision in LG & CC that “…prison also broke the continuity of residence [for the 10 year period] may have to be re-examined….”. That is precisely the exercise for us.[124]What conclusions can be drawn from all these cases? First, both HR and Cesar C state that the quality of residence must be the same for both the 5 year continuous period (to obtain PRR) and the 10 year period (to obtain the “enhanced protection”): it has to be “legal residence” ie. residence for the purpose of the Directive. Secondly, neither of the decisions of this court in HR and Cesar C deal directly with the present problem of whether a period of imprisonment during the 10 years immediately prior to the decision to deport means that the EEA national must lose the “enhanced protection” given by Regulation 21(4)(a) in circumstances where that person has established his PRR and has not lost it. (It will be recalled that in HR it was conceded that the appellant could not establish that he had ever obtained his right to PRR by five years continuous residence, because to do so he would have had to count his time in prison). Thirdly, although the AIT in LG & CC held that time in prison in LG’s case could not count towards the ten year period, that decision was based principally on an extrapolation of the reasoning in HR, itself based on a concession, and was made before the CJEU gave its ruling in Tsakouridis. Fourthly, the latter ruling indicates that a period in prison during the 10 years immediately prior to the decision to deport does not automatically mean that the EEA national must lose his “enhanced protection”. All factors have to be taken into account and the touchstone is whether there has been a transfer to another state of the centre of the personal, family or occupational interests of the person concerned and/or the integrating links previously forged with the Member State have been broken.[125]Fifthly, in construing Regulation 21(4)(a) we are, in principle, bound to follow the CJEU’s statements on the way Article 28(3) of the Directive is to be understood and applied in individual cases. There is no tension between the wording of the Directive and the Regulation. Therefore the only question that might arise is whether we are bound by any domestic decision to construe and apply Regulation 21(4)(a) in a way that is (or might seem to be) inconsistent with the CJEU’s opinion in Tsakouridis. In my view, we are clearly free to follow the guidance in the CJEU’s decision. We are not bound by the AIT’s decision in LG & CC. Moreover, that decision came before the CJEU set out the relevant principles in Tsakouridis. This court’s decision in HR did not deal with the same precise factual situation which confronts us. In any event, as has been said subsequently, notably by this court in Cesar C, the ratio of HR is narrow. In my view we are therefore not bound by this court’s decision in HR, given the facts of the present case.[126]How are these conclusions to be applied in this case? Before both the 2007 and 2008 Tribunals it was assumed that FV had “resided” in the UK for 10 years prior to the decision to deport. Effectively, therefore, the SSHD made a concession of both law and fact to that effect. The result of my analysis and that of Pill LJ is that the SSHD was correct in law to have conceded that FV’s period in prison from 2002-2006 did not automatically preclude a conclusion that he had resided in the UK for 10 years prior to the decision to deport. But what of the facts? If the matter were to be remitted to the UT to reconsider the facts and if the UT applies the opinion of the CJEU in Tsakouridis, then the UT would have to make an overall assessment of FV’s position in the ten years prior to 2007, with a view to seeing whether FV’s integrating links with the UK had been broken and/or the centre of FV’s personal, family or occupational interests had been transferred to another State. This would, in theory, require a factual investigation of the whole period from 1997 – 2007. Pill LJ has stated (in relation to the question of whether the SSHD can now argue that FV never had a PRR), that it would be unjust to require FV to prove facts to establish that he had a PRR in accordance with Regulation 15(1), bearing in mind it would mean adducing evidence relating to matters before 2001. I respectfully agree with that conclusion. Even if, on the way the CJEU expressed its opinion in Tsakouridis, some kind of evidential burden was placed on the SSHD to show a rupture in integration or a transfer of the centre of FV’s interests to another State, in my judgment it would be unjust to require FV to have to deal with factual issues prior to 2001 on this point, just as it would on the PRR point, so many years after the events and five years after the 2007 Tribunal decision in which no point was taken by the SSHD on the 10 year residence question. I think that the consequence of this is that we must be entitled to assume that there was no rupture of integration or transfer of the centre of FV’s interest to another State up to 2001.[127]If that is so, then what has changed in the period from 2001 to 2007 when the relevant decision was made? There is, effectively, only the period of imprisonment from 2002-2006 to consider. There can be no factual dispute about that aspect. To my mind, if, as we must assume, FV had a right to PRR before he was imprisoned, he was then integrated in the UK. On the facts of this case, I fail to see how a period of 4 years in prison in 2002-2006 could lead to a conclusion that FV’s existing “integrating links” with the UK had thereby been broken; or that the fact of FV’s imprisonment could show that his “centre of interest” had thereby become transferred to another Member State. As Pill LJ has pointed out, FV has been present in this country for 27 years, for 14 of which he was the husband of a UK citizen and he has children here. Nor can he be held responsible for any delay in the decision to deport him since his conviction and imprisonment in 2002.[128]Accordingly, I would decide this issue in FV’s favour now. I see no point in remitting this question to the UT. Did the 2008 Tribunal err in law in concluding (contrary to the 2007 Tribunal) that FV’s circumstances do not fall within the phrase “imperative grounds of public security” within Regulation 21(4)(a)?[129]Pill LJ has set out the relevant passages of the two key CJEU decisions (of the Grand Chamber) in Tsakouridis and PI on the interpretation of Article 28(3) of the Directive relating to the scope of the phrase “imperative grounds of public security”. In Tsakouridis the CJEU characterised the test to be applied at [48] of its judgment: does the person concerned represent a “genuine and present threat to the fundamental interests of society or of the Member State concerned”. In the same paragraph the Court noted that previous criminal convictions were not, in themselves, enough to satisfy the test; nor could a Member State rely on general justifications isolated from the facts of the case or on “considerations of general prevention”. Thus, the Court held, the facts of the particular case have to be closely examined to see if the only way that those fundamental interests could be protected was by expulsion. In this regard, the tribunal considering whether or not there should be expulsion had to consider the length of time that the person had resided in the Member State and any negative consequences expulsion may have for the person concerned: see [49].[130]On the basis of Tsakouridis [49], I accept that there is a link between the length of time that the EEA national who is being considered for deportation has legally resided in the UK and whether it is appropriate to deport under Regulation 21(4)(a). I also accept that, in [50] of Tsakouridis, the CJEU emphasised that the tribunal deciding on whether to deport is entitled to take into account the personal conduct of the person concerned, the nature and extent of the crime committed (if any), the penalties that could have been imposed and those that were and also the possibility of re-offending. Against those factors, the tribunal has to balance “the risk of compromising the social rehabilitation of the Union citizen in the State in which he has become genuinely integrated….which is not only in his interests but also in that of the EU in general”.[131]In PI the CJEU emphasised, at [19] and [20], that the concept of “imperative grounds of public security” within Article 28(3) of the Directive was “considerably stricter” than that of “serious grounds” within Article 28(2). The former presupposed a threat to “public security” of a “particularly high level of seriousness”. Member States were free to determine the requirements of public policy and security in accordance with their national needs, which can vary from State to State, but those requirements had to be “interpreted strictly” and were subject to control by the institutions of the EU: [23].[132]In [24] – [28] of PI, the Court considered factors that must be taken into account when deciding whether offences such as those committed by PI in that case were covered by the concept of “imperative grounds of public security”. The Court said that criminal offences that are within the second sub-paragraph of Article 83(1) of what is now called the Treaty on the Functioning of the European Union (“TFEU” - ie. the amended Treaty of Rome) could reach the threshold of Article 28(3) of the Directive, if the manner in which such an offence had been committed disclosed “particularly serious” characteristics. The offences listed in that sub-paragraph have a cross-border dimension. Murder and manslaughter are not on the list. The offences listed are:
“terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime”
. There is provision to make additions to the list but we were told that there have been none. However, the Court also stated that, to come within the scope of Article 28(3), the crime of the particular individual must constitute a “particular threat to one of the fundamental interests of society, which might pose a direct threat to the calm and physical security of the population”. Thus, it seems to me, that the threat has to be more general than a threat to a particular individual.[133]In its decision in LG & CC the AIT discussed the ambit of “imperative grounds of public security” in Regulation 21(4)(a). But that decision pre-dates the CJEU Grand Chamber judgments in Tsakouridis and, of course, PI, which must now be our guides. The AIT referred to the “UKBA Criminal Casework Directorate Case Owner Process Instructions” and set out the relevant parts of the Instructions extant at the time of that decision in Appendix B to its judgment. Those Instructions will need reconsideration in the light of the two CJEU decisions on both the ten year period of residence and the ambit of the concept of “imperative grounds”.[134]On the basis of my analysis above, I must therefore respectfully agree with Pill LJ that the 2007 Tribunal plainly erred in law in its approach to “imperative grounds of public security” and the 2008 Tribunal was correct so to conclude. The question for this court on this issue is whether the 2008 Tribunal itself then erred in law in arriving at its decision that the circumstances of FV did not come within the phrase “imperative grounds of public security” in Regulation 21(4)(a) so that the SSHD was not entitled to deport him. Obviously, the 2008 Tribunal did not have the CJEU decisions of Tsakouridis and PI before it, but, in my view, it does not follow that the Tribunal therefore made a material error in law. The 2008 Tribunal quoted a passage from [32 (5)] of the judgment of Carnwath LJ in the Court of Appeal (first appeal) in LG [2008] EWCA Civ 190, in which he considered, (whilst emphasising that he was not reaching any conclusions) the tests of “serious grounds” and “imperative grounds” of “public security”. In the context of various provisions in the extant version of the Home Office’s “Operational Enforcement Manual”, which contained guidance on the provisions, Carnwath LJ pointed out that neither version of the Manual put before the court had, in his view, given adequate weight to the distinction between “level two” (ie. “serious grounds”) and “level three” (ie. “imperative grounds”). In his view there was a “qualitative difference” between the two. He continued: “…in other words, level three requires, not simply a serious matter of public policy, but an actual risk to public security, so compelling that it justifies the exceptional course of removing someone who (in the language of the Preamble to the Directive) has become “integrated” by “many years” residence in the host state”.[135]Arden LJ, who examined the French version of the text of the Directive, suggested that the test might be something even more than “compelling reasons”: [48]. Mummery LJ agreed with the judgment of Carnwath LJ.[136]In my view, there is nothing in the statement of Carnwath LJ in LG (in the first Court of Appeal decision) that is inconsistent with what the CJEU has subsequently stated in Tsakouridis and PI on the scope of “imperative grounds of public security”. The 2008 Tribunal was conscious of the fact that it was dealing with the top “level” in the hierarchy. It considered the nature of the offence committed by FV, which was a single incident of homicide committed against a flatmate in the context of their drunken relationship and where the jury had found that FV had been provoked. The 2008 Tribunal considered in detail the OASys Reports and the question of possible re-offending. Their interpretation of those reports, even if it could be criticised, cannot, in my view, be regarded as so unreasonable as to constitute a material error of law. The 2008 Tribunal also drew a distinction, rightly on my view of the CJEU cases, between a person who is so homicidal that he presents a significant risk of killing members of the public at random and a person who might be violent towards a specific person (in this case FV’s wife) which brought with it a danger of death to that specific person. The 2008 Tribunal was correct to conclude that FV fell only into the latter category. It also had in mind the fact, which was common ground before them, that FV was to be treated as being “integrated” in the UK, because he had obtained a PRR and he had been “resident” for 10 years immediately prior to the deportation decision.[137]I agree with Pill LJ that the 2008 Tribunal made a finding of fact that FV’s circumstances do not fall within the ambit of “imperative grounds of public security”. If that finding had been based upon a wrong view of the scope of “imperative grounds of public security” then, clearly, this issue would have to be remitted to the UT. But, for the reasons I have attempted to give, I have concluded that there was no material error by the 2008 Tribunal. In my view the 2008 Tribunal’s conclusion that, whatever the true ambit of “imperative grounds of public security” might be, the facts of this case did not come within it, was correct.

Conclusion

[138]Having reached these conclusions on the first three issues I have identified, there is no need for me to consider the fourth issue I outlined above. I also would therefore dismiss the appeal. In the circumstances I also agree that we should not make a reference to the CJEU in this case.

Lady Justice Rafferty :

[139]I agree with Aikens LJ.

Cited in 5 later judgments