AA (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 1249

[2015] EWCA Civ 1249

Case No C5/2014/3373

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Upper Tribunal Judge Jordan

Appeal no. DA/01583/2013

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 08/12/2015

Before

LORD JUSTICE RICHARDS

LADY JUSTICE GLOSTER

MR JUSTICE BAKER

Between

AA (Nigeria)Respondent

Secretary of State for the Home DepartmentAppellant

Brian Kennelly (instructed by The Government Legal Department) for Appellant

Sibghatullah Kadri QC and Rashid Ahmed (instructed by Obaseki Solicitors) for Respondent

Hearing Hearing date : 11 November 2015

Judgment

Lord Justice Richards :

[1]The respondent is originally from Nigeria. He migrated to Norway in 1982 and was granted Norwegian citizenship in 1996 or 1997. He came to the United Kingdom in 2002 in the exercise of his rights of free movement as an EEA national. Thereafter he acquired the right to reside in the United Kingdom permanently, pursuant to regulation 15(1) of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”), by virtue of a five year period of continuous residence here between 2004 and 2009. He has a wife and three children who have also acquired a right of permanent residence here, as family members, but the present appeal is concerned only with the respondent’s position.

[2]In August 2010 the respondent was convicted of the importation of one kilogram of a class A drug, cocaine, and was sentenced to six years’ imprisonment. On 8 August 2013 he was served with notice of a decision to make a deportation order against him under regulation 19(3)(b) of the EEA Regulations. By regulation 21(3), a decision to deport a person with a right of permanent residence in the United Kingdom may not be taken except on “serious grounds of public policy or public security”. The Secretary of State considered that the deportation was justified on serious grounds of public policy.

[3]The First-tier Tribunal allowed the respondent’s appeal against the Secretary of State’s decision. The Secretary of State appealed in turn to the Upper Tribunal, which held that the First-tier Tribunal had made no error of law and that its determination should stand. The Secretary of State was then granted permission to appeal to this court against the Upper Tribunal’s determination, on grounds that had not been raised either before the First-tier Tribunal or on the appeal to the Upper Tribunal. Those grounds are based on case-law of the Court of Justice of the European Union (“the CJEU”) relating to the acquisition of the right of permanent residence under the EU directive which the EEA Regulations implement, namely Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”).

[4]The grounds of appeal are in summary that(1) the tribunals erred in failing to consider whether the respondent lost his right of permanent residence by reason of his offence and imprisonment; alternatively,

(2) even if the respondent retained his right of permanent residence, the tribunals erred in their approach to the question whether there were serious grounds of public policy justifying the respondent’s deportation, in particular in failing to consider whether his offence and imprisonment diminished his degree of integration within the United Kingdom. There is a third ground of appeal but Mr Kennelly, counsel for the Secretary of State, accepted that it is indistinguishable in substance from the second.

The EEA Regulations

[5]Regulation 15 of the EEA Regulations is concerned with the right of permanent residence. It provides, so far as material: “15.(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; …

(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.

(3) But this regulation is subject to regulation 19(3)(b).” (a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; …

[6]Regulation 19 concerns exclusion and removal from the United Kingdom. It includes the following:

“19. … (3) Subject to paragraphs (4) and (5) [which are not material to this case], a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if – (a) he does not have or ceases to have a right to reside under these Regulations; or (b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.” (a) he does not have or ceases to have a right to reside under these Regulations; or (b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.”

[7]Regulation 21 governs decisions taken on grounds of public policy, public security or public health. It provides in material part: “21(1) In this regulation a ‘relevant decision’ means an EEA decision taken on the grounds of public policy, public security or public health. … (3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security. (4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who –(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision … (5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles – (a) the decision must comply with the principle of proportionality;

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

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

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

(e) a person’s previous criminal convictions do not in themselves justify the decision. (6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person’s length of residence in the United Kingdom, the person’s social and cultural integration into the United Kingdom and the extent of the person’s links with his country of origin.” (a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision … (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.

The Directive

[8]The Directive relates in terms to EU citizens but the rights under it are extended to EEA nationals. It is common ground that the EEA Regulations are, so far as material, a correct implementation of the Directive and that they have to be interpreted in accordance with the Directive. Since, however, the relevant CJEU case-law relates to provisions of the Directive, it is necessary to give a brief description of those provisions here.

[9]The right of permanent residence is governed by Chapter IV of the Directive. Article 16 contains the eligibility provisions to which effect is given in regulation 15 of the EEA Regulations. Article 16(1) corresponds to regulation 15(1), providing that EU 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. It specifies that the right shall not be subject to the conditions provided for in Chapter III of the Directive: i.e. once the right of permanent residence is acquired, and unless and until it is lost, it is not subject to the conditions to which lawful residence of an EU citizen in the territory of another Member State is otherwise subject under the Directive. Article 16(2) provides that Article 16(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. Article 16(4) corresponds to regulation 15(2), providing that 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”.

[10]Chapter VI of the Directive concerns restrictions on rights of entry and residence. Article 27(1) provides that, subject to the conditions of the Chapter, Member States may restrict the free movement and residence of EU citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. Article 27(2) provides that measures taken on grounds of public policy or public security shall comply with certain conditions, corresponding to those set out in regulation 21(5) of the EEA Regulations. Article 28(1) provides that before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations corresponding to those set out in regulation 21(6) of the EEA Regulations. Article 28(2) lays down the stricter test, corresponding to regulation 21(3) of the EEA Regulations, for those with a right of permanent residence, namely that the host Member State may not take an expulsion decision against EU citizens or their family members who have the right of permanent residence on its territory, “except on serious grounds of public policy or public security”. Article 28(3)(a) lays down the even stricter test, corresponding to regulation 21(4) of the EEA Regulations, that an expulsion decision may not be taken against EU citizens who have resided in the host Member State for the previous ten years, “except if the decision is based on imperative grounds of public security”.

The CJEU case-law on the Directive

[11]I propose to summarise in this section the relevant CJEU case-law on the Directive, some of which is quite dense. This will make it easier to explain and discuss Mr Kennelly’s submissions when I come to them.

[12]Member States were required to transpose the Directive into national law by 30 April 2006. It was only from that date that the right of permanent residence under the Directive could be acquired. One of the issues considered in the relevant cases, however, is the effect of residence before 30 April 2006 on the acquisition of the right after that date.

[13]In

Case C-162/09

, Secretary of State for Work and Pensions v Lassal

[2010] ECR I-9217

, [2011] All ER (EC) 1169, the CJEU held that Article 16(1) and (4) of the Directive are to be interpreted as meaning that(a) continuous periods of five years’ residence completed before 30 April 2006 in accordance with earlier EU instruments must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1), and

(b) absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date, do not affect the acquisition of the right of permanent residence pursuant to Article 16(1). The references to residence in accordance with earlier EU instruments, and to legal residence, are references to residence meeting the conditions of the various EU regulations and directives that governed the right of nationals of a Member State to reside in another Member State: for example, Council Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families. Those instruments were repealed and replaced by the Directive.

[14]

Case C-325/09

, Secretary of State for Work and Pensions v Dias

[2011] ECR I-6387

, [2012] All ER (EC) 199 involved a similar question to that in Lassal but on a more complex set of facts. Mrs Dias was a Portuguese national who had entered the United Kingdom in January 1998. Her periods of residence in the United Kingdom were divided into five. In the first two, amounting in total to more than five years between January 1998 and April 2003, she was either in work or on maternity leave and was legally resident in accordance with the relevant EU instruments. In the third period, of about a year between April 2003 and April 2004, she was not working and did not meet the conditions of the relevant EU instruments, though she had previously been granted a residence permit pursuant to Directive 68/360/EEC which extended to the third period. In the fourth period, of almost three years between April 2004 and March 2007, she was in work once more. In the fifth period, from March 2007, she was not working. But it was on the first three periods that the decision in the case turned.

[15]In the light of its decision in Lassal, the CJEU reformulated the questions referred as asking, in essence, “whether the periods of residence of a Union citizen in a host member state which were 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 met, and which occurred before 30 April 2006 but after a period of legal residence of five years which ended prior to that date, are such as to affect the acquisition of the right of permanent residence under art 16(1) of Directive 2004/38” (paragraph 41). It held that periods of residence completed solely on the basis of a residence permit validly issued under Directive 68/360, without the conditions governing entitlement to any right of residence being met, could not be regarded as having been completed legally for the purposes of the acquisition of such a right of permanent residence. Such was therefore the position in relation to Mrs Dias’s third period of residence.

[16]The court then turned to consider whether that third period of residence affected the acquisition of a right of permanent residence by reason of the five years’ continuous legal residence in the first and second periods, in circumstances where all three periods of residence occurred before 30 April 2006 and a right of permanent residence could only be acquired with effect from that date. For a proper understanding of the court’s reasoning, I think it necessary to set out the relevant passage of the judgment in full:

“59. In that connection, it should be borne in mind, first of all, that the court has already ruled that art 16(4) of Directive 2004/38 refers to loss of the right of permanent residence by reason of absences of more than two consecutive years from the host member state and that such a measure may be justified because, after an absence of that duration, the link with the host member state is loosened (see Lassal’s case (para 55)). 60. Next, the court has also held that that provision falls to be applied independently of whether the periods of residence in question were completed before or after 30 April 2006, for the reason that, since residence periods of five years completed before that date must be taken into account for the purpose of acquisition of the right of permanent residence provided for in art 16(1) of Directive 2004/38, non-application of art 16(4) thereof to those periods would mean that the member states would be required to grant that right of permanent residence even in cases of prolonged absences which call into question the link between the person concerned and the host member state (see Lassal’s case (para 56)). 61. Finally, the court has held that the application of art 16(4) of Directive 2004/38 to continuous periods of five years’ legal residence completed before 30 April 2006 implies, in particular, that absences from the host member state of less than two consecutive years occurring after those periods but before that date are not such as to affect the link of integration of the Union citizen concerned and, accordingly, those absences are not such as to affect the acquisition of the right of permanent residence pursuant to art 16(1) of Directive 2004/38 (see Lassal’s case (paras 57, 58)). 62. Such reasoning must also be applied by analogy to periods of residence 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 but after a continuous period of five years’ legal residence completed prior to that date. 63. Even though art 16(4) of Directive 2004/38 refers only to absences from the host member state, the integration link between the person concerned and that member state is also called into question in the case of a citizen who, while having resided legally for a continuous period of five years, then decides to remain in that member state without having a right of residence. 64. In that regard, it should be noted, as Advocate General Trstenjak has stated in paras 106 and 107 of her opinion, that the integration objective which lies behind the acquisition of the right of permanent residence laid down in art 16(1) of Driective 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 art 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 art 16(1) of Directive 2004/38.”

[17]Thus, in the application of Article 16(4) by analogy, the court equated(a) a period of residence in the host Member State without satisfying the conditions governing entitlement, as a matter of EU law, to a right of residence in that Member State, with

(b) a period of absence from the host Member State; so that a period of less than two consecutive years of such residence would not affect the acquisition of a right of permanent residence by reason of a prior period of five years’ continuous legal residence in the host Member State.

[18]The application of Article 16(4) by analogy followed the course recommended by the Advocate General, part of whose opinion is referred to with approval in paragraph 64 of the court’s judgment. At paragraph 101 of her opinion, the Advocate General said that Article 16 of the Directive contains “an unintended legislative lacuna” with regard to cases in which an EU citizen remains illegally and contrary to the wishes of the host Member State in that state following a period of more than five years’ legal residence within the meaning of Article 16(1). At paragraph 103 she said that “the legislative evaluations” which find expression in Article 16 constitute an argument for applying Article 16(4) by analogy in certain cases. She continued:

“104. The origins of Directive 2004/38 indicate that the European Union legislature intended by art 16 of the directive to grant Union citizens who have attained a certain level of integration in a host member state a right of permanent residence in that state. That right should exist as long as that level of integration is not diminished. Article 16(1) of Directive 2004/38 indicates that the legislature concluded that a Union citizen attains the necessary level of integration to justify a right of permanent residence where he has resided legally for a continuous period of at least five years in the host member state. Article 16(4) of the directive indicates that only by an absence from the host member state of more than two years is such a close link sufficiently loosened as to result in the grant of a right of permanent residence no longer being justified. If those legislative evaluations are taken into account, an analogous application of art 16(4) of the directive then seems to be justified, in a situation in which the level of integration attained by a Union citizen following legal residence for a continuous period of more than five years is gravely diminished to a degree comparable to that resulting from absence of more than two years. 105. In that connection, the question arises, first, whether that is at all possible where the Union citizen remained in the host state. It could be countered that continued residence in the host member state could never gravely diminish the level of integration attained in the same way as absence from that state. That point of view appears to me to go too far. 106. First, the integration objective which lies behind art 16 of the directive is based not only on territorial and time factors but also on qualitative elements. It therefore seems to me quite possible that unlawful conduct of a Union citizen may diminish his integration in the host state from a qualitative point of view. In so far as a Union citizen, following a period of legal residence in the host member state, remains without a right of residence based on European Union law or national law in the host member state, and the national authorities do not grant leave to remain, that can clearly in my view be taken into account from the perspective of integration.”

[19]

Case C-378/12

, Onuekwere v Secretary of State for the Home Department (judgment of 16 January 2014) concerned a Nigerian national who had married in 1999 an Irish national exercising her EU right of free movement and residence in the United Kingdom. The proceedings arose out of his application for a permanent residence card, which was refused. He had been resident in the United Kingdom for over nine years at the date of the decision, but that period had been interrupted by periods of imprisonment and there was no continuous period of five years’ residence outside prison.

[20]The court held that the periods of imprisonment could not be taken into consideration for the purposes of the acquisition of a right of permanent residence pursuant to Article 16(2) of the Directive. The first reason was that Article 16(2) requires that family members of the relevant EU citizen must have resided legally and continuously “with” that citizen for the period in question. The court continued:

“24. Secondly, it must be recalled that, as recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of Union citizenship. The EU legislature accordingly made the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host Member State (see Case C-162/09 Lassal [2010] ECR I-9217, paragraphs 32 and 37). 25. Such integration, which is a precondition of 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 temporal factors but also on qualitative elements, relating to the level of integration in the host Member State (see Case C-325/09 Dias [2011] ECR I-6387, paragraph 64), to such an extent that the undermining of the link of integration between the person concerned and the host Member State justifies the loss of the right of permanent residence even outside the circumstances mentioned in Article 16(4) of Directive 2004/38 (see, to that effect, Dias, paragraphs 59, 63 and 65). 26. The imposition of a prison sentence by the national court is such as to show the non-compliance by the person concerned with the values expressed by the society of the host Member State in its criminal law, with the result that the taking into consideration of periods of imprisonment for the purposes of the acquisition by family members of a Union citizen who are not nationals of a Member State of the right of permanent residence for the purposes of Article 16(2) of Directive 2004/38 would clearly be contrary to the aim pursued by that directive in establishing that right of residence.”

The court went on to hold, essentially for the reasons given in paragraph 26 of the judgment, that for the purposes of Article 16(2), continuity of residence is interrupted by periods of imprisonment in the host Member State.

[21]The court’s judgment in Onuekwere was given on the same day, and by the same Chamber, as its judgment in

Case C-400/12

, Secretary of State for the Home Department v MG, where the relevant issue related to the effect of periods of imprisonment on the calculation of the ten-year period for the purposes of the enhanced protection conferred by Article 28(3)(a), whereby imperative grounds of public security are required to justify expulsion. The court held that a period of imprisonment is capable of interrupting the continuity of the period of residence for the purposes of that provision, and of affecting the decision regarding the grant of enhanced protection even where the person concerned resided in the host Member State for ten years prior to imprisonment. As part of its reasoning in support of that conclusion, it said this:

“31. The Court has also found, when interpreting Article 16(2) of Directive 2004/38, that the fact that a national court has imposed a custodial sentence is an indication that the person concerned has not respected the values of the society of the host Member State, as reflected in its criminal law, and that, in consequence, the taking into consideration of periods of imprisonment for the purposes of the acquisition, by members of the family of a Union citizen who are not nationals of a Member State, of the right of permanent residence as referred to in Article 16(2) of Directive 2004/38 would clearly be contrary to the aim pursued by that directive in establishing that right of residence (Case C-378/12 Onuekwere [2014] ECR, paragraph 26). 32. Since the degree of integration of the person concerned is a vital consideration underpinning both the right of permanent residence and the system of protection against expulsion measures established by Directive 2004/38, the reasons making it justifiable for periods of imprisonment not to be taken into consideration for the purposes of granting a right of permanent residence or for such periods to be regarded as interrupting the continuing of the period of residence needed to acquire that right must also be borne in mind when interpreting Article 28(3)(a) of that directive. 33. It follows that periods of imprisonment cannot be taken into account for the purposes of granting the enhanced protection provided for in Article 28(3)(a) of Directive 2004/38 and that, in principle, such periods interrupt the continuity of the period of residence for the purposes of that provision.”

First issue: loss of the right of permanent residence

[22]Mr Kennelly submits first that the tribunals erred in law, on the basis of a concession wrongly made by the Secretary of State, in failing to consider whether the respondent had lost his right of permanent residence by reason of his sentence of imprisonment for a serious criminal offence. This led them to consider that the respondent could be deported only if it was justified by serious grounds of public policy or public security, within regulation 21(3) of the EEA Regulations, whereas seriousgrounds did not have to be shown if the respondent had lost his right of permanent residence.

[23]It is misleading to say that the failure of the tribunals to consider this issue was the result of a “concession” by the Secretary of State. It was certainly conceded, as it still is, that the respondent had acquired a right of permanent residence in the United Kingdom; but the question whether he had lost that right by reason of his sentence of imprisonment does not appear to have been given any consideration, either at the time of the original decision or in the proceedings before the tribunals. The Secretary of State took the deportation decision on the basis that serious grounds of public policy had to be shown. The case was argued on that basis in the First-tier Tribunal and in the Upper Tribunal. It evidently did not occur to anybody, prior to the application for permission to appeal to this court, to take the point now advanced. Whether in those circumstances the tribunals could be said to have erred in law in failing to consider the point is a matter to which I will return. First, however, I will examine the merits of the point itself.

[24]The argument advanced on behalf of the Secretary of State is along the following lines:(1) Whilst Article 16(4) of the Directive (reflected in regulation 15(2) of the EEA Regulations) states that the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years, it has been given a wider interpretation in the CJEU case-law. The principle underlying the acquisition, pursuant to Article 16(1), of a right of permanent residence by reason of five years’ continuous legal residence is that after that period the EU citizen is integrated in the host Member State. The justification for the loss of the right through two consecutive years’ absence is that an absence of that duration loosens the link with the host Member State (see e.g. Dias, paragraph 59). But the link can be loosened in other circumstances too.

(2) Thus, in Dias the court held that “the integration link … is also called into question in the case of a citizen who, while having resided legally for a continuous period of five years, then decides to remain … without having a right of residence” (paragraph 63). The court, following the opinion of the Advocate General, said that the integration objective which lies behind the acquisition of the right of permanent residence “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” (paragraph 64). This led the court to apply Article 16(4) by analogy to periods of residence in the host Member State during which the conditions of entitlement to a right of residence in that Member State were not satisfied. The court did not say that that was the only other way in which the integration link could be loosened. The Advocate General had expressed it in general terms, stating that it was “quite possible that unlawful conduct of a Union citizen may diminish his integration in the host state from a qualitative point of view” (paragraph 106 of her opinion).

(3) A significant factor in weakening the integration link between the person concerned and the host Member State is a period of imprisonment. In Onuekwere the court referred to Dias for the proposition that “the undermining of the link … justifies the loss of the right of permanent residence even outside the circumstances mentioned in Article 16(4)” (paragraph 25), before going on to state that the imposition of a prison sentence by the national court “is such as to show the non-compliance by the person concerned with the values expressed by the society of the host Member State in its criminal law”, with the result that periods of imprisonment should not be taken into account for the purposes of the acquisition of the right of permanent residence (paragraph 26). It is implicit in the court’s reasoning that, just as periods of imprisonment do not count towards the residence required for the acquisition of a right of permanent residence, so too they can undermine the link of integration for the purpose of Article 16(4) and may cause a person to lose a right of permanent residence previously acquired. The judgment of the court in MG treats imprisonment in the same way as in Onuekwere, holding that it affects a person’s degree of integration in the host Member State and interrupts continuity of residence for the purposes of the enhanced protection provided for in Article 28(3)(a).

(4) Accordingly, the tribunals in this case should have considered whether the sentence of six years’ imprisonment imposed on the respondent for a serious offence loosened the link of integration with the United Kingdom sufficiently to cause him to lose his right of permanent residence here. In his skeleton argument, Mr Kennelly submitted that if the matter had been considered, the First-tier Tribunal “would have found that the offence was sufficiently serious” to break the link and cause the right of permanent residence to be lost. In his oral submissions, he did not go as far as that but argued in favour of a remittal to the tribunal so as to give the parties an opportunity to address the tribunal on the point.

(5) If the right of permanent residence was lost, Mr Kennelly submitted that the respondent’s deportation would have to be justified by grounds of public policy or public security in accordance with the principles in regulation 21(5) but that it would not be necessary to demonstrate serious grounds. He did not contend that, if the right of permanent residence was lost, the respondent would cease to have any right of residence under the EEA Regulations and could therefore be deported pursuant to regulation 19(3)(a) without the need to justify the deportation on grounds of public policy or public security.

[25]In my judgment, Mr Kennelly’s argument involves a misapplication of the CJEU case-law and is unfounded. The case-law relied on is directed exclusively at the acquisition of a right of permanent residence (or, in the case of MG, the acquisition of the ten years’ continuous residence required for enhanced protection). It is not directed at the loss of the right of permanent residence once it is acquired.

[26]In particular, Dias was concerned with the circumstances in which periods of residence prior to the transposition date of 30 April 2006 could give rise to the acquisition of a right of permanent residence as from that date. Article 16(4) was applied by analogy to cover the situation of residence in the host Member State without satisfying the conditions of entitlement to any right of residence as a matter of EU law, since that situation was considered to be comparable to a period of absence from the host Member State. That the focus was on the acquisition of a right of permanent residence is underlined by the fact that the situation to which Article 16(4) was applied by analogy, namely residence without satisfying the conditions of entitlement to a right of residence, was one that could not arise once a right of permanent residence had been acquired: Article 16(1) specifies that the right of permanent residence shall not be subject to the conditions to which lawful residence of an EU citizen in the territory of another Member State is otherwise subject under the Directive.

[27]Similarly, Onuekwere was concerned with the calculation of the continuous period of five years’ legal residence required for the acquisition of the right of permanent residence as a family member under Article 16(2), which is materially the same test as that for EU citizens under Article 16(1). It is true that in holding that periods of imprisonment do not count towards the residence required for the acquisition of a right of permanent residence, the court based itself on the reasoning in Dias that the link of integration can be loosened by qualitative factors, treating a sentence of imprisonment as such a factor because it shows “the non-compliance by the person concerned with the values expressed by the society of the host Member State in its criminal law” (paragraph 26). But again the court was not considering how a right of permanent residence may be lost once it has been acquired. The statement that “the undermining of the link of integration between the person concerned and the host Member State justifies the loss of the right of permanent residence even outside the circumstances mentioned in Article 16(4)” (paragraph 25) was based on Dias and, for the reasons explained above when considering Dias, must be understood accordingly as referring to circumstances that prevent the right of permanent residence being acquired in the first place, not to circumstances that cause the right to be lost once it has been acquired.

[28]Moreover, it seems to me that Mr Kennelly’s argument is contrary to the scheme of the Directive:(1) The acquisition of a right of permanent residence is dependent upon a sufficient degree of integration into the host Member State. That objective is fulfilled by the rule relating to a continuous period of five years’ lawful residence.

(2) Once a right of permanent residence has been acquired, however, the Directive provides in terms, in Article 16(4), that it may be lost only through absence from the host Member State for a period exceeding two consecutive years. As explained above, once a right of permanent residence has been acquired, there is no scope for applying Article 16(4) by analogy, as was done in Dias, to a period of residence in the host Member State without satisfying the conditions of entitlement to a right of residence.

(3) Nor, in my judgment, can Article 16(4) sensibly be interpreted as extending by implication to a period of imprisonment for a criminal offence, even though, for the reasons given in Onuekwere, such a period of imprisonment does not count towards the residence required for the acquisition of a right of permanent residence in the first place. To interpret it in that way would be to introduce an additional and unwarranted element into the legislative scheme. Article 28(2) of the Directive provides in terms that a Member State may not take an expulsion decision against an EU citizen with a right of permanent residence on its territory, except on serious grounds of public policy or public security. Article 27(3) spells out that measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned; previous criminal convictions shall not in themselves constitute grounds for taking such measures; and the personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. This is why the consideration of future risk, as distinct from the fact of previous convictions, plays such an important part in practice in expulsion cases covered by the Directive; and the exercise is of particular importance in the case of a person with a right of permanent residence, where expulsion must be justified by serious grounds of public policy or public security.

(4) Thus, the Directive sets out how criminality is to be factored into the assessment of whether there are serious grounds of public policy or public security to justify the expulsion of a person with a right of permanent residence. To interpret Article 16(4) as allowing for the right of permanent residence to be lost by reason of criminality or a resulting sentence of imprisonment, so that serious grounds of public policy or public security no longer had to be shown in order to justify expulsion, would be to subvert the legislative scheme. The case-law relied on by the Secretary of State does not warrant that result and should not be read across, out of context, as producing such a result.

[29]Counsel for each party raised the possibility of a reference to the CJEU for a preliminary ruling on the issue raised by this ground of appeal. In my judgment, however, for the reasons I have given, the correct interpretation of the Directive is sufficiently clear without the need for a reference.

[30]If, contrary to the above, I had accepted Mr Kennelly’s argument on the interpretation of the Directive, it would have been necessary to go on to consider the further question whether the First-tier Tribunal could be said to have erred in law by failing to consider whether the respondent had lost his right of permanent residence by reason of his sentence of imprisonment. The CJEU’s judgment in Onuekwere was given less than a week before the hearing of the present case in the tribunal and just over a month before the tribunal’s decision was promulgated. Neither that judgment nor any of the other CJEU cases cited to us was relied on before the tribunal or drawn to the tribunal’s attention by the parties. I find it difficult to accept that in those circumstances the tribunal ought to have considered the issue of its own motion and to have applied the case-law in the way in which Mr Kennelly has sought to apply it before this court. This was not an obvious point in the Robinson sense (see R v Secretary of State for the Home Office, ex p. Robinson

[1998] QB 929

). The same considerations apply to the proposition that the Upper Tribunal fell into legal error by failing to consider the point and, more particularly, by failing to identify an error of law on the part of the First-tier Tribunal in relation to the point.

[31]I recognise, however, that in Bulale v Secretary of State for the Home Department

[2008] EWCA Civ 806

[2009] QB 536

, this court held that it could consider an issue as to the interpretation of the Directive (namely, whether a propensity to commit robberies of the kind committed by the appellant in that case constituted a sufficiently serious threat to the fundamental interests of society) notwithstanding that the point had not been raised in the tribunal below and was not obvious in the Robinson sense. Buxton LJ, in a judgment with which the other members of the court agreed, said:

“23. Miss Broadfoot [counsel for the Secretary of State] pointed out, correctly, that this issue had not been raised before the AIT, nor in the skeleton settled by Mr Bulale’s previous advisers in this court. The AIT could not, therefore, have erred in law in not addressing the point; on a reconsideration, which this case was, the AIT only had jurisdiction to consider points addressed in the order for reconsideration or those which were Robinson-obvious; and accordingly this court in turn had no jurisdiction to consider the point on appeal. 24. I have concluded that this court does have jurisdiction to consider this issue, but I would emphasise the importance of the principles referred to in the previous paragraph, and the importance of only departing from them in very particular circumstances. I would agree with Miss Broadfoot that the point now under consideration is not ‘Robinson-obvious’ in the sense that a court could be criticised for not taking it of its own motion. However, the issue appeared to this court, on seeing the papers, to be engaged and to be of some general importance. That was the principal reason why the court went to the considerable lengths described earlier in this judgment to ensure that Mr Bulale was represented before it, and that this point was taken on his behalf. The basis of the Robinson doctrine is, as Lord Woolf MR said, [1998] QB at p.945B-G, that as organs of the state the appellate authorities are bound to exercise their powers to ensure the state’s compliance with its international obligations. That observation was in Robinson itself directed at the High Court in its appellate role, but they must apply equally to the Court of Appeal. Accordingly, and whether or not the point is ‘obvious’, once it has in fact occurred to the court it must be open to the court to pursue it. I stress that this gives no general licence to the parties to reformulate their case once it arrives in this court.”

[32]I have no difficulty with the notion that this court has jurisdiction to consider an issue even though it was not considered by the tribunals below, but I am more doubtful whether the tribunals could be said to have erred in law by failing to consider an issue that was not raised before them and was not obvious in the Robinson sense (and, I should perhaps add, that did not go to jurisdiction). The court in Bulale appears to have been of the view that an appeal could in principle succeed in the circumstances described; but that was not put to the test, since the actual appeal was dismissed because the tribunal was found to have made a finding that it was entitled to reach as a matter of EU law.

[33]Counsel in the present case did not refer to the authorities on this subject; and whilst Robinson was put to them by the court in the course of argument at the hearing, Bulale was not. In all the circumstances, since no decision is needed on the point, I think it better not to express any concluded view on the question whether, if the substantive argument advanced by Mr Kennelly under the first ground of appeal were correct, it would justify a finding of error of law by the Upper Tribunal and the remittal of the case for a fresh determination.

Second issue: serious grounds of public policy

[34]The second ground of appeal is in the alternative to the first. It proceeds on the assumption that the respondent had not lost his right of permanent residence and that it was therefore necessary to show serious grounds of public policy or public security to justify his expulsion. The contention is that the tribunals erred in law in failing to consider the impact of the respondent’s offence or imprisonment on the degree of his integration within the United Kingdom when determining whether serious grounds of public policy existed. Reliance is placed on the CJEU case-law examined above, as showing that imprisonment may diminish the qualitative aspects of integration in the host Member State. Stress is again placed in particular on the statement in paragraph 26 of the judgment in Onuekwere that “the imposition of a prison sentence by the national court is such as to show the non-compliance by the person concerned with the values expressed by the society of the host Member State in its criminal law”; and on the court’s reliance on the same point in MG in support of the conclusion that periods of imprisonment are not to be taken into account for the purposes of the provision relating to the acquisition of enhanced protection by reason of ten years’ residence in the host Member State. Mr Kennelly also referred to the Advocate General’s observation in Dias that “unlawful conduct” may diminish a person’s integration in the host Member State from a qualitative point of view.

[35]The short answer to that submission is that nothing in Dias, Onuekwere or MG is directed towards the criteria to be applied under the Directive, in particular pursuant to Article 27(2) and Article 28(1), when determining whether expulsion is justified by serious grounds of public policy or public security; criteria which are mirrored in regulation 21 of the EEA Regulations and were applied by the tribunals in this case. The CJEU decisions are concerned with the test for acquisition of the relevant status, not with the approach to be adopted towards the justification of expulsion once that status is acquired.

[36]I nevertheless think it appropriate to look in greater detail at the way in which the tribunals dealt with the issue of justification for the respondent’s deportation, in order to show that the effect of the offence and the sentence of imprisonment on his integration within the United Kingdom were taken specifically into account. Examination of the reasoning will also help to explain an outcome that may at first sight seem surprising,

[37]The First-tier Tribunal pointed out that the respondent to the present appeal (the appellant before the tribunal) had resided in the United Kingdom well in excess of ten years, though the period had been interrupted after eight and a half years by his imprisonment. The tribunal referred to the possibility that the test of imperative grounds applied, which it considered to be an open question on the domestic authorities: of course, the tribunal’s attention had not been drawn to the recent judgment of the CJEU in MG which resolved the question. The tribunal proceeded, however, to determine the appeal on the agreed basis that serious grounds of public policy or public security had to be shown. Before doing so, it observed:

“50. For the avoidance of doubt, we would conclude that in this case we can find no evidence that he has ceased to be integrated in the UK, or that he has acquired new links abroad, or that he has been out of the United Kingdom for a period of two years or more. We conclude that his family life has continued uninterruptedly and that notwithstanding his period of imprisonment, he is de facto settled in the UK as he has been since 2002 ….”

[38]In considering whether there were serious grounds of public policy or public security to justify deportation, the tribunal took into account the seriousness of the offence itself but also noted inter alia that regulation 21(5)(e) requires that the personal conduct of the person concerned should represent “a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”, and that regulation 21(6) requires account to be taken of considerations such as age, state of health, family and economic situation, length of residence in the United Kingdom, social and cultural integration into the United Kingdom and the extent of links with country of origin.

[39]The tribunal considered that the question whether the respondent represented a genuine, present and sufficiently serious threat was the central issue. It examined a range of considerations in reaching a finding that the respondent was unlikely to reoffend; and in the light of that finding it concluded that the respondent did not represent such a threat and that the decision to deport him must for that reason fail.

[40]In case it was wrong on that point, the tribunal went on to consider the factors personal to the respondent which appeared to relate to the proportionality of the decision to deport him. It described it as beyond doubt that the respondent “has established a private and family life in the UK and to that extent is socially and culturally integrated into the United Kingdom in such a way that these links, including the very real probability of continued employment, have been maintained notwithstanding the period of imprisonment” (paragraph 56). On the other hand, it accepted that the family could relocate to Norway without much difficulty and that it would not be unreasonable to look to the family to migrate there together to re-establish their family life. Finally, it considered the issue of rehabilitation, whilst regarding the question as superfluous in view of its finding that the respondent was not a present threat. It concluded that he was “well advanced” in rehabilitation, that “there is a substantial degree of integration in the UK” and that it would be disproportionate to proceed to deportation in these circumstances (paragraph 59). It added that there might well be a deterioration in the respondent’s rehabilitation were he returned to Norway, because of difficulties in the job market there and other factors.

[41]On appeal to the Upper Tribunal, the Upper Tribunal Judge felt “bound to express my disquiet at the case of an individual who has committed so serious an offence as to merit a period of six years imprisonment being permitted to remain in the United Kingdom as a result of a finding that he did not present a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society” (paragraph 19). But he accepted that the finding of a low risk of reoffending was supported by the evidence before the First-tier Tribunal and that on the evidence before it the tribunal had reached a conclusion that was properly open to it. He therefore concluded that the tribunal had made no error in point of law.

[42]I agree with the Upper Tribunal Judge that the First-tier Tribunal did not err in law. So far as concerns the specific point raised by the second ground of appeal, I take the view that the First-tier Tribunal gave proper consideration, within the context of the criteria specified in regulation 21(5) and (6), to the issue of integration within the United Kingdom, including the effect of the respondent’s offence and imprisonment. I do not see how the approach contended for by Mr Kennelly by reference to the CJEU cases could realistically have led to a materially different analysis or have had a material effect on the tribunal’s conclusion. Accordingly, the Upper Tribunal was in my view correct not to interfere with the tribunal’s decision.

[43]In relation to this ground of appeal, as in relation to the first, I consider the correct interpretation of the Directive to be sufficiently clear without the need for a reference to the CJEU.

[44]If, contrary to the above, the CJEU cases require a different approach to be adopted when determining whether expulsion is justified by serious grounds of public policy or public security, the secondary question would again arise as to whether the tribunals could be said to have erred in law in failing to adopt that approach of their own motion and without any argument on the point from the parties, indeed without any reference to the cases by the parties. I have nothing to add to my discussion of that issue in the context of the first ground; and again I think it better not to express any concluded view on the point.

Conclusion

[45]For the reasons given, I would dismiss the appeal.

Lady Justice Gloster :

[46]I agree. Mr

Justice Baker :

[47]I also agree.