The Home Office have recently been on a downward streak  in  the Court of Appeal  in terms of issues in relation  to EEA law and in particular EEA deportations.

Read my post regarding the recent judgments from the Court of Appeal on the issue in the cases of:

• Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198
• Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245
• AA (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 1249

In Agho v The Secretary of State for the Home Department [2015] EWCA Civ 1198, in a case where the Secretary of State of  State made allegations of a sham marriage, the Court of Appeal  stated that the  burden of proof  was on  the  Secretary of State, which she had failed to discharge. Further, the Court of Appeal, in allowing the Appellant’s appeal, was  also critical of the evidence relied upon by the  Secretary of State which was   noted to be full of obscurities that left  open the risk of confusion.

In Secretary of State for the Home Department v Straszewski [2015] EWCA Civ 1245,  within the subject matter of deportation,   the Court of Appeal  sought to remind  the Secretary of State  of  State of the   fundamental  basic  principles   of  EEA law that apply  when seeking to  deport EEA nationals , in particular  those who have acquired permanent residence in the UK.  The Court  essentially  considered the issue of   whether wider factors, such as the public interest in deterrence and the need to demonstrate public revulsion at the offender’s conduct, are factors that can properly be taken into account when deciding whether the removal of an EEA national who has acquired a permanent right of residence is justified on serious grounds of public policy or public security under Regulation  21 of the EEA Regulations.  The Court of Appeal decided that generally  they were not.  The  Court also observed   that in EEA deportation appeals, the burden lies upon the  Secretary of State.

The Secretary of State recently sought to argue before the Court of Appeal  that a significant factor in weakening the integration link between the person concerned and the host Member State is a period of imprisonment such that  a previously acquired  right of permanent  residence can be lost.  That   argument  has been  roundly rejected by the Court of Appeal in AA (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 1249. The Secretary of State sought to take advantage of  a gap in interpretation, seemingly  left open by  CJEU  caselaw,  in cases such C-378/12, Onuekwere v Secretary of State for the Home Department. The Court  there had held that  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 Citizen’s Directive.  The Court  stated within paragraphs   24 to 26 of their judgement  that  Recital 17 in the preamble to Directive 2004/38 states that  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. It was noted that  EU legislature accordingly made the acquisition of the right of permanent residence subject to the integration of the citizen of the Union in the host Member State. Such integration, which is a precondition of the acquisition of the right of permanent residence laid down in  the 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  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. The  Court  in Onuekwere  went further and stated that 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 of the right of permanent residence for the purposes of Directive 2004/38 would clearly be contrary to the aim pursued by that Directive in establishing that right of residence.

The problem however  is that in seeking to advance her arguments,  the Secretary of State  sought to misconstrue the relevant law and this was rightly rejected by the Court of Appeal.

RELEVANT PROVISIONS

The Citizens Directive 2004/38/EC provides:

“Preamble (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.

Article 16

General rule for Union citizens and their family members

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 twelve 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.

Article 27

General principles

1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.
2. 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.The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
3. In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned on its territory or from the date of reporting his/her presence within the territory, as provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months.
4. The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy, public security, or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.

Article 28

Protection against expulsion

1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:a) have resided in the host Member State for the previous ten years; or (b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989”.

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.

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.

RELEVANT CASE LAW CONSIDERED BY THE COURT OF APPEAL

• Case C-162/09, Secretary of State for Work and Pensions v Lassal [2010] ECR I-9217, [2011] All ER (EC) 1169;
• C-325/09, Secretary of State for Work and Pensions v Dias [2011] ECR I-6387, [2012] All ER (EC) 199;
• Case C-378/12, Onuekwere v Secretary of State for the Home Department (judgment of 16 January 2014);
• Case C-400/12, Secretary of State for the Home Department v MG

SUMMARY OF FACTS

The Respondent, a Norwegian national had  acquired a permanent  right to reside in the UK by  virtue of a five year period of continuous residence here between 2004 and 2009. He was convicted in August 2010 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. The Secretary of State considered that the deportation was justified on serious grounds of public policy. The Respondent’s appeal was allowed. The Secretary  of State  appealed to the Upper Tribunal. The Upper Tribunal found no  error  of law in the  First Tier Tribunal’s decision.

The Secretary of State was granted permission to appeal by the Court of Appeal, however permission was granted on grounds that had not been raised either before the First-tier Tribunal or on the appeal to the Upper Tribunal.

SECRETARY OF  STATE ‘S POSITION

The arguments on behalf of the  Secretary  of State were:

1. The tribunals erred in failing to consider whether the Respondent lost his right of permanent residence by reason of his offence and imprisonment. 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. But the link can be loosened in other circumstances too. A significant factor in weakening the integration link between the person concerned and the host Member State is a period of imprisonment. It was implicit in relevant ECJ 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. 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. If the right of permanent residence was lost, the Secretary of State 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) of the EEA Regulations but that it would not be necessary to demonstrate serious grounds.
2. Alternatively, 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. Reliance was placed on the CJEU case-law as showing that imprisonment may diminish the qualitative aspects of integration in the host Member State. Stress was 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. Reference was also made 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.

 COURT OF APPEAL’S CONSIDERATION AND CONCLUSIONS  ON THE FIRST ARGUMENT

In the Court’s judgment,  the Secretary of State’s  argument involved a misapplication of the CJEU case-law and was  unfounded. The Court of Appeal stated that  case-law relied on was  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 was  not directed at the loss of the right of permanent residence once it is acquired.

The Court of State considered that 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  was  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” , however 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)”, 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.

The Court of Appeal further viewed that the Secretary of State’s argument was  contrary to the scheme of the Directive. 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. 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. The Court of Appeal  stated that 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.

Nor, in the Court’s 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.

The Court of Appeal stated that 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, stated the Court of Appeal,  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.

Thus, stated the Court,  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 did not warrant that result and should not be read across, out of context, as producing such a result.

The Court of Appeal considered that the correct interpretation of the Directive was sufficiently clear without the need for a reference.

COURT OF APPEAL’S CONSIDERATION AND CONCLUSIONS  ON THE SECOND ARGUMENT

The Court of Appeal stated that the  short answer to the second  point  submitted on behalf of the Secretary of State  was  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. The CJEU decisions were 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.

The Court of Appeal stated that 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. 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. It was noted that 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 had established a private and family life in the UK and to that extent was  socially and culturally integrated into the United Kingdom in such a way that these links, including the very real probability of continued employment, had been maintained notwithstanding the period of imprisonment. Further the Tribunal considered the issue of rehabilitation. It concluded that he was well advanced in rehabilitation, that  there was  a substantial degree of integration in the UK and that it would be disproportionate to proceed to deportation in these circumstances. The Upper Tribunal Judge had 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..

The Court of Appeal  therefore  agreeD with the Upper Tribunal Judge that the First-tier Tribunal did not err in law. The First-tier Tribunal gave proper consideration, within the context of the criteria specified in Regulation 21(5) and (6) of the 2006 Regulations  to the issue of integration within the United Kingdom, including the effect of the Respondent’s offence and imprisonment.  The  approach contended for by  the Secretary of State by reference to the CJEU cases could  not have realistically have led to a materially different analysis or have had a material effect on the Tribunal’s conclusion. Accordingly, the Upper Tribunal was correct not to interfere with the Tribunal’s decision

CONCLUSION

The Secretary of State sought to argue legal points that were never put before the First Tier Tribunal or Upper Tier Tribunal ie that the Tribunal erred in law, 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. There was a point to all this.   The  litigation  was  intended purely to knock the Appellant off the perch of  enhanced   level of protection afforded by his  acquisition of permanent  residence. If the Secretary  of  State  had succeeded, then that success would  have meant  ( absent an appeal to the Supreme  Court or a reference  to the ECJ) that  even  those EEA nationals  subject to deportation  but  with the highest   level of protection  having resided here for  more than 10years , would be  left most vulnerable to deportation by having to rely upon the basic  level of protection.