The Court of Appeal’s recent decisions in Warsame v The Secretary of State for the Home Department  EWCA Civ 16 and Secretary of State for the Home Department v Vassallo  EWCA Civ 13 considered the circumstances in which reliance can be placed upon enhanced levels of protection provided within the Citizen’s Directive in relation to expulsion of EEA nationals subject to deportation proceedings.
The central question in Vassallo was whether the Tribunal was correct in law to find that Mr Vassallo had acquired a right of permanent residence. The Court of Appeal having full regard to the Citizen’s Directive, relevant CJEU caselaw and the 2006 EEA Regulations, decided that having regard to the character of the EEA national’s residence in the UK, after a historical accrual of the requisite 5years, and despite Mr Vassalo having resided in the UK for over 50years, no right of permanent residence could be relied upon.
The appeal in Warsame raised the question of the extent to which a sentence of imprisonment legally interrupts a period of continuous residence which is required for the purpose of acquiring a right not to be deported from one EU Member State to another. The Secretary of State submitted that any sentence of imprisonment in the ten years before the deportation order must in principle prevent an applicant from accruing 10 years’ residence necessary for the grant of the enhanced protection. Mr Warsame was unrepresented in regards to his appeal and additionally did not attend his hearing and despite it being observed in the judgment that had he been present he could argue to the contrary, the Court of Appeal accepted the Secretary of State’s submissions and concluded following a very careful calculation that it could not be said that Mr Warsame had not been in prison in the 10 years preceding expulsion.
RELEVANT CASELAW CONSIDERED BY THE COURT OF APPEAL IN BOTH DECISIONS
- AA (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1249
- Case C-378/12, Onuekwere v Secretary of State for the Home Department
- Case C-400/12, Secretary of State for the Home Department v MG
- Case C-325/09, Secretary of State for Work and Pensions v Dias  ECR I-6387,  All ER (EC) 199
- Joined Cases C-147/11 and C-148/11, Secretary of State for Work and Pensions v Czop and Punakova
- Tsakouridis (European citizenship)  EUECJ C-145/09 (23 November 2010
- Joined Cases C-424/10 and C-425/10, Ziolkowski and Szeja v Land Berlin  ECR I-14051
- Case C-162/09, Secretary of State for Work and Pensions v Lassal  ECR I-9217,  All ER (EC) 1169,
(1)WARSAME v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2016) EWCA CIV 16
Mr Warsame, born in Somalia on 9th August 1988 became a citizen of the Netherlands after his family moved to Holland. He arrived in the United Kingdom at Easter time in 1998 when he was about 10 years old. In March 2007 he was given a 4 months sentence for breaching a community order imposed on 30th November 2006 for the offences of violent disorder and damage to property. He later committed the offences of falsely imprisoning a complainant, possessing an unlicensed firearm and two separate assaults occasioning actual bodily harm for which he was sentenced to a seven year term of imprisonment, on 27th October 2009. He had, by that stage, already spent 461 days in custody. On 19th January 2012 (while he was still in custody) the Secretary of State served notice of a decision to deport him pursuant to Regulation 21 of the 2006 regulations because she considered that he had not acquired the right of permanent residence in the United Kingdom and becausE she was satisfied that he would pose a genuine, present and immediate serious threat to the interests of public policy if he were to be allowed to remain in the United Kingdom.
The matter come up before the Court of Appeal following proceedings in the Tribunal.
Legal Considerations and Conclusions:
In Warsame the Court of Appeal considered that the decision of the Court of Justice of the European Union(CJEU), SSHD v MG (Portugal), was central to the appeal that was before them. One of the issues in MG before the CJEU was whether the ten year period of residence referred to in Article 28(3)(a) of the Directive 2004/38 must be calculated by counting backwards (from the decision ordering the expulsion of the person concerned) or forwards from the commencement of that person’s residence and whether that period must be continuous. The court answered by holding that the ten year period of residence necessary for the grant of the enhanced protection must in principle be continuous and must be calculated by counting back from the date of the decision ordering expulsion. The CJEU also concluded that Article 28(3)(a) of Directive 2004/38 must be interpreted as meaning that a period of imprisonment is, in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided for thereunder, even where the person concerned resided in the host member state for the ten years prior to imprisonment. However, the fact that that person resided in the host member state for the ten years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host member state have been broken.
In Warsame, it was submitted on behalf of the Secretary of State that FV (Italy), on which the second Upper Tribunal determination depended, was no longer good law. It was further submitted that any sentence of imprisonment in the ten years before the deportation order must in principle prevent an applicant from accruing 10 years’ residence. It was however accepted on behalf of the Secretary of State that there was a “maybe” category of cases under MG (Portugal) where a person has resided in the host state during the ten years prior to imprisonment, depending on an overall assessment of whether integrating links have been broken, and that in such cases it might be relevant to determine, by way of overall assessment, the degree of integration in the host member state or the extent to which links with the original member state have been broken. It was however submitted that in the case before the Court of Appeal there was no continuous 10 year period of residence before the first imprisonment in 2007 and that, if the Appellant wanted to show that there were separate periods of non-imprisonment which added up to 10 years, it would be up to him to show that, which Mr Warsame has not sought to do( as he was unrepresented but did not attend his hearing) .
Lord Justice Longmore, giving the leading judgement stated that he accepted the Secretary of State’s submissions and accepted that in the light of MG (Portugal) a decision based on FV (Italy) cannot be sustained. It could not be said that Mr Warsame had not been in prison in the 10 years preceding expulsion nor could it be said that there was a 10 year period of residence between Easter 1998 and March 2007 when he received the first sentence of imprisonment. Nor was there any finding from the Tribunal below that there were 10 qualifying, albeit non-continuous, years of residence. The Court of Appeal stated that the time between 10th April 1998 and 23rd July 2008 when Mr Warsame was remanded in custody in respect of the offences for which he was sentenced on 27th October 2009 was 10 years 3 months and 13 days. But the 2007 sentence was a 4 months sentence and, if that 4 months is subtracted from the above figure, it became a 9 year figure. There was thus no basis for saying that what was categorised as the “maybe” aspects of MG (Portugal) were applicable in the case.
(2)SECRETARY OF STATE FOR THE HOME DEPARTMENT v VASSALLO (2016) EWCA CIV13
Mr Vassallo, an Italian national was born on 1 January 1948. He came to the UK as a young child and had been resident here ever since, with only minor absences from the country. He entered the country lawfully in 1952 with his parents, Italian nationals who came to work here. He lived with them as a dependent relative from the time of his arrival until 1963. In 1968 he married a British citizen, by whom he had two children who are also British citizens. Since 1963, Mr Vassallo had been convicted in the United Kingdom on 31 separate occasions, in respect of 68 offences. They consisted mainly of dishonesty offences, including numerous offences of burglary, and resulted in custodial sentences ranging in length from 14 days to 54 months. He had also been the subject of convictions in Switzerland (in 1985, for burglary, criminal damage and a public order offence) and in Sweden (in 1994, for burglary). In May 2012 he was sentenced in the United Kingdom to 29 months’ imprisonment for a burglary committed at the home of an elderly couple. This led to a decision by the Secretary of State, on 19 August 2013, to make a deportation order against him under Regulation 19(3)(b) of the 2006 EEA Regulations on grounds of public policy or public security.
Mr Vassallo’s appeal against that decision was allowed by the First-tier Tribunal, which held that he had resided in the United Kingdom for a continuous period of ten years prior to the deportation decision and that he could not therefore be deported except on “imperative” grounds of public security, pursuant to Regulation 21(4) of the EEA Regulations; alternatively, that he had resided in the United Kingdom for a continuous period of five years and had thereby acquired a right of permanent residence pursuant to regulation 15, so that he could not be deported except on “serious” grounds of public policy or public security, pursuant to Regulation 21(3). The tribunal went on to hold that his deportation would not be in accordance with the principles in Regulation 21(5) and would be disproportionate. The Secretary of State appealed to the Upper Tribunal against that determination.
The Upper Tribunal found that the First-tier Tribunal had erred in relation to the issue of ten years’ continuous residence, in that the ten year period had to be counted back from the date of the relevant decision and was interrupted in this case by periods of imprisonment that broke the continuity of residence. But the Upper Tribunal upheld the finding of the First-tier Tribunal as to the acquisition of a right of permanent residence, albeit it did so by different reasoning. It concluded that, although the First-tier Tribunal had erred in law, the error was not material and the determination of that tribunal should therefore stand.
Court of Appeal’s observations:
The Court of Appeal initially noted at paragraph 2 of their judgement that it was common ground that, Mr Vassallo having originally been granted leave to land without restriction as a child pursuant to the Aliens Restriction Act 1914, he acquired indefinite leave to remain by operation of section 34(3) of the Immigration Act 1971 on its coming into force on 1 January 1973.
The Court of Appeal referred to the other findings of the Upper Tribunal in Mr Vassallo’s appeal whereby they went on to consider the extent to which the EEA Regulations in the context are in conformity with the Citizens’ Directive. The Upper Tribunal stated that there was no provision in the Citizens’ Directive equivalent to that in Paragraph 6(4)(b) of Schedule 4 of the EEA Regulations. The Upper Tribunal came to the view that it was inconsistent with the Citizens’ Directive which stated expressly in Article 16(4) that permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years. The Upper Tribunal stated that the EEA Regulations in this respect did not accurately transpose the Directive. The Upper Tribunal’s reasoning was noted by the Court of Appeal to lead to the finding that the First-tier Tribunal did not err in law in terms of its conclusion that Mr Vassallo had acquired a permanent right of residence on the basis of five years’ qualifying residence”.
The Court of Appeal also noted that the right of permanent residence under the Directive and the EEA Regulations had been considered by them recently in AA (Nigeria) v Secretary of State for the Home Department  EWCA Civ 1249. The Court of Appeal distinguished AA on the basis that that case was concerned with whether an admitted right of permanent residence had subsequently been lost, whereas the case before them was concerned with whether a right of permanent residence was acquired in the first place. It was observed however, that there was an inevitable degree of overlap between the judgment in that case and the present judgment in the description of the legislative framework and the relevant case-law.
At paragraph 26 of their decision, the Court of Appeal further noted that the wording of Paragraph 6 of Schedule 4 of the 2006 EEA Regulations is the result of amendments made by the Immigration (European Economic Area) (Amendment) Regulations 2012. It was observed that the explanatory note to the amending regulations states that the amendments were made in order to reflect the principles identified by the CJEU in the cases of Lassal, Dias and Ziolkowski.
Having referred to the CJEU cases Lassal and then Dias, the Court of Appeal stated at paragraph 17 of their decision that in the application of Article 16(4) by analogy, the CJEU 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. The CJEU spelled out the consequence 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. The Court of Appeal also stated that a further consequence, which the CJEU did not need to spell out for the purposes of the decision in Dias, must be that a period of more than two consecutive years of residence without meeting the relevant conditions would affect the acquisition of a right of permanent residence. It was noted that this was a key point for the purposes of the Vassallo appeal.
The Court of Appeal noted that the issues raised could be restated as follows:
- i) whether the period of more than five years continuous residence in the United Kingdom between 1952 and 1963 as a family member of EEA nationals in employment here can be taken into account in determining whether Mr Vassallo acquired a right of permanent residence;
- ii) if so, whether the character of his residence here thereafter, in the period from 1963 onwards, was such as to prevent the acquisition of a right of permanent residence; and
iii) whether the acquisition of a right of permanent residence was prevented by a period of more than two consecutive years’ absence from the United.
The First Issue Considered:
Lord Justice Richards giving the lead judgement, stated that he found it very difficult to accept that residence prior to the coming into force of the Treaty of Rome on 1 January 1958 can be taken into account for the purposes of EU legislation on free movement and residence of Union citizens. But that even if he was right about that, it did not provide an answer to the first issue, since it was common ground that Mr Vassallo had five years’ continuous residence between 1958 and 1963, after the Treaty of Rome had come into force. This was still prior to the accession of the United Kingdom to the Union, however Lord Justice Richards was inclined to accept submissions on behalf of Mr Vassallo that the reasoning in Ziolkowski applies as much to residence in a host state by a national of a Member State prior to the host state’s accession to the Union as it does to residence in a host Member State by a national of another state prior to that other state’s accession to the Union.
Lord Justice Richards noted that the remaining question was whether a period of residence could be taken into account if it was completed prior to the coming into force of any EU instrument governing the right of residence within the Union. He said that language used in Lassal and Dias suggested that, for residence to be taken into account, it had to meet the conditions of EU instruments governing entitlement to residence at the time. It needed to be borne in mind, however, that the factual situation with which the court was concerned in each of those cases was one in which (i) both states were Member States of the Union at all material times and (ii) entitlement to residence in the host Member State was governed at all material times by relevant EU instruments. The way in which the court expressed itself might therefore be attributable to the actual situation with which it was dealing. In Ziolkowski, by contrast, the court was concerned with a hypothetical situation, in which residence in the host state was not governed at the material time by EU law and it was necessary to determine whether the character of the residence was such that its effects should nevertheless be taken into account for the purposes of Article 16(1) of the Directive. In that context the court referred simply to residence completed “in compliance with the conditions laid down in Article 7(1) of Directive 2004/38”, a formulation which, does not depend on the face of it on whether any EU instruments governing the right of residence were in force at the time of the residence in question.
Whilst Lord justice Richard’s overall inclination on this issue was to favour the submissions advanced on behalf of the Secretary of State, he did not think that the answer could be said to be acte clair. Although he gave serious consideration to making a reference for a preliminary ruling he did not think that the issue had to be answered. This was because even on the assumption that Mr Vassallo’s residence in the United Kingdom between 1952 and 1963 could be taken into account in determining whether he acquired a right of permanent residence under Article 16(1) of the Directive, Lord Justice Richards was satisfied, that the character of his residence in the UK from 1963 onwards was such that, overall, he could not be said to have acquired a right of permanent residence. Lord Justice Richards did not consider that it could have any wider practical importance as the issue arose in the present appeal because of the unusual factual circumstances of the case, which took one back to a period over fifty years ago. Lord Justice Richard stated that the application of Article 16(1) of the Directive to residence prior to 1964, when the first of the relevant EU instruments came into force, was highly unlikely to be material in other cases.
The Second Issue Considered
Therefore without having to decide whether Mr Vassallo had five years’ continuous residence in the United Kingdom between 1952 and 1963 that was capable of counting towards the acquisition of a right of permanent residence, the question was whether the character of his residence in the United Kingdom thereafter, from 1963 onwards, was such as to prevent him from acquiring a right of permanent residence.
Lord Justice Richards stated that the Court’s reasoning in Ziolkowski was that residence must have been in compliance with the conditions in Article 7(1) of the Directive in order to be taken into account; and that fit with the approach in Lassal and Dias, where the relevant part of the court’s reasoning was based on whether residence was in accordance with the conditions of the earlier EU instruments. Had the court in Ziolkowski accepted that residence on the basis of national law alone would suffice, it would have expressed itself very differently.
Lord Justice Richards considered that similarly, when the court in Dias applied Article 16(4) by analogy to a period or residence that did not meet the conditions of the earlier EU instruments, it was in his view laying down a clear brightline rule: a period of less than two years’ residence of that character would not affect the acquisition of a right of permanent residence, but a period exceeding two years would do so. Lord Justice Richards stated that all brightline rules are capable of producing harsh results in individual cases, and although the result in Mr Vassalo’s case may seem particularly harsh, but that was not a reason for rejecting the court’s approach or straining to find a way round it. Therefore applying Dias, in Lord Justice Richard’s judgement, the character of Mr Vassallo’s residence in the period from 1963 onwards was plainly such as to prevent the acquisition of a right of permanent residence on the basis of the period between 1952 and 1963.
Accordingly, the Upper Tribunal was not only in error in holding that paragraph 6(4)(b) of schedule 4 to the EEA Regulations failed accurately to transpose the Directive, but also erred in upholding the First-tier Tribunal’s conclusion that Mr Vassallo had acquired a right of permanent residence. The Court of Appeal considered that even on the assumption that he had five years’ qualifying residence in the period from 1952 to 1963, the character of his residence thereafter was such as to prevent him acquiring a right of permanent residence, it was not open to the First-tier Tribunal, on the evidence before it, to find that a right of permanent residence had been acquired.
The Third Issue Considered:
In the light of his conclusion on the second issue, Lord Justice Richards stated that nothing turned on the third issue. It was clear that the tribunal rejected any suggestion that Mr Vassallo might have had more than two consecutive years absence from the United Kingdom since 1963.
As Lord Justice Richards concluded that the First-tier Tribunal was wrong to find that Mr Vassallo had acquired a right of permanent residence, it followed that it was wrong to proceed on the basis that deportation had to be justified by serious grounds of public policy or public security.
Whether any error of law was material:
Lord Justice Richards noted that the decision to deport Mr Vassallo was taken under regulation 19(3)(b) of the EEA Regulations but thought it arguable that he was removable under Regulation 19(3)(a) as a person who did not have a right to reside under the EEA Regulations. It was noted however that Regulation 19(5) provides in any event that a person must not be removed under regulation 19(3) if he has a right to remain in the United Kingdom by virtue of leave granted under the Immigration Act 1971 (as Mr Vassallo did having regard to paragraph 2 of the Court’s judgement) unless his removal was justified on grounds of public policy, public security or public health in accordance with regulation 21. Accordingly, the principles and considerations set out in regulation 21(5) and (6) remained applicable. It was noted that the requisite exercise remained the same as that carried out by the First-tier Tribunal, subject to the qualification that the grounds of public policy or public security relied on to justify removal do not have to be serious grounds.
It was noted that the First-tier Tribunal made a clear-cut finding that the requirement in regulation 21(5)(c), that “the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”, was not met and that, having regard to all the circumstances (including Mr Vassallo’s age, length of residence in the United Kingdom and extent of integration in the United Kingdom) his deportation would be disproportionate. The Upper Tribunal dismissed a challenge to the proportionality assessment, and the grounds of appeal to the Court of Appeal did not take issue with that aspect of the Upper Tribunal’s determination.
Lord Justice Richards saw sensible room for argument that the First-tier Tribunal’s specific finding in respect of regulation 21(5)(c) or its general conclusion on proportionality might have been different if the tribunal had approached the issues on the basis that deportation had to be justified on “grounds” of public policy or public security rather than on “serious grounds”. It followed that, although the Upper Tribunal was wrong to uphold the First-tier Tribunal’s finding that Mr Vassallo had acquired a right of permanent residence in the United Kingdom, that error was likewise not material. The Upper Tribunal was right to dismiss the appeal against the determination of the First-tier Tribunal, albeit it did so for the wrong reason.
The Court of Appeal concluded that whilst they would find in the Secretary of State’s favour on the central issue in the appeal, holding that the tribunals were wrong to conclude that Mr Vassallo acquired a right of permanent residence in the United Kingdom under regulation 15 of the EEA Regulations, they were satisfied that the error was not material to the outcome and that there is therefore no basis for the Court of Appeal to set aside the determination of the Upper Tribunal. The Secretary of State’s Appeal was dismissed.
In EEA deportation appeals as with deportation appeals in relation to foreign national criminals, the secretary of State’s practice of appealing almost every allowed deportation appeal by the First Tier Tribunal is well publicised as per Greenwood (No. 2) (para 398 considered)  UKUT 00629 (IAC) paragraph 18 and as such having regard to the persistent pursuance of proceedings in both Vassallo and Warsame by the Secretary of State, this is not surprising. What is however surprising is that having regard to the fact that the Court of Appeal noted from the outset at paragraph 2 of their judgement that it was common ground that Mr Vassallo having originally been granted leave to land without restriction as a child pursuant to the Aliens Restriction Act 1914, had acquired indefinite leave to remain by operation of section 34(3) of the Immigration Act 1971 on its coming into force on 1 January 1973, that this appeal was allowed to proceed as far as it did and in the manner in which it did, more so where the Court of Appeal had noted the unusual set of factual circumstances of the case which were unlikely to come before a Court again.