Ahmed Warsame v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore,Lord Justice Lewison,Lord Justice Kitchin |
| Judgment Date | 21 January 2016 |
| Neutral Citation | [2016] EWCA Civ 16 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 January 2016 |
| Docket Number | Case No: C5/2014/2340 |
[2016] EWCA Civ 16
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
The Right Honourable Lord Justice Longmore
The Right Honourable Lord Justice Lewison
and
The Right Honourable Lord Justice Kitchin
Case No: C5/2014/2340
Mr Paul Greatorex (instructed by Government Legal Department) for the Appellant
The Respondent was not represented and did not appear
Hearing dates: 13 th January 2016
Introduction
This appeal raises 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. Chapter II of the Citizens' Directive (2004/38/EC) provides for rights of exit and entry from one EU country to another. Chapter III provides for rights of residence for e.g. workers and those with sufficient resources not to become a burden on the host member state, provided relevant conditions are met. Chapter IV confers a right of permanent residence on EU citizens "who have resided legally for a continuous period of five years in the host member state". This refers to a period of residence which complies with the conditions laid down in the directive in particular those set out in Chapter III, see 62010CJ0424">Ziolkowski v Land Berlin C-424 and 425/10 [2013] 3 CMLR 37 at para 46. Chapter VI provides for restrictions on the right of residence on grounds of, inter alia, public policy and public security. By Articles 28.2 and 3, the host Member State may not expel a Union Citizen who has the right of permanent residence except on "serious" grounds of public policy or public security and, if he has resided for as long as the previous 10 years before the expulsion decision, only on "imperative" grounds of public security.
The Directive is transposed into English law by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) ("the 2006 Regulations"). Regulations 19(3) and 21 relevantly provide:-
"19(3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if —
a) that person does not have or ceases to have a right to reside under these Regulations;
b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21; or
c) the Secretary of State has decided that the person's removal is justified on grounds of abuse of rights in accordance with regulation 21B(2).
…
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."
The Facts
Mr Warsame was born in Somalia on 9 th August 1988 but 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 30 th November 2006 for the offences of violent disorder and damage to property. He later committed the much more serious 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 27 th October 2009. He had, by that stage, already spent 461 days in custody. On 19 th 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, as she put it in her decision notice 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. She also ordered that he be detained because he was likely to abscond, a risk that was in due course to occur.
Mr Warsame appealed against the deportation decision and a First-Tier Tribunal allowed his appeal because, although he had not resided in the United Kingdom for 10 consecutive years before his first sentence in March 2007, they considered that he had a permanent right of residence in the United Kingdom, having resided here for 5 years before that first sentence, and that there were no serious grounds of public policy or public security which would justify his deportation. Permission was given to the Secretary of State to appeal this decision since the First-Tier Tribunal had failed to consider the matters set out in sub-section (5) of regulation 21. The Upper Tribunal reversed the First-Tier Tribunal because they found that failure to constitute an error of law. They remade the decision and found (para 15) that Mr Warsame was "a present and sufficiently serious threat affecting a fundamental interest...
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Upper Tribunal (Immigration and asylum chamber), 2016-10-04, DA/00606/2015
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Upper Tribunal (Immigration and asylum chamber), 2017-06-01, DA/00450/2016
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