CC (Portugal) and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Longmore,Lord Justice Stanley Burnton |
| Judgment Date | 14 December 2010 |
| Neutral Citation | [2010] EWCA Civ 1406 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2009/2240 + C5/2008/1219 |
| Date | 14 December 2010 |
[2010] EWCA Civ 1406
Before: Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Longmore
and
Lord Justice Stanley Burnton
Case No: C5/2009/2240 + C5/2008/1219
(Single Judge) Ref No: 1A088342007 + IA069082005
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
(1) Mr Richard Drabble QC and Mr Mikhil Karnik (instructed by Messrs Paragon Law) for the Appellant
Mr Alan Payne (instructed by Treasury Solicitor) for the Respondent
(2) Mr Alan Payne (instructed by Treasury Solicitor) for the Appellant
Mr Omar did not attend and was not represented
Hearing date: 16 November 2010
Lord Justice Maurice Kay:
These two appeals were listed and heard together because it had been considered that they each raised the same issue, namely the extent to which time spent in prison may count towards the qualifying period for permanent residence under regulation 15(1)(a) of the European Economic Area Regulations 2006 (the Regulations). At the hearing it became apparent that the appeal in the case of Omar Abdullah Omar turns on a different point. Nevertheless, they may still be dealt with in a single judgment. They are both concerned with the power to deport persons whose nationality brings them within the Regulations and Directive 2004/38/EC (the Citizens' Directive) to which the Regulations owe their origin.
The Regulations
Regulation 15 provides:
“(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).”
Regulation 19(3)(b) provides:
“(3) Subject to paragraph (4) and (5), a person who has been admitted to, or acquired a right of residence in, the United Kingdom under these Regulations may be removed from the United Kingdom if –
…
(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.”
Regulation 21 then provides a decision-making framework for “relevant decisions”, that is those taken on grounds of public policy, public security or public health. It includes enhanced protection depending on the length of residence. It also prescribes applicable criteria. For present purposes, the material parts of regulation 21 are as follows:
“(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 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.”
Thus the historic power to deport a foreign national on the “conducive to the public good” ground (subject to general ECHR protection) is significantly circumscribed in relation to EEA nationals for whom a distinct code is established, with protection that is enhanced upon this acquisition of a permanent right of residence after five years (“serious grounds of public policy or public security”) and is further enhanced after continuous residence of ten years (“imperative grounds of public security”).
The domestic authorities
The extent to which time spent serving a sentence of imprisonment in this country may count towards the qualifying periods of five years and ten years is already the subject of domestic jurisprudence. It has sought to construe the Regulations by reference to the Citizens' Directive and to inform a purposive approach by considering its recitals. One of the features of the Citizens' Directive is that, when providing for a right of permanent residence after five years, it deploys the language of “resided legally” (Article 16) but when providing for the more enhanced protection based on ten years' residence, the word “legally” is omitted (Article 28(3)).
Nevertheless, in HR(Portugal) v Secretary of State for the Home Department [2009] EWCA Civ 371, [2010] 1 WLR 158, it was held that the same requirement of lawfulness governs both the 5 year and the 10 year qualifying periods. This assimilation is based on the recitals to the Citizens' Directive which emphasise that the protection applies to persons who have “availed themselves of the rights and freedoms conferred on them by the Treaty” and “have become genuinely integrated into the host Member State” (recital 23); and “the greater the degree of integration of Union citizens and their family members in the Host Member State, the greater the degree of protection against expulsion should be” (recital 24). Stanley Burnton LJ said (at paragraph 21):
“… These recitals show that what was intended was a progression in the restrictions on expulsion, depending on the degree of integration of a person in the country in which he is present as demonstrated by the duration of his residence in the exercise of Treaty rights.”
Thus, “legally” means “in the exercise of the rights and freedoms conferred by the Treaty”.
The appellant in HR(Portugal) had been resident in this country for more than 10 years but there was no evidence that he had ever had lawful employment. He had served a number of custodial sentences. Stanley Burnton LJ said (at paragraph 23) that an EEA national who, following conviction, “is detained for a significant period in prison … is not resident in this country for the purposes of Article 28(3)”. Elias and Sedley LJJ expressed agreement with that reasoning, albeit Sedley LJ raised questions about the situation where the person is acquitted following a lengthy remand in custody or on appeal.
Of the other domestic authorities referred to in submissions, I should refer to Bulale v Secretary of State for the Home Department [2008] EWCA Civ 806, [2009] QB 536, in which Buxton LJ said, obiter, (at paragraph 9):
“It is difficult to think that the process of integration can take place while a person is living outside normal society in the host state, not because of illness or accident, but because he has chosen to breach the societal norms of that state.”
On any view, these authorities are unhelpful to Mr Carvalho (and, indeed, Mr Omar), but his appeal seeks to circumnavigate them.
Cesar Carvalho
Mr Carvalho was born on 15 November 1974. He is a citizen of Portugal. He claims to have arrived in the United Kingdom in 2002. There is documentary evidence that he had employment here between May 2004 and September 2006. He has incurred criminal convictions on eleven occasions since 2003. The early convictions included offences of fraud, theft, public order, possession of Class A drugs and possession of an offensive weapon. These were met with a series of non-custodial sentences. However, on 26 July 2006 he was convicted of sexual assault on a female, exposure and common assault for which he was later sentenced to 22 months imprisonment and placed on the Sex Offenders' Register for ten years.
By a decision dated 20 September 2007, which was about four weeks before Mr Carvalho's expected release from prison, the Secretary of State notified him that he was to be deported. The Secretary of State dealt with the matter on the basis that Mr Carvalho had not acquired a right of permanent residence as a result of residence for a continuous period of five years. Two reasons were given for this aspect of the decision. The first was that the relevant five year period had to be calculated back from 20 September 2007 and the Secretary of State was not satisfied that Mr Carvalho had entered this country on or before 20 September 2002 as he was somewhat vague about the date of his...
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