HR (Portugal) v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Stanley Burnton,Lord Justice Sedley
Judgment Date05 May 2009
Neutral Citation[2009] EWCA Civ 371
Date05 May 2009
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C5/2008/2027

[2009] EWCA Civ 371

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL

Immigration Judge Petherbridge and Mr J H Eames

Before: Lord Justice Sedley

Lord Justice Stanley Burnton and

Lord Justice Elias

Case No: C5/2008/2027

1A/109702006

Between
HR (Portugal)
Appellant
and
The Secretary of State for The Home Office
Respondent

Becket Bedford (instructed by Sultan Lloyd) for the Appellant

Carine Patry Hoskins (instructed by Treasury Solicitor) for the Respondent

Hearing date: 31 March 2009

Lord Justice Stanley Burnton

Lord Justice Stanley Burnton:

Introduction

1

This is an appeal by HR, a national of Portugal, against the determination of the AIT promulgated on 3 July 2008, made on a second stage reconsideration, rejecting his appeal against the Secretary of State's decision to make a deportation order. It raises an important issue as to the effect of regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) which transposes into domestic law Directive 2004/58/EC of the European Parliament and of the Council of 29 April 2004 “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 Citizenship Directive”, or simply “the Directive”). Put shortly, the issue is whether the period during which an EEA national is serving a sentence of imprisonment in this country is to be included when calculating whether he has resided in the United Kingdom for a continuous period of at least 10 years prior to the decision to deport him so as to preclude his being deported in the absence of “imperative grounds of public security”.

The facts in outline

2

The Appellant is a citizen of Portugal and is aged 31. He claimed to have come to this country in 1992, but was disbelieved by the Tribunal. He had obtained a national insurance number in October 1997, and his proven presence in this country dates from then. There is no evidence that he has ever worked in the United Kingdom. He has a bad criminal record. In March 1999, for two offences of robbery he was sentenced to 18 months' detention and 12 months' detention concurrent in a Younger Offenders' Institution. In June 2003, he was convicted of failing to stop after an accident, failing to report an accident, driving without a licence and using a vehicle while uninsured. A community punishment order was imposed. He breached that order and was fined. In May 2005 he was convicted of burglary and theft in a dwelling. He was given a drug treatment and testing order, which he did not satisfactorily complete, because in December 2005 the sentence was varied to one of 15 months' imprisonment. In November 2004, he was convicted of dangerous driving and received another drug treatment and testing order, which like the first was varied in December 2005, in this case to a sentence of three months' imprisonment. In August 2005, he was arrested for being in possession of cannabis and a 7-inch lock knife. He was convicted by magistrates of possession of the cannabis and having an Article with a blade or which was sharply pointed in a public place (2 counts) and committed to Aylesbury Crown Court for sentence. On 9 December 2005 he was sentenced to 2 years and nine months' imprisonment. He was released on 23 February 2007 on restrictions. On 25 May 2007, whilst still on restriction, he committed another burglary. He was convicted on 30 July 2007 and received a sentence of two years and four months' imprisonment.

3

The Secretary of State's decision letter of 5 February 2008 accepted that HR had been resident in this country for 10 years but stated that his deportation was justified on imperative grounds of public security as required by regulation 21(4)(a). HR appealed. His appeal was heard in December 2006 by Immigration Judge Chohan and Professor R H Taylor. By their determination promulgated on 8 January 2007 they dismissed his appeal. However, they did not consider the requirements of regulation 21 or future risk. As a result, reconsideration was ordered. The grounds included his claim under Article 8 of the European Convention on Human Rights: although he had a partner and daughter in this country, the Tribunal had held that his rights under it were not engaged.

4

The second stage reconsideration was heard by Immigration Judge Petherbridge and Mr J H Eames, whose decision is the subject of this appeal. They held that his time in prison cannot count as “residence” for the purposes of regulation 21; that he had acquired a permanent right of residence under regulation 15, and therefore could not be deported except on serious grounds of public policy or public security. They held that because his time in prison did not count it was unnecessary for the Secretary of State to show that his deportation was justified by imperative grounds of public security as required by regulation 21(4); and that his removal was justified by serious grounds of public policy or public security as required by regulation 21(3). The Tribunal did not accept that he had ever worked in this country. His claim under Article 8 was rejected. His appeal was therefore dismissed.

The issue before the Court

5

The only issue before this Court is whether the Tribunal erred in holding that HR's periods in custody did not count for the purposes of determining whether he had been resident for 10 years for the purposes of regulation 21(4)(a). If they did count, his appeal would have to be allowed, since the Tribunal did not find that the Secretary of State had established that there were imperative grounds of public security justifying his deportation. No issue was raised before the Tribunal, or before this Court, as to whether a period of residence in this country before the coming into force of the 2006 Regulations counts for the purposes of regulation 21, and I express no view on it.

The applicable legislative provisions

6

Regulation 11 of the 2006 Regulations confers a right of admission to the United Kingdom on EEA nationals and their family members, subject to production of specified documents. This appeal is not concerned with family members, and I shall therefore omit reference to the provisions of the Regulations concerning them. Regulation 13 confers on an EEA national a right of residence for a period not exceeding 3 months. Regulation 14 confers an extended right of residence on qualified persons and their family members. An extended right of residence is a right to reside in the UK for so long as the person remains a qualified person. Qualified persons are defined by regulation 6(1):

“qualified person” means a person who is an EEA national and in the United Kingdom as—

(a) a jobseeker;

(b) a worker;

(c) a self-employed person;

(d) a self-sufficient person; or

(e) a student.

Paragraphs (2) to (4) of regulation 6 qualify this definition, but they are not relevant for present purposes.

7

Regulation 15 relates to the acquisition of a permanent right of residence; I have again omitted provisions relating to family members:

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;

(b) …

(c) a worker or self-employed person who has ceased activity;

(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).

8

The relevant parts of regulation 19 are paragraphs (1) and (3):

Exclusion and removal from the United Kingdom

19.- (1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21.

….

(3) Subject to paragraphs (4) and (5), 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.

9

Regulation 21 is as follows:

Decisions taken on public policy, public security and public health grounds

21. (1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.

(2) A relevant decision may not be taken to serve economic ends.

(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; or

(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in...

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