LG and CC (EEA Regs: residence; imprisonment; removal)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Carnwath,Allen,P R Lane |
| Judgment Date | 23 April 2009 |
| Neutral Citation | [2009] UKAIT 24 |
| Date | 23 April 2009 |
| Court | Asylum and Immigration Tribunal |
[2009] UKAIT 24
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Lord Justice Carnwath, SENIOR PRESIDENT
SENIOR IMMIGRATION JUDGE Allen
SENIOR IMMIGRATION JUDGE P R Lane
For Appellant LG: Ms C. Hulse, Counsel, instructed by Messrs Duncan Moghal
For Appellant CC: Mr M. Karnik, Counsel, instructed by Messrs Paragon Law
For the Secretary of State: Mr T. Eicke, Counsel, instructed by the Treasury Solicitor
LG and CC (EEA Regs: residence; imprisonment; removal) Italy
Time spent in prison does not count towards the acquisition of the level of protection afforded to an EEA national by regulation 21(4) of the Immigration (European Economic Area) Regulations 2006, even for a person who has a right of permanent residence in the United Kingdom.
A clear distinction is required to be drawn between the three levels of protection against removal introduced in the 2006 Regulations, each level being intended to be more stringent and narrower than the immediately lower test.
LG and CC are EEA nationals who the Secretary of State has decided should be deported from the United Kingdom. Their cases come before this Tribunal on the reconsideration of earlier determinations to dismiss their respective appeals against the Secretary of State's decisions.
Both of the appeals raise issues concerning the interpretation and application of Directive 2004/38/EC of 29 April 2004 (“the Directive”) and the Immigration (European Economic Area) Regulations 2006 (“the Regulations”): specifically, what constitutes residence for the purpose of establishing a right of permanent residence in a host Member State (here, the United Kingdom); what constitutes residence for the purpose of being able to invoke the protection against expulsion provided by regulation 21(4)(a); and generally as to the correct means of undertaking the procedures laid down in regulation 21 in the case of the expulsion of EEA nationals. We have set out the relevant parts of the Directive and the Regulations in the Appendix to this determination. To avoid duplication, we have found it convenient to refer generally to the provisions and terminology of the Regulations, except where the nature of the discussion focuses attention on the Directive.
The appeal in the case of LG was remitted to this Tribunal by the Court of Appeal in LG (Italy) v Secretary of State [2008] EWCA Civ 190. The issues before the Court of Appeal were first, whether, on the basis that, as found by the AIT, LG satisfied the ten year residence criterion under the 2006 Regulations, the AIT had been entitled in law to hold that there were ‘imperative grounds’ of public security for removing him; and secondly under a respondent's notice, whether the AIT erred in law in holding that LG satisfied the ten year residence criterion in view of the fact that for the preceding seven years he had been in prison.
At paragraph 14 Carnwath LJ noted the following:
“14. As appears from the emphasised words above in Regulation 21(1)-(4), the 2006 Regulations have introduced a new hierarchy of levels of protection, based on criteria of increasing stringency:
(1) A general criterion that removal may be justified ‘on the grounds of public policy, public security or public health’;
(2) A more specific criterion, applicable to those with permanent rights of residence, that they may not be removed ‘except on serious grounds of public policy or public security’;
(3) The most stringent criterion, applicable to a person ‘who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision’, who may not be removed except on ‘imperative grounds of public security’.
The Regulations provide no further guidance on the meaning of these expressions.”
At paragraph 31, Carnwath LJ stated that on the basis of the relatively limited arguments that had been heard he would not feel confident in attempting to lay down any definitive guidance and would not in any event wish to do so until the Secretary of State had reached a more settled view both of the legal interpretation of the relevant provisions and the policy considerations governing their application in practice. The case was remitted to enable that to happen. CC's case has been listed at the same hearing, since it raises issues which overlap.
Some further insight into the legislative history of Article 28 of the Directive is to be found in the Common Position (EC) No 6/2004 adopted by the Council on 5 December 2003. There was a difference of view between the Council and the Commission as to the level of protection that was appropriate, as appears from the following comment:-
“ Article 8: The Council is almost unanimously against the absolute protection against expulsion, although it has accepted an increased protection for Union citizens who have been residing for a long period in the host Member State. After the acquisition of the right of permanent residence, Union citizens may be expelled only on serious grounds of public policy or public security.”
The background was explained by the Commission in its communication to the European Parliament of 30 December 2003:-
“ Article 28(2): The Member States were almost unanimously opposed to absolute protection against expulsion for Union citizens and the members of their families who have acquired the right of permanent residence in the host Member State. However, they did agree to increased protection for Union citizens who have lived for a number of years in the host Member State. Consequently the compromise included in the common position takes the form of increased protection depending on the length of residence in the territory of the host Member State.
Once they have acquired the right of permanent residence, citizens of the Union and the members of their families may be expelled only for particularly serious reasons of public policy or public security.
After ten years of residence in the host Member State, Union citizens can be expelled only for overriding public security reasons….”
The fact that the final text represented a compromise may help to explain some of the difficulties in the drafting, but provides little help in resolving them.
We have been referred to the Commission's 2008 report to the Council and Parliament on the working of the Directive, to which we will return below (paragraph 53). At this stage, we note the following comment:-
“Member States remain competent to define and modify the notions of public policy and public security. However, implementation may not trivialise the difference between the scope of Article 28(2) and Article 28(3), or extend the concept of public security to measures which should be covered by public policy.”
LG
LG is a citizen of Italy who was born on 18 October 1969. He has lived in the United Kingdom since at least 1987. On 9 October 2001 LG was convicted at Leicester Crown Court of robbery and grievous bodily harm with intent. He was sentenced to twelve years' imprisonment, reduced on appeal to a term of nine years. On 10 November 2005 the Secretary of State decided that, in view of this conviction, it was conducive to the public good to make a deportation order in respect of LG. The basic facts of these offences were that, in the early hours of Saturday 29 January 2000, LG had followed a 66 year old retired man and attacked him from behind, inflicting serious head and facial injuries, including a fracture of the skull. LG robbed the victim of his wallet, leaving him lying in the road.
The sentencing judge described LG's offences as “a brutal, senseless, cowardly attack upon an elderly gentleman” and told the appellant that “you are a thoroughly dangerous man…I don't think for offences of robbery of this type it gets much worse”.
LG's criminal history had begun in August 1996, when he was convicted of obtaining property by deception and ordered to pay compensation. The following month, he was convicted on two counts of obtaining services by deception and ordered to pay a fine, compensation and costs. A month after this, he was convicted of two counts of obtaining property by deception, for which he was ordered to pay a fine and compensation. In August 1997, LG was convicted on two counts of theft and one count of robbery, receiving a sentence of three years and 28 days' imprisonment.
LG appealed against the decision to make a deportation order. His appeal was heard at Newport on 15 December 2005 by the Tribunal (“the first Tribunal”). His appeal was dismissed. Reconsideration of the first Tribunal's decision was ordered under section 103A of the Nationality, Immigration and Asylum Act 2002 and, on 8 December 2006, it was found that the first Tribunal had materially erred in law. The reconsideration hearing was adjourned in order for findings of fact to be made and a fresh decision taken, whether to allow or dismiss the appeal.
The adjourned hearing took place at Newport on 5 January 2007 before an Immigration Judge and a non-legal member (“the second Tribunal”). In the determination which followed that hearing, the second Tribunal accepted “on the balance of the evidence” that LG had had ten years' continuous residence in the United Kingdom for the purposes of the appeal (paragraph 56). Accordingly, pursuant to regulation 21(4)(a), the decision that the appellant should be deported could not be taken “except on imperative grounds of public security”.
At paragraph 67, the second Tribunal found that LG:
“… has been convicted of grave offences and we find that the appellant has not shown that he does not pose a risk of further harm to the public by way of further offending and, moreover, that the evidence before us suggests...
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