MG (Prison - Article 28(3)(A) of Citizens Directive) Portugal

JurisdictionUK Non-devolved
JudgeStorey,Allen,Storey UTJ,Allen UTJ
Judgment Date12 August 2014
Neutral Citation[2014] UKUT 392 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date12 August 2014

[2014] UKUT 392 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE Storey

UPPER TRIBUNAL JUDGE Allen

Between
The Secretary of State for the Home Department
Appellant
and
MG [Anonymity Order Maintained]
Respondent
Representation:

For the Appellant: Mr R Palmer instructed by Treasury Solicitors

For the Respondent: Ms L Hirst instructed by the Aire Centre

MG (prison-Article 28(3) (a) of Citizens Directive) Portugal

  • (1) Article 28(3)(a) of Directive 2004/38/EC contains the requirement that for those who have resided in the host member state for the previous 10 years, an expulsion decision made against them must be based upon imperative grounds of public security.

  • (2) There is a tension in the judgment of the Court of Justice of the European Communities in Case C-400/12 Secretary of State v MG in respect of the meaning of the “enhanced protection” provision.

  • (3) The judgment should be understood as meaning that a period of imprisonment during those 10 years does not necessarily prevent a person from qualifying for enhanced protection if that person is sufficiently integrated. However, according to the same judgment, a period of imprisonment must have a negative impact in so far as establishing integration is concerned.

DETERMINATION AND REASONS
1

By a decision of 24 August 2012 this Tribunal requested a preliminary ruling from the Court of Justice of the European Union (CJEU) on several questions relating to the proper interpretation of Article 28(3)(a) of Directive 2004/38/EC (hereafter “the Citizens Directive”). This decision was reported as MG (EU deportation - Article 28(3) - imprisonment) Portugal [2012] UKUT 268 (IAC). Our questions arose as a result of the following events: (i) on 8 July 2010 the appellant (hereafter Secretary of State for the Home Department or SSHD) had refused the application of the respondent, MG (hereafter the claimant), who is an EEA national, for a permanent residence card and, in light of her conviction on one count of cruelty and three counts of assault against one of her own children, had ordered her to be deported on grounds of public policy and public security pursuant to regulation 21 of the Immigration (European Economic Area) Regulations 2006 (hereafter “the 2006 Regulations”) (which implement this Directive); (ii) her subsequent appeal to the First-tier Tribunal was successful; (iii) the SSHD had then been granted permission to appeal to the Upper Tribunal; (iv) the Upper Tribunal found that the First-tier Tribunal had erred in law and set its decision aside; (v) the Upper Tribunal concluded that it could not proceed to re-make the decision without a ruling from the CJEU. On 16 January 2014 the CJEU delivered its rulings both in this case, Case C-400/12, Secretary of State v MG and in Case C-387/12, Onuekwere v SSHD. Having now received answers from the CJEU, we are in the position of being able to complete our hearing in order to re-make the decision. It is as well to set out the relevant provisions of regulation 21 of the 2006 Regulations and of Articles 27 and 28 of the Citizens Directive which they seek to implement. We also include the CJEU ruling in MG as an Appendix. Regulation 21 provides:

  • “(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 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.”

In Chapter VI of the Citizens Directive (‘Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health’), Articles 27 and 28 provide:

  • “1. Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security or public health. These grounds shall not be invoked to serve economic ends.

  • 2. Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned. Previous criminal convictions shall not in themselves constitute grounds for taking such measures.

  • The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.

  • 3. In order to ascertain whether the person concerned represents a danger for public policy or public security, when issuing the registration certificate or, in the absence of a registration system, not later than three months from the date of arrival of the person concerned on its territory or from the date of reporting his/her presence within the territory, as provided for in Article 5(5), or when issuing the residence card, the host Member State may, should it consider this essential, request the Member State of origin and, if need be, other Member States to provide information concerning any previous police record the person concerned may have. Such enquiries shall not be made as a matter of routine. The Member State consulted shall give its reply within two months.

  • 4. The Member State which issued the passport or identity card shall allow the holder of the document who has been expelled on grounds of public policy, public security, or public health from another Member State to re-enter its territory without any formality even if the document is no longer valid or the nationality of the holder is in dispute.’

  • 9 Article 28 of Directive 2004/38, entitled ‘Protection against expulsion’, which also falls within Chapter VI, provides:

    • ‘1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

    • 2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

    • 3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:

      • (a) have resided in the host Member State for the previous 10 years; or

      • (b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.”

2

At the last hearing on 21 May 2012 (which resulted in the request for a preliminary ruling) the SSHD maintained her decision to deport but said she now accepted that the claimant had acquired permanent residence by virtue of the employment history of her husband who is also an EEA national. The respondent also said she accepted that if the claimant was entitled to the highest level of protection based on ten years' residence as set out in Article 28(3)(a), so that she could only be deported if there were “imperative grounds of public security”, then her appeal must succeed because there were no such grounds. The respondent maintained, however, that the claimant's period of imprisonment between 27 August 2009 and 11 July 2010 (in service of a sentence of 21 months following conviction for the aforementioned offences) meant that her deportation was justified even under the second highest level of protection against deportation as set out in Article 28(2) which in respect of a person who had acquired permanent...

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