Ogunyemi (imprisonment breaks continuity of residence)
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Silber,Warr |
| Judgment Date | 24 March 2011 |
| Neutral Citation | [2011] UKUT 164 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 24 March 2011 |
[2011] UKUT 164 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Hon. Mr Justice Silber
Senior Immigration Judge Warr
For the Appellant: Mr A Alabt of Peniel Solicitors
For the Respondent: Mr K Kyriacou, Home Office Presenting Officer
Ogunyemi (imprisonment breaks continuity of residence) Nigeria
Time spent in prison however short is to be disregarded in the calculation of the period required to obtain a permanent right of residence with the consequence that that period has to start again on release.
The Secretary of State for the Home Department appeals against the decision of Immigration Judge Neuberger promulgated on 15 December 2010 by which he allowed an appeal by Mr Sunday Adeola Ognyemi (“the respondent”) against the decision of the Secretary of State issued on 22 September 2010. By that decision, the Secretary of State had refused to grant the respondent a residence card as confirmation of a permanent right to live in the United Kingdom under the requirements of Regulation 15(1)(f) of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”). The issue raised on this appeal is whether the time spent by the respondent in prison for a criminal offence breaks “a continuous period of five years” which is the qualifying period for obtaining the right to reside in the United Kingdom permanently under Regulation 15(1)(f) of the Regulations. We should also add that we are not concerned with any other issue such as whether the respondent can be or should be deported because that is not a matter which is before us.
Before considering submissions it is necessary to set out the statutory provisions. Regulation 15 which is the significant one has the heading “Permanent right of residence”. The relevant part of it states that:
“(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
…
(f) a person who
(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained his right of residence.”
The Immigration Judge explained that the respondent was born in Nigeria and had entered the United Kingdom without leave in the year 2000. He married a Dutch EEA national in September 2002 and he was granted permission to stay as a family member. The marriage lasted for seven and a half years and the respondent and his wife were divorced in January 2010.
On April 2006, the respondent had been sentenced to twenty months' imprisonment for using a false instrument. On 5 March 2010 an application had been made on behalf of the respondent for a residence card as confirmation of his right to reside in the United Kingdom. He applied as a non-European Economic Area national former family member of his Dutch wife. He sought a retained right of residence on the basis of having completed five years' residency in the United Kingdom in accordance with the Regulations. The application was refused on the basis that the Secretary of State stated that the respondent had not completed five years' residence in the United Kingdom. The Immigration Judge recorded that he had heard evidence from the respondent who had stated that he had started a prison sentence on 30 August 2006 and he was released on 3 January 2007 having spent a period of four months and three days in prison. He also had received credit for thirty days remand time and police custody time. It is accepted on behalf of the respondent that if the period of time which the respondent spent in custody is ignored, he would not qualify for the residence card under Regulation 15(1) (f). Thus the issue is whether any time spent by the respondent in custody does not count towards the five-year period of residence required for the acquisition of a permanent right.
Mr Alabt, the solicitor for the respondent, submitted to the Immigration Judge that while the Secretary of State relied on the Court of Appeal judgment in HR (Portugal) v the Secretary of State [2009] EWCA Civ 371 the Court of Appeal in that case had ruled that it was only a European Economic Area national who having been convicted of a crime and who was detained for a significant period of imprisonment who would be deemed not to be a resident in the United Kingdom for the purposes of Regulation 21(4)(a). The Immigration Judge explained that the respondent's case before him stressed the importance of the time in prison being “a significant period”. This was then developed by Mr Alabt when he appeared in front of the Immigration Judge when he submitted that the respondent had only been in prison for four months which could hardly be described as “a significant period”. It was said that the similar reasoning applied under Regulation 15(1)(f) with the consequence that the fact that the respondent had been in prison for four months did not break his continuous period of residence in the United Kingdom which was required under the Regulations.
The case for the Secretary of State is that any period of imprisonment irrespective of its length broke the period necessary to qualify for a residence card. The Immigration Judge explained his conclusions in paragraph 10 of his decision where he said:
“I have carefully considered the evidence of the appellant and all the documents on the file and have paid special attention to the Court of Appeal judgment in the case of HR(Portugal). Having considered all these matters carefully, I have concluded that Mr Ibitayo did indeed make a correct submission in that this appellant had not served a substantial period in prison but was there for merely four months. Accordingly, such a period spent in prison, does not break the continuity of his stay in the United Kingdom and it is quite clear that he is indeed entitled to permanent right of residence in the United Kingdom in accordance with the provisions of Regulation 15. Accordingly, I allow the appeal.”
The ground of appeal of the Secretary of State is that any time spent in...
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