Secretary of State for the Home Department v Benedetto Vassallo
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lady Justice Macur,Mr Justice Cranston |
| Judgment Date | 14 January 2016 |
| Neutral Citation | [2016] EWCA Civ 13 |
| Date | 14 January 2016 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2014/3319 |
[2016] EWCA Civ 13
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lady Justice Macur
and
Mr Justice Cranston
Case No: C5/2014/3319
Brian Kennelly (instructed by The Government Legal Department) for the Appellant
Stephen Knafler QC and Greg Ó Ceallaigh (instructed by Turpin & Miller LLP) for the Respondent
Hearing dates: 2 December 2015
This is an appeal by the Secretary of State for the Home Department against a determination of the Upper Tribunal (Immigration and Asylum Chamber) in a deportation case. The Upper Tribunal's determination is reported as Vassallo (Qualifying Residence; pre-UK Accession) [2014] UKUT 00313 (IAC). The hearing of the appeal was listed in this court under the title BV (Italy) v Secretary of State for the Home Department but there is no reason for maintaining the anonymity of Mr Vassallo, the respondent to the appeal.
Mr Vassallo is an Italian national, born on 1 January 1948, who came to the United Kingdom as a young child and has been resident here ever since, with only minor absences from the country. He entered the country lawfully in 1952 with his parents, Italian nationals who came to work here. He lived here with them as a dependent relative from the time of his arrival until 1963. In 1968 he married a British citizen, by whom he had two children who are also British citizens. It is common ground that, having originally been granted leave to land without restriction as a child pursuant to the Aliens Restriction Act 1914, he acquired indefinite leave to remain by operation of section 34(3) of the Immigration Act 1971 on its coming into force on 1 January 1973.
Since 1963, Mr Vassallo has been convicted in the United Kingdom on 31 separate occasions, in respect of 68 offences. They have consisted mainly of dishonesty offences, including numerous offences of burglary, and have resulted in custodial sentences ranging in length from 14 days to 54 months. He has also been the subject of convictions in Switzerland (in 1985, for burglary, criminal damage and a public order offence) and in Sweden (in 1994, for burglary). In May 2012 he was sentenced in the United Kingdom to 29 months' imprisonment for a burglary committed at the home of an elderly couple. This led to a decision by the Secretary of State, on 19 August 2013, to make a deportation order against him under regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations") on grounds of public policy or public security.
Mr Vassallo's appeal against that decision was allowed by the First-tier Tribunal, which held that he had resided in the United Kingdom for a continuous period of ten years prior to the deportation decision and that he could not therefore be deported except on "imperative" grounds of public security, pursuant to regulation 21(4) of the EEA Regulations; alternatively, that he had resided in the United Kingdom for a continuous period of five years and had thereby acquired a right of permanent residence pursuant to regulation 15, so that he could not be deported except on "serious" grounds of public policy or public security, pursuant to regulation 21(3). The tribunal went on to hold that his deportation would not be in accordance with the principles in regulation 21(5) and would be disproportionate.
The Secretary of State appealed to the Upper Tribunal against that determination. The Upper Tribunal found that the First-tier Tribunal had erred in relation to the issue of ten years' continuous residence, in that the ten year period had to be counted back from the date of the relevant decision and was interrupted in this case by periods of imprisonment that broke the continuity of residence. But the Upper Tribunal upheld the finding of the First-tier Tribunal as to the acquisition of a right of permanent residence, albeit it did so by different reasoning. It concluded that, although the Firsttier Tribunal had erred in law, the error was not material and the determination of that tribunal should therefore stand.
The central question on the Secretary of State's further appeal to this court is whether the tribunals were correct in law to find that Mr Vassallo had acquired a right of permanent residence. To answer that question, it is convenient to start with the EU directive which the EEA Regulations implement, namely Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member State ("the Directive"), before setting out the relevant provisions of the EEA Regulations themselves and examining the way in which the tribunals applied them.
The right of permanent residence under the Directive and the EEA Regulations has been considered recently by this court in AA (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 1249. That case was concerned with whether an admitted right of permanent residence had subsequently been lost, whereas the present case is concerned with whether a right of permanent residence was acquired in the first place. There is, however, an inevitable degree of overlap between the judgment in that case and the present judgment in the description of the legislative framework and the relevant case-law.
The Directive
The Directive sets out the rights of EU citizens to free movement and residence within the Union, replacing the former piecemeal legislative approach by a single measure. Recitals (17) and (18) state that a right of permanent residence should be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in the Directive during a continuous period of five years without becoming subject to an expulsion measure; and that the right of permanent residence, once obtained, should not be subject to any conditions. Recitals (23) and (24) relate to expulsion measures, stating inter alia that 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.
Chapter III of the Directive concerns the right of residence generally and includes, in Article 7(1), the conditions on which Union citizens have a right of residence on the territory of another Member State for a period longer than three months: for example, if they are workers or self-employed persons in the host Member State or if they are family members accompanying a Union citizen who is a worker or self-employed person in the host Member State.
Chapter IV concerns the right of permanent residence. The key provision is Article 16 which provides in material part:
"Article 16. General rule for Union citizens and their family members
1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.
…
4. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years."
11. Chapter VI concerns restrictions on the right of entry and the right of residence on grounds of public policy, public security and public health. Article 27 lays down general principles, whilst Article 28 deals specifically with protection against expulsion, as follows:
"Article 27. General principles
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 and public health ….
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.
…
Article 28. Protection against expulsion
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 …."
Member States were required to transpose the Directive into national law by 30 April 2006. It was only from that date that the right of permanent residence under the Directive could be acquired. One of the issues considered in the case-law of the Court of Justice of the European Union ("the CJEU"), however, is the effect of...
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Upper Tribunal (Immigration and asylum chamber), 2016-03-21, DA/00180/2015
...Furthermore, the appellant’s circumstances were similar to those in the case of Secretary of State for the Home Department v Vassallo [2016] EWCA Civ 13, according to which it was unlikely that she had acquired a right to permanent residence on 30 April 2006. He requested that the responden......