Secretary of State for the Home Department v Vomero (No 2)
| Jurisdiction | England & Wales |
| Judge | Lord Reed,Lady Hale,Lord Wilson,Lord Mance,Lord Hughes |
| Judgment Date | 24 July 2019 |
| Neutral Citation | [2019] UKSC 35 |
| Court | Supreme Court |
| Date | 24 July 2019 |
[2019] UKSC 35
Lady Hale, President
Lord Reed, Deputy President
Lord Wilson
Lord Mance
Lord Hughes
Appellant
Robert Palmer QC
(Instructed by The Government Legal Department)
Respondent
Raza Husain QC
Professor Takis Tridimas
Nick Armstrong
(Instructed by Luqmani Thompson & Partners)
Heard on 7 February 2019
( with whom Lady Hale, Lord Wilson, Lord Mance and Lord Hughes agree)
On 27 July 2016, following a hearing of this appeal, this court referred a number of questions of EU law to the Court of Justice for a preliminary ruling: Secretary of State for the Home Department v Vomero [2016] UKSC 49; [2017] 1 All ER 999. On 17 April 2018 the Court of Justice delivered its judgment: FV (Italy) v Secretary of State for the Home Department (Joined Cases C-424/16 and C-316/16) [2019] QB 126. In the light of that judgment, and the opinion of Advocate General Szpunar, this court held a further hearing of the appeal on 7 February 2019. It is now in a position to give its decision on the appeal.
The respondent, Franco Vomero, is an Italian national born on 18 December 1957. On 3 March 1985 he moved to the United Kingdom with his future wife, a UK national. They were married in the UK on 3 August 1985 and had five children here, for whom Mr Vomero cared, in addition to working occasionally, while his wife worked full-time.
Between 1987 and 2001 Mr Vomero received several convictions in the UK, two of which (in 1991 and 1992) resulted in short terms of imprisonment. In 1998 the marriage broke down. Mr Vomero left the family home and moved into accommodation with Mr Edward Mitchell.
On 1 March 2001, Mr Vomero killed Mr Mitchell. Both men had been drinking, a fight ensued and Mr Vomero struck Mr Mitchell at least 20 times on the head with weapons including a hammer, and then strangled him with electrical flex from an iron. Mr Vomero was arrested on 2 March 2001 and remanded in custody until his trial. The jury reduced the charge of murder to manslaughter by reason of provocation. Mr Vomero was on 2 May 2002 sentenced to eight years' imprisonment. He was released on licence on 3 July 2006 but re-arrested a short time later as no hostel accommodation was available for him. He was subsequently detained under immigration powers.
By decision made on 23 March 2007 and maintained on 17 May 2007, the appellant, the Secretary of State, determined to deport Mr Vomero under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003). Regulation 19(3)(b) permits the Secretary of State to deport a national of the European Economic Area (“EEA”), or a family member of an EEA national, where the person's removal is justified on the grounds of public policy, public security or public health. Any such deportation must be in accordance with regulation 21. The latter regulation gives effect to articles 27 and 28 of Council Directive 2004/38/EC of 29 April 2004 (OJ 2004 L158, p 77) (“the Directive”), which are set out below.
Mr Vomero challenged that decision before the Asylum and Immigration Tribunal. The decision of that tribunal was appealed to the Court of Appeal, whose decision ( [2012] EWCA Civ 1199; [2013] 1 WLR 3339) has given rise to the present appeal. The proceedings were twice adjourned pending the determination of other cases, including latterly the references in Onuekwere v Secretary of State for the Home Department (Case C-378/12) [2014] 1 WLR 2420 and Secretary of State for the Home Department v MG (Portugal) (Case C-400/12) [2014] 1 WLR 2441.
Mr Vomero was detained with a view to deportation until December 2007. He subsequently committed and was convicted of further offences, two of which resulted in custodial sentences. In January 2012 he was convicted of having a bladed article, battery and committing an offence while subject to a suspended sentence. He was sentenced to 16 weeks' imprisonment. In July 2012 he was convicted of burglary and theft and was sentenced to a further 12 weeks' imprisonment.
In summary, therefore:
(1) From 1985 to 2001 Mr Vomero lived in the UK, with convictions from time to time which resulted in short periods of imprisonment during 1991 and 1992.
(2) From March 2001 to July 2006 he was in prison for manslaughter.
(3) The decision to deport him was made in March 2007, less than nine months after his release from prison, by which time he had entered immigration detention.
(4) Subsequently he was convicted again and served further short sentences during 2012.
The court has no information before it as to Mr Vomero's circumstances since 2012.
In Chapter III of the Directive, entitled “Right of residence”, articles 6 and 7 specify the conditions under which Union citizens and their family members have rights of residence in a member state other than that of which they are nationals. Under article 6, entitled “Right of residence for up to three months”, Union citizens have the right of residence on the territory of another member state for a period of up to three months without any conditions or formalities other than the requirement to hold a valid identity card or passport. Under article 7, entitled “Right of residence for more than three months”, Union citizens have the right of residence on the territory of another member state for a period of longer than three months if they meet one of the conditions set out in para 1, including if they “(a) are workers or self-employed persons in the host member state”.
In Chapter IV, entitled “Right of permanent residence”, article 16 states:
“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.
2. Paragraph 1 shall also apply to family members who are not nationals of a member state and have legally resided with the Union citizen in the host member state for a continuous period of five years.
3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another member state or a third country.
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.”
“Legal” residence is residence which satisfies the conditions laid down in the Directive, in particular those set out in article 7(1): Ziolkowski v Land Berlin (Joined Cases C-424/10 and C-425/10) [2014] All ER (EC) 314; [2011] ECR I-14035, para
In its application to periods of residence preceding the date for transposition of the Directive, the expression is construed as meaning residence in accordance with the earlier EU law instruments: Secretary of State for Work and Pensions v Lassal (Child Poverty Action Group intervening) ( Case C-162/09) [2011] All ER (EC) 1169; [2010] ECR I-9217, para 40.
Chapter VI of the Directive, entitled “Restrictions on the right of entry and the right of residence on grounds of public policy, public security or public health” contains articles 27 to 33. Article 27, entitled “General principles”, states in paras 1 and 2:
“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.”
Article 28, entitled “Protection against expulsion”, 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 ten 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.”
Under article 40, member states were required to transpose the Directive by 30 April 2006: that is to say, during the period when Mr Vomero was serving his sentence of...
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