Secretary of State for the Home Department v Vomero (Italy)
| Jurisdiction | England & Wales |
| Judge | Lord Wilson,Lord Reed,Lord Mance,Lord Hughes,Lady Hale |
| Judgment Date | 27 July 2016 |
| Neutral Citation | [2016] UKSC 49 |
| Date | 27 July 2016 |
| Court | Supreme Court |
[2016] UKSC 49
Lady Hale, Deputy President
Lord Mance
Lord Wilson
Lord Reed
Lord Hughes
Appellant
Robert Palmer Ben Lask
(Instructed by The Government Legal Department)
Respondent
Raza Husain QC Professor Takis Tridimas Nick Armstrong
(Instructed by Luqmani Thompson & Partners)
Heard on 21 June 2016
(with whom Lady Hale, Lord Wilson, Lord Reed and Lord Hughes agree)
The respondent, Franco Vomero, is an Italian national born on 18 December 1957. He met his future wife, a UK citizen, in Nice in 1983, they came to the United Kingdom on 3 March 1985, and they married on 3 August 1985. They had five children for whom he cared (as well as undertaking some casual work) while his wife worked as a teacher. He had convictions in Italy and further convictions in the UK between 1987 and 1999. In 1998 the marriage broke down and he left the family home. He moved into accommodation with Mr Edward Mitchell, with whom he had a turbulent relationship.
On 1 March 2001, the respondent killed Mr Mitchell. Both men had been drinking, a fight ensued and the respondent 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. The respondent was arrested on 2 March 2001. The jury reduced the charge of murder to manslaughter by reason of provocation. The respondent was on 2 May 2002 sentenced to eight years' imprisonment, being released in early July 2006.
By decision made on 23 March 2007 and maintained on 17 May 2007, the appellant, the Secretary of State, determined to deport the respondent under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003). Regulation 21 gives effect to articles 27 and 28 of Directive 2004/38/EC of 29 April 2004 (OJ 2004 L158, p 77). The issues on this appeal depend on the proper interpretation of the Directive.
The respondent was detained with a view to deportation until December 2007. On appeal the case was reheard and 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] 2 CMLR 46 and MG v Secretary of State for the Home Department ( Case C-400/12) [2014] 2 CMLR 40, on which the Court of Justice delivered judgments on 16 January 2014. In the meantime, the respondent committed and was convicted of further offences. One conviction (in January 2012) for having a bladed article, battery and committing an offence while subject to a suspended sentence led to him being sentenced to 16 weeks' imprisonment. Another (in July 2012) for burglary and theft led to a further 12 weeks' sentence.
In summary, therefore:
i) From 1985 to 2001 the Respondent lived in the UK, albeit with convictions from time to time which did not result in imprisonment.
ii) From March 2001 to July 2006 he was in prison for manslaughter.
iii) The decision to deport him was made in March 2007, less than nine months after his release from prison.
iv) Subsequently he has been convicted again and has served further short sentences of 16 and 12 weeks.
The following provisions of the Directive are of particular relevance and are appended for ease of reference: recitals (17), (18), (23) and (24) and articles 6, 7, 13, 16 and 28. The issues on this appeal are, in outline: (i) whether enhanced protection is available under article 28(3)(a) to a Union citizen who does not enjoy a right of permanent residence under article 16 or therefore enjoy the lesser protection available under article 28(2); and (ii) so far as relevant, what are the principles on which protection is available under articles 28(2) and 28(3)(a).
The Secretary of State's case is that the respondent has never acquired a right of permanent residence, and that enhanced protection cannot in consequence be available under article 28(3)(a). As put before the Supreme Court, it does not involve investigating events prior to 2001, it being accepted that the respondent had by 2001 some 16 years' established residence in the United Kingdom (see para 1 above). The case rests on the indisputable fact of the respondent's imprisonment for manslaughter from 2001 to 2006 and on Court of Justice authority, including judgments in Onuekwere and MG post-dating the Court of Appeal's judgment.
In this connection, it is, now at least, clear that no right of permanent residence could in law be acquired before 30 April 2006: see article 40 of the Directive, Secretary of State for Work and Pensions v Lassal ( Case C-162/09) [2001] 1 CMLR 31, para 38 and Secretary of State for Work and Pensions v Dias ( Case C-325/09) [2011] 3 CMLR 40, paras 40 and 57. To acquire such a right, the respondent therefore required, as at 30 April 2006 or at some later date, to "have resided legally for a continuous period of five years" in the UK. As at 30 April 2006, the respondent had been in prison for over five years, and he remained so for a further two months. By the time of the decision to deport, he had been out of prison for less than nine months.
Second, in 62012CJ0378">Onuekwere the Court of Justice held on 16 January 2014 that under the terms of article 16(2) of the Directive "periods of imprisonment cannot be taken into consideration for the purposes of the acquisition of a right of permanent residence for the purposes of that provision" (para 22) and further that articles 16(2) and (3) "must be interpreted as meaning that continuity of residence is interrupted by periods of imprisonment in the host member state" (para 32). The same must necessarily apply in respect of a Union citizen under article 16(1).
Under article 16(4) a right of permanent residence acquired in the past may be lost "through absence from the host member state for a period exceeding two consecutive years". The thinking behind article 16(4), as explained in Lassal ( Case C-162/09) paras 53–58, is that a two-year absence affects "the link of integration" with the host member state of the Union citizen concerned. In Dias ( Case C-235/09) this thinking was developed in a more complex situation. A Union citizen had resided legally in the UK for a five-year period from January 1998 until 17 April 2003 (not yet therefore acquiring any permanent right of residence since this five-year period ended prior to 30 April 2006). She had remained thereafter in the UK for a period from April 2003 to April 2004 during which she did not work or satisfy any other condition entitling her to reside in the UK under European Union law. From April 2004 to March 2007 (when she asserted that she had a permanent right of residence) she again worked. The Court of Justice held that the rule laid down in article 16(4) regarding absences must be applied by analogy in relation to the period when she had not been working. Since this was for less than two years, it did not affect her acquisition of a permanent right of residence as from 30 April 2006. The Supreme Court considers it clear (and understood Mr Raza Husain QC for the respondent to accept) that the Court of Justice was here identifying a bright line rule relating to the acquisition of a permanent right of residence.
Even a period out of work exceeding two years cannot affect a right of permanent residence acquired from or after 30 April 2006. The point of a permanent right of residence is that it is no longer necessary to work or to fulfil any of the other residence qualifications applicable under article 7 to Union citizens who have not acquired a permanent right of residence. By analogy with absence, it might, however, seem logical if a period exceeding two years spent in prison were to lead to the loss of any right of permanent residence acquired on or after 30 April 2006. The parties were not however agreed on this, and it is not necessary to consider it further on this appeal.
It follows from paras 8 and 9 above that, as the Secretary of State rightly submits, the respondent had not acquired any right of permanent residence before the date of the decision to deport him. The respondent's case on this basis has to be that this is irrelevant, and that a Union citizen with no right of permanent residence may nevertheless acquire a right to enhanced protection under article 28(3)(a).
As to the test for acquiring enhanced protection, Mr Husain submits, on the basis of Court of Justice decisions in Land Baden-Württemberg v Tsakouridis ( Case C-145/09) 62009CJ0145"> [2013] All ER (EC) 183 and MG ( Case C-400/12), that the requirement in article 28(3)(a) that the Union citizen "have resided in the host member state for the previous ten years" involves an overall assessment of the degree of integration at the date of the decision to deport; that there must "in principle" have been ten continuous years of residence, and that a period of imprisonment will not normally count towards integration; but that a period of imprisonment immediately preceding the decision to deport will not necessarily mean that prior integration is lost to a degree depriving the Union citizen of enhanced protection under article 28(3)(a); otherwise, Mr Husain submits, a delayed decision to deport could unfairly prejudice a Union...
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...statement Mr Mitchell sought to rely in addition on a recent decision of the Supreme Court in Secretary of State v Franco Vomero (Italy) [2016] UKSC 49 where the Supreme Court made a preliminary reference to the Court of Justice on the question whether it is necessary for an individual to e......
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