Upper Tribunal (Immigration and asylum chamber), 2012-04-05, [2012] UKUT 120 (IAC) (Jarusevicius (EEA Reg 21 – effect of imprisonment))
| Jurisdiction | UK Non-devolved |
| Judge | Mr N Goldstein, Mr Justice Blake |
| Status | Reported |
| Date | 05 April 2012 |
| Published date | 17 April 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 14 February 2012 |
| Subject Matter | EEA Reg 21 – effect of imprisonment |
| Appeal Number | [2012] UKUT 120 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
Jarusevicius (EEA Reg 21 – effect of imprisonment) [2012] UKUT 00120(IAC)
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
On 14 February 2012 |
On 5 April 2012 |
|
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………………………………… |
Before
MR JUSTICE BLAKE, PRESIDENT
UPPER TRIBUNAL JUDGE GOLDSTEIN
Between
nerijus jarusevicius
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr C Yeo, instructed by Global Immigration Solution
For the Respondent: Mrs M Tanner, Home Office Presenting Officer
1. In order to acquire a right of permanent residence under regulation 15 of the Immigration (European Economic Area) Regulations 2006 and the Citizens Directive 2004/38/EC a person had to show five years lawful residence within the meaning of EU law.
2. On the present state of the authorities, a period in prison does not count towards the acquisition of the five years residence.
3. Once a permanent right of residence is acquired it is not lost save by an absence from the United Kingdom for a period in excess of two consecutive years. The learning of the Court of Justice of the European Union suggests that the continuity of residence for the purpose of regulation 21(4) (10 years residence) is not broken by a period of imprisonment.
4. In the circumstances it seems probable that a period of imprisonment should not be equated to voluntary unemployment that may lead to loss of worker status and the loss of continuity of lawful residence for the purpose of acquiring the right of permanent residence and the decisions of the AIT in LG and CC (EEA Regs: residence; imprisonment; removal) Italy [2009] UKAIT 00024 and the UTIAC in SO (imprisonment breaks – continuity of residence) Nigeria [2011] UKUT 00164 (IAC) that in addition to not counting towards the five-year period, prison also broke the continuity of residence for that period, may have to be re-examined.
5. Even where an appellant had acquired a right of permanent residence, the UKBA Criminal Casework Directorate Instructions (attached as Appendix B to LG and CC) are not to be treated as exhaustive or conclusive of which convictions would lead to an assessment of serious grounds of public policy or public security.
6. Conspiracy to handle stolen goods is different from the kinds of offences referred to in the UKBA Instructions note but the Tribunal was entitled to conclude that it amounted to serious grounds within the meaning of regulation 21(3). However, a conviction for conspiracy to handle stolen goods is unlikely to constitute conduct amounting to imperative grounds of public policy within the meaning of regulation 21(4).
DETERMINATION AND REASONS
1. The Appellant, a citizen of Lithuania, born on 30 June 1977, appealed against the decision of the Respondent dated 24 January 2011 to make a deportation order by virtue of section 5(1) of the Immigration Act 1971 (“the 1971 Act”).
2. The Secretary of State decided that the Appellant would pose a genuine, present and sufficiently serious threat to the interest of public policy if he were to be allowed to remain in the United Kingdom and that his deportation was justified under regulation 21 of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”) in the light of his conduct as evidenced by his conviction on 1 June 2010 at Chelmsford Crown Court for conspiracy to handle stolen goods.
3. Consequential decisions were made to remove and prevent re-entry under regulation 19(3)(b) and regulation 24(3) requiring him to leave the United Kingdom and prohibiting him from re-entering while the order was in force. For the purpose of the order, section 3(5)(a) of the 1971 Act would apply. The Secretary of State thus proposed to give directions for the Appellant’s removal to Lithuania, the country of which he was a national.
4. The Appellant’s appeal was dismissed by the First-tier Tribunal in a determination promulgated on 8 April 2011 and permission to appeal was granted to the Upper Tribunal on the grounds that regulation 21 had not been properly applied in this case.
5. The brief immigration history of the Appellant is that he claims to have arrived in the United Kingdom in September 2004, although no record would have been kept of this entry because as an EEA national he would not have been treated as subject to immigration control at this time.
6. On 21 March 2007 at Stratford Magistrates’ Court, he was convicted of driving a motor vehicle with excess alcohol and received a disqualification from driving for three years, a community order unpaid work requirement for 200 hours, a supervision requirement for twelve months and a curfew requirement for two months with electronic tagging.
7. On 20 May 2008 at Barking Magistrates’ Court he was convicted of breaching a community order and received a curfew for one month with electronic tagging.
8. On 1 July 2010 at Chelmsford Crown Court he was convicted of conspiracy to handle stolen goods and was sentenced to 42 months’ imprisonment. Consideration was given to his deportation thereafter.
9. The Appellant failed to provide the Secretary of State with evidence that he had been in the United Kingdom since 2004. It was therefore considered that there was no evidence of his residency in accordance with the Regulations for a continuous period of five years. The Appellant claimed to have a partner and two children in the UK but failed to provide the Secretary of State with any evidence of that claimed relationship.
10. On 3 December 2010 the Appellant wrote to the Secretary of State stating he wished to leave the United Kingdom and return to Lithuania under the Early Release Scheme. He subsequently changed his mind and appealed against the decision on the basis that he and his family had made their home in the United Kingdom, that he did not represent a present threat to public policy and deportation was disproportionate in all the circumstances.
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The first issue for the First-tier Tribunal was whether the appellant had acquired a right of permanent residence. Regulation 21, applying the provisions of the Citizens Directive, distinguishes between:
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Public policy, public security and public health (regulation 21(1));
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Serious grounds of public policy for those with a right of permanent residence (regulation 21(3))
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Imperative grounds of public policy for someone who has resided for a continuous period of at least ten years prior to the relevant decision (regulation 21(4)).
12. Regulation 15 sets out the circumstances in which a person acquires a right of permanent residence. An EEA national or the family of an EEA national who has resided in the United Kingdom in accordance with the Regulations for a continuous period of five years acquires the right of permanent residence.
13. In her Letter of Refusal dated 24 January 2011, the Secretary of State pointed out that consideration had been given to the Appellant’s period of residence in the United Kingdom. In that context ‘residence’ meant residence within the wider community. She did not consider that the time the Appellant had spent in prison, constituted residence for the purpose of the Regulations.
14. Consideration had been given to the principles set out at regulation 21(5) that states that a decision to deport a person under the Regulations must 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 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”.
15. The Secretary of State observed that the Appellant had been involved in a highly organised car cloning organisation. Cars were stolen from peoples’ homes and then sold on. False ID documents were prepared and the Appellant was involved in the selling of the cars and duping unsuspecting buyers.
16. It was further noted that His Honour Judge Hayward-Smith QC, had this to say in his sentencing remarks:
“There are a number of features relevant to the sentences I should pass. This was highly organised with cloned cars for sale very quickly after they had been stolen, there were expert documents that many people were taken in. False ID documents prepared, the speed and expertise with which this operation was carried out make it clear many others were involved.
Twenty eight cars were stolen and there were thirty three different indemnities found for the cars. Twenty were stolen in night time burglaries from dwellings, where the homes were entered, car keys taken and the cars stolen from outside resident’s properties.
… were involved in selling cars and duping unsuspecting clients. It is said that you were attracted to easy money and coerced and you told the jury a totally...
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