Upper Tribunal (Immigration and asylum chamber), 2012-07-30, [2012] UKUT 269 (IAC) (Onuekwere (imprisonment – residence))
| Jurisdiction | UK Non-devolved |
| Judge | Mr A Jordan, Lord Bannatyne |
| Status | Reported |
| Date | 30 July 2012 |
| Published date | 05 September 2012 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 01 November 2012 |
| Subject Matter | imprisonment – residence |
| Appeal Number | [2012] UKUT 269 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Onuekwere (imprisonment – residence) [2012] UKUT 00269(IAC)
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Heard at Field House |
Determination Promulgated |
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On 1 November 2011 |
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Before
LORD BANNATYNE
UPPER TRIBUNAL JUDGE JORDAN
Between
Mr Nnamdi Onuekwere
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr Mark Henderson, Counsel, instructed by Birnberg Peirce & Partners, Solicitors
For the Respondent: Mr Richard Hopkin, Home Office Presenting Officer
This decision refers to the Court of Justice of the European Union the questions set out at the end of it.
ORDER FOR REFERENCE
TO THE COURT OF JUSTICE OF THE EUROPEAN UNION
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The appellant is a citizen of Nigeria who claims to have arrived in the United Kingdom in 1999 as a visitor. On 2 December 1999, he married an Irish national. They have 2 children. It was at this moment that time commences to run in relation to the entitlements upon which the appellant now seeks to rely. On 5 September 2000, he was granted a residence permit permitting him to remain in the United Kingdom as the spouse of an EEA citizen exercising Treaty rights in the United Kingdom. The residence permit was expressed to expire on 5 September 2005.
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On 26 June 2000, upon his conviction of having intercourse with a mental patient whilst a member of the hospital staff, the appellant was sentenced to 9 months imprisonment suspended for 2 years. He completed the period of suspension without imprisonment.
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On 30 September 2003, whilst passing through United Kingdom border controls from France, the appellant was arrested for assisting the illegal entry of a passenger in the car in which he was travelling. He was bailed to appear at court but absconded. He was convicted of the offence on 18 August 2004. On 16 September 2004, he was sentenced to 2 years and 6 months imprisonment. Between the period 2 December 1999 (his marriage to a Union citizen/EEA national) and 16 September 2004, a period of about 4 years 10 months elapsed, a period just short of five years’ residence before imprisonment.
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The appellant was released on 16 November 2005. On 18 November 2005, the Secretary of State made a decision to make a deportation order. On 1 November 2006, the appeal against deportation was allowed on the basis that the appellant was the husband of an EEA national exercising Treaty rights.
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On 26 December 2007 when the appellant’s motorcar was stopped, he was found to be unlawfully in possession of false documentation for which offence he was convicted on 14 April 2008. On 8 May 2008 he was sentenced to 2 years 3 months imprisonment. The sentencing judge described the offence as undermining the integrity of identity in the context of undermining the application process for jobs. It was noted that, by that time, he had already spent 109 days in custody suggesting that he had been in detention since sometime in January 2008. The period between his release on 16 November 2005 and his next imprisonment amounted to about 2 years and 2 months. He was released on 6 February 2009, about 2 years and 9 months before the hearing before us.
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The Secretary of State made the second decision to deport him on 6 February 2009. By a decision made on 29 June 2010, the Upper Tribunal allowed the appellant’s appeal, the Judge finding that although the appellant’s wife had exercised Treaty rights between April 1998 and May 2004 and had therefore acquired a permanent right of residence, the appellant had not because his imprisonment in 2004 prevented its being acquired. Nevertheless, even on the basis of the baseline level of protection afforded to EEA nationals and their family members, the Judge found the appellant’s circumstances outweighed the public interest in removing on public policy grounds, notwithstanding the offending. Following the decision, the appellant sought a permanent residence card.
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On 24 September 2010, the Secretary of State refused his application for a permanent residence card under the Immigration (European Economic Area) Regulations 2006 (2006 No 1003) which implemented Directive 2004/38/EC. That decision gave rise to a right of appeal which the appellant exercised. The appeal was heard on 20 June 2011. The Judge found the appellant was entitled to a residence card but not a right of permanent residence based on 5 years continuous residence. The Secretary of State did not, however, appeal the Judge’s finding that the appellant was entitled to a residence card.
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The appellant appealed to the Upper Tribunal asserting that the Judge had made an error of law in refusing him the permanent residence card by reason of the breaks in continuity of residence resulting from the periods he had spent in prison. He submitted that the decision of the Grand Chamber in Case C-145/07 Tsakouridis stated that imprisonment did not break continuity but was merely a factor to be taken into account. Whilst Tsakouridis was a case dealing with the highest level of protection afforded to those with a 10-year period of residence, by parity of reasoning, the case also determined the correct approach to those entitled to a permanent right of residence. The case came before us to decide whether the Judge’s approach was legally flawed.
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The appellant has never spent a continuous period of 5 years in the United Kingdom since 2 December 1999 if the periods of his imprisonment are excluded from the calculation. It goes without saying that if they are included, the period that has elapsed since his marriage on 2 December 1999 is now in excess of 12 years. We should add that there has never been a suggestion in this case that either the appellant or his spouse has been absent from the United Kingdom so as to break their continuity of residence.
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If the periods of imprisonment are excluded from calculation but the periods of physical freedom are aggregated (albeit non-continuous), the period is in excess of 5 years.
Case law and Discussion
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In order to understand the significance of the relevant case law, it is important to note that the impact of imprisonment upon the calculation of the period of 5 years residence not only affects the entitlement to a permanent right of residence and the documentation that recognises it but also affects the level of protection against removal that is afforded to Union citizens/EEA nationals or their family members under Article 28 of Directive 2004/38/EC, as transposed into United Kingdom law by reg. 21 of the Immigration (European Economic Area) Regulations 2006 (2006 No 1003). It is in this context that the issue has usually been considered both in national and European level. Reg. 21 is as follows:
Decisions taken on public policy, public security and public health grounds
21.—(1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who—
(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, 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 or 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.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person’s length of residence in the United Kingdom, the person’s social and cultural integration into the United Kingdom and the extent of the person’s links with his country of origin.
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The 2006 Regulations set out three levels of protection; (1) the basic level of protection for anyone who is the subject of an EEA decision taken on public...
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