Vassallo (Qualifying residence; pre-UK accession)
| Jurisdiction | UK Non-devolved |
| Judge | Mcgeachy,Kopieczek |
| Judgment Date | 28 February 2014 |
| Neutral Citation | [2014] UKUT 313 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 28 February 2014 |
[2014] UKUT 313 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Mcgeachy
UPPER TRIBUNAL JUDGE Kopieczek
For the Appellant: Mr T. Melvin, Home Office Presenting Officer
For the Respondent: Mr R. Halim, Counsel instructed by Turpin & Miller Solicitors
Vassallo (Qualifying residence; pre-UK accession)
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(1) A person may acquire qualifying residence for the purposes of exercising Treaty rights in respect of periods of residence arising before the UK became part of the European Community on 1 January 1973.
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(2) Similarly, a person may acquire qualifying residence in respect of periods of residence arising before the implementation of the Immigration (European Economic Area) Regulations 2000.
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(3) However, in each case the residence in question must be in accordance with the conditions laid down in Article 7(1) of Directive 2004/38/EC (the Citizens Directive) or in accordance with Schedule 4, paragraph 6 of the Immigration (European Economic Area) Regulations 2006.
The appellant in these proceedings is the Secretary of State. However, for convenience we refer to the parties as they were before the First-tier Tribunal. Thus, the appellant, Benedetto Vassallo, is a citizen of Italy, born on 1 January 1948. He is said to have arrived in the UK in 1952.
The appellant has been convicted of numerous and varied criminal offences. They are summarised in the refusal letter as having commenced in 1963, involving 68 offences in the UK, Switzerland and Sweden, and consisting mostly of offences of dishonesty including numerous offences of burglary. He has received many sentences of imprisonment.
His offending culminated in a conviction in the Crown Court at Canterbury on 21 May 2012 for an offence of (residential) burglary, resulting in a sentence of 29 months' imprisonment. That offence involved the burglary of the home of an elderly couple in their 90's who had been watched leaving the premises. The appellant and his accomplice were apprehended after leaving the property, in possession of jewellery, ornaments and cash.
On 19 August 2013 a decision was made to make a deportation order pursuant to the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”). The appellant's appeal against the decision was allowed under the EEA Regulations by a panel (“the Panel”) of the First-tier Tribunal consisting of First-tier Tribunal Judge Nightingale and non-legal member Sir Jeffrey James, after a hearing on 21 November 2012.
Permission to appeal was granted on the basis that it was arguable that the First-tier Tribunal had erred in law in concluding that the appellant had acquired a permanent right of residence and could only be deported on imperative grounds of public security.
The Panel of the First-tier Tribunal found that the appellant had established that he had been resident in the UK since 1952 as had been claimed and that his parents were in employment here from the time that the appellant arrived.
The Panel also found that he had been continuously resident for a period of 10 years prior to his first sentence of imprisonment in 1963, and in that time he had been in education. He had thus acquired protection against removal at the highest level, namely imperative grounds of public security under regulation 21(4) of the EEA Regulations. The periods of time that he spent in Sweden and Switzerland did not break the continuity of residence. The Panel found in the alternative that the appellant had acquired permanent residence on the basis of five years continuous residence.
He had been to Italy only once since the age of 5 for a family holiday of about three weeks and he has not remained in contact with relatives there. It was found that he neither reads nor writes Italian and that his spoken Italian is limited. He was, to all intents and purposes, raised as a British child, married a British woman and is the father of two British national children to whom he is “reasonably” close emotionally.
The Panel found that the appellant had committed a large number of criminal offences but represented a low risk of reoffending.
Mr Melvin submitted that the Panel was wrong to take into account the period from 1953 to 1963 as demonstrating that the appellant had acquired permanent residence in the UK, thus entitling him to the highest level of protection against removal, namely only on imperative grounds of public security. This is because the UK did not become part of the European Community (“EC”) until 1973.
In addition, the Panel had been wrong to conclude that the appellant had integrated into the community in the UK, he having committed offences over a 47 year period. The decision in Essa (EEA: rehabilitation/integration) [2013] UKUT 00316 (IAC) was relied on. He is a serial offender who could not be said to have become fully integrated. There is very little evidence of the exercise of Treaty rights whilst he has not been in prison.
Mr Halim relied on the decision of the Court of Appeal in Taous Lassal [2009] EWCA Civ 157 in relation to the objects of the Citizens Directive and the need to facilitate free movement. Notwithstanding that the appellant's life in Europe took place before formal union, he has been here since the age of 5 which is a matter that should attract weight.
Between 1953 and 1963 the appellant was a student. Paragraph 6 of Schedule 4 to the EEA Regulations meant that that period as a student could be taken into account. Even if he had not qualified by reason of his studies, he was a family member of persons exercising Treaty rights. It was not argued, however, that the appellant qualified as a worker in his own right.
Furthermore, it had not been established that the appellant represented a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. The Secretary of State was not entitled to go behind the OASys report which referred to his risk of reoffending as low. The appellant had spent many years in the UK, had no ties to Italy, could not speak the language and could be said to be a ‘home grown’ criminal.
The appeal would otherwise have been allowed under Article 8 of the ECHR if not under the EEA Regulations, the Panel having referred to the decision in Maslov [2008] ECHR 546.
In reply, Mr Melvin submitted that if the appellant were not able to succeed on the basis of his studies between 1953 and 1963, equally he could not rely on his being a dependant of his parents because the same principle applies: he could not benefit from membership of the EC at that time.
It is as well to set out at this stage the relevant elements of Directive 2004/38/EC (“the Directive” or “Citizens Directive”) as transposed into UK domestic law by the EEA Regulations. The Regulations are as follows:
“Exclusion and removal from the United Kingdom
19.- …
(3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if-
(a) that person does not have or ceases to have a right to reside under these Regulations; or
(b) the Secretary of State has decided that the person's removal is justified on grounds of public policy, public security or public health in accordance with regulation 21.
(4) A person must not be removed under paragraph (3) as the automatic consequence of having recourse to the social assistance system of the United Kingdom.
(5) A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the 1971 Act unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.
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(11).
(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...
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Secretary of State for the Home Department v Benedetto Vassallo
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