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12 years a litigant: Franco Vomero case returns to Supreme Court

12 years a litigant: Franco Vomero case returns to Supreme Court

The Supreme Court handed down its second judgment in the long-running case of Franco Vomero today. The latest instalment is Secretary of State for the Home Department v Franco Vomero [2019] UKSC 35.

The facts

Mr Vomero is Italian. He moved to the UK and married a British citizen in 1985. They had five children. He cared for the children while his wife worked as a teacher. He had criminal convictions in Italy and he received further convictions in the UK between 1987 and 1999.

Mr Vomero’s marriage broke down in 1998 and he moved in with a Mr Mitchell. In 2001, Mr Vomero brutally killed Mr Mitchell after a drunken fight. He was charged with manslaughter by reason of provocation and sentenced to eight years’ imprisonment. He was released in 2006.

In March 2007 the Secretary of State made a decision to deport Mr Vomero under the Immigration (European Economic Area) Regulations 2006 (which have since been superseded by the 2016 version). Mr Vomero appealed against his deportation.

Like the hydra, for every court decision issued this appeal seems to have sprouted yet more heads. Without getting bogged down in the full procedural history, I was surprised to see that Mr Vomero’s case has been ongoing since 2007, having endured references to the Court of Justice of the European Union, a Court of Appeal hearing, two UK Supreme Court hearings, and multiple tribunal hearings.

During that 12-year period you would think Mr Vomero would have been on his best behaviour, but no, he continued to commit offences. He was sentenced to 16 weeks’ imprisonment in January 2012 and another 12 weeks in July 2012. The court did not have any information on his record since 2012.

The legal issue

So what is this burning issue that has occupied the courts for so long? It boils down to whether or not Mr Vomero was entitled to “enhanced protection” from deportation under the EEA Regulations. If he was, he should be able to resist deportation and remain in the UK. If not, then the deportation should stand. For an explainer on the various levels of protection from deportation under EU law, see this piece by Nick.

Although it may seem that this would be a question of fact rather than law, the law on enhanced protection was ambiguous. Specifically, article 28(3)(a) of the Citizens Directive required the person to “have resided in the host member state for the previous ten years”. Any mention of acquisition of a right of permanent residence was curiously absent from this phrase.

At Mr Vomero’s first Supreme Court hearing back in 2016, a majority of the court favoured the view that having permanent residence under EU law was not needed in order to enjoy enhanced protection under article 28(3)(a). A minority regarded the position unclear. As a result a reference was made to the Court of Justice to clarify:

whether enhanced protection under article 28(3)(a) depends upon the possession of a right of permanent residence within article 16 and article 28(2).

The CJEU said yes, enhanced protection does depend upon possession of a right of permanent residence. Or as Nath previously put it: No permanent residence, no enhanced protection from deportation.

The case went back before the Supreme Court in February 2019 for the court to determine what order should be made in light of the CJEU’s judgment. By that point, an issue had arisen between the parties as to whether it was open to Mr Vomero to argue that he had acquired a right of permanent residence in the UK by the date of the decision to deport him. The court said yes, it was.

Lord Reed concluded:

it will be necessary for the tribunal, when this case is remitted to it, to consider not only whether Mr Vomero has acquired a right of permanent residence since the date of the decision to deport him, in accordance with the agreement of the parties (see para 32 above), and if so the implications of his having done so, but in any event whether there are still “grounds of public policy or public security” within the meaning of article 28(1) of the Directive on the basis of which his expulsion may be justified.

Allowing the Secretary of State’s appeal, the Court:

grant[ed] a declaration that neither article 28(2) nor article 28(3) of Directive 2004/38/EC applied to Mr Vomero as at the date of the Secretary of State’s decision to deport him on 23 March 2007, and remit the respondent’s appeal against that decision to the Upper Tribunal to be reconsidered in accordance with this judgment.

What next for Mr Vomero?

The case now gets whisked off to the Upper Tribunal, hopefully for a final determination to be made once and for all. Let’s just hope that the Upper Tribunal doesn’t decide to remit the case down to the First-tier Tribunal — otherwise this could go on and on.

PS: congratulations to Scotland’s Lord Reed, who was announced as the new President of the Supreme Court this morning.

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John Vassiliou is a partner at McGill & Co, a Scottish law firm specialising in immigration and nationality.

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