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Acquiring and losing free movement rights

Acquiring and losing free movement rights

By Rock Cohen
By Rock Cohen

The Court of Appeal recently gave judgment in a very important decision in European Union deportation cases, Secretary of State for the Home Department v FV (Italy) [2012] EWCA Civ 1199. The case concerns the question of whether or how far a period of imprisonment interferes with rights of residence by EEA nationals living in a Member State other than their own.

The UK Border Agency line has been that any period of imprisonment cannot be considered ‘residence’ within the meaning of the Treaties or Directive 2004/38/EC (‘the Citizen’s Directive’). Building on this, UKBA argued that what might be called the ‘enhanced’ rights of residence, permanent residence after five years and very strong protection from deportation after ten years, must be considered to be continuous periods of residence. If the relevant period is interrupted by a period of imprisonment then the clock starts again and, if already acquired, the right is lost and the person goes back to square one.

The immigration tribunal elected to follow the restrictive UK Border Agency approach, despite its obvious incompatibility with the intentions and purposes of EU law. The tribunal’s traditional hard line on EU rights has usually been endorsed to some extent by the higher domestic courts before eventually being overturned by the Court of Justice of the European Union, years later and after countless EU citizens and their family members have been denied their rights.

The UKBA-tribunal position was increasingly untenable following Lassal (Case C-162/09), Dias (Case C-325/09), Tsakouridis (Case C-145/09) and PI (Case C-349/09). The tribunal itself reconsidered to an extent in Jarusevicius (EEA Reg 21 – effect of imprisonment) Lithuania [2012] UKUT 120 (IAC) (one of mine) and then made references to the CJEU on this issue in the cases of Onuekwere (imprisonment – residence) Nigeria [2012] UKUT 269 (IAC) and MG (EU deportation – Article 28(3) – imprisonment) Portugal [2012] UKUT 00268 (IAC). The Court of Appeal has cut through all that and decided in FV (Italy) that the law is sufficiently clear to find in favour of the claimants on this question.

In essence, the Court of Appeal holds that in determining whether accrued residence rights are lost by virtue of a period of absence or imprisonment, the test to be applied is an integration test. A period of imprisonment does not of itself prevent a person accruing ten years residence for the purposes of enhanced protection against deportation, i.e. engaging the imperative grounds of public security test. Similarly, once ten years of residence has been acquired, a period of imprisonment does not necessarily cause the person to lose the ‘imperative grounds of public security’ safeguard against deportation.

The Court opines obiter that a period of imprisonment would disrupt the acquisition of permanent residence, but makes clear that once permanent residence is acquired it will not be lost through a period of imprisonment.

On the facts of the case — manslaughter conviction involving a very violent assault, 8 year sentence, previous convictions, medium risk of reoffending, actual reoffending and a further short period of imprisonment — the Court held that the tribunal could not reasonably find that there were imperative grounds of pubic security requiring deportation.

By the by, I’ve put together a list of basic CJEU cases on EU residence issues in The Closet, a section of the blog intended to act as a repository for useful links and authorities. The residence cases are a pain to look up all the time, so I thought it might be helpful to group the relevant links together.

Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder and editor of the Free Movement immigration law website.

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