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Prison time doesn’t count as “residence” in establishing enhanced EU law protection against deportation

Prison time doesn’t count as “residence” in establishing enhanced EU law protection against deportation

A couple of weeks ago I wrote about the judicial review case of Hafeez v Secretary of State for the Home Department & Anor [2020] EWHC 437 (Admin). In that judgment, handed down on 28 February, the High Court held that decisions to certify cases as “deport first, appeal later” must comply with EU law.

Mr Hafeez’s appeal had been progressing through the tribunal system in the background and has now reached the Court of Appeal. The outcome is reported as Hafeez v Secretary of State for the Home Department [2020] EWCA Civ 406. The headline finding is that time spent in prison does not positively count toward the ten-year residence period required to benefit from enhanced legal protection against deportation as an EU citizen.

The facts

Mr Hafeez is a German national who has lived in the UK since 2006 or 2007 (the exact year is disputed). In March 2015, after living in the UK for at most eight and a half years, he was sentenced to seven years’ imprisonment for the horrific and violent rape of a sex worker, committed when he was 17 years old.

The sentencing remarks, quoted by the Court of Appeal, had this to say about his offence and general character:

This offence was motivated, so it would appear, not only by you seeking your own sexual gratification, but also some form of revenge. And it showed a complete disdain for her as a person by reason of what she did to earn money… you have shown no remorse or acceptance of guilt… You are a highly intelligent and articulate young man, with an excellent academic record, who became for a period of time a law student with hopes of entering the legal profession. You have thrown away any prospect of such a career. But what is unusual about this case, certainly unusual in my experience, is the fact that you were prepared to use your intelligence and all those attributes with a degree of misplaced ingenuity in order to go to very considerable lengths to try to avoid justice. You cynically manipulated the criminal process to cover your tracks, using a degree of sophistication and cunning beyond that of many adults, and certainly beyond your chronological age. And that shows the sort of person you are.

The Home Office made a deportation order in December 2017, by which time Mr Hafeez had spent three and a half years in prison out of his ten or 11 years’ residence in the UK. These facts provide an important context to the reasoning which follows.

Imperative grounds of public security: threshold met

The highest level of legal protection against deportation is available to EU citizens who have lived in the UK for a continuous period of ten years. They can only be deported if there are “imperative grounds of public security”.

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Given the facts outlined above, it may come as no surprise to the casual reader that the Court of Appeal found that there were such grounds for deporting Mr Hafeez. But it was actually a close call. Mr Hafeez is described by the court as meeting the threshold “by quite a narrow margin”.

This is because the threshold of “imperative grounds” is generally reserved for terrorism offences, threats to national security, or serial targeted criminality. There needs to be a sufficiently serious threat to the public, or definable section of the public. Something truly heinous is required in order to distinguish this threshold from the other, lesser levels of EU law protection against deportation.

Mr Hafeez’s lack of remorse, use of deception and lack of rehabilitation appear to have been fatal to his claim that he did not pose a sufficiently serious threat to the public to meet the imperative grounds threshold.

What about the ten-year residence requirement?

Alert readers may be asking themselves how, with only seven or eight years’ residence prior to imprisonment, Mr Hafeez could be entitled to the highest level of protection in the first place. Benefitting from the “imperative grounds” test requires ten years’ continuous residence. So the Court of Appeal also had to decide whether his several years in prison counted as “residence”:

Regardless of whether the Appellant arrived in the United Kingdom in 2006 (as the Appellant submits) or in 2007 (as the Respondent submits), he has to rely on his period of three and a half years in custody in order to establish ten years’ residence… he cannot rely on imperative grounds protection unless his period of imprisonment counts positively towards his ten years’ residence.

This is a subtly different question to the issue of whether someone who has lived in the UK for over ten years, excluding prison time, has the continuity of that residence broken by a spell behind bars. In the recent case of Vomero, the Court of Justice of the European Union found that residence could be “continuous” for the purposes of the imperative grounds test even if it included a spell behind bars, depending on the circumstances of the case. 

But the Court of Justice in Vomero left open the question of whether someone falling short of ten years’ residence overall could rely on time spent in prison to get over the ten-year line in the first place.

The First-tier Tribunal gave Mr Hafeez the benefit of this legal doubt and considered the case on the basis that he qualified for the highest level of protection against deportation.

Imprisonment pauses residence clock

The Court of Appeal held that tribunal was wrong to do so, answering the question left unanswered in Vomero with a firm “no”:

periods of imprisonment… do not count positively towards establishing ten years’ residence. [Paragraph 37]

This finding flowed from the Court of Justice decision in MG (Portugal), and the fact that to conclude otherwise would create inconsistent and arbitrary results:

It seems contrary to common sense that one day in custody will reset the clock to zero and prevent an individual from relying on serious grounds protection, but that several years in custody can be used positively to establish ten years’ residence and, subject to an “overall assessment” of whether continuity has in fact been broken, entitle an individual to the imperative grounds protection. [Paragraph 40]

In short: imprisonment presses a pause button. Without counting the three and a half years in prison Mr Hafeez could not meet the ten-year threshold. As such, the lower threshold of serious grounds of public policy/security applied.

Since the higher test of imperative grounds was met, it follows that the lower test was also met. Mr Hafeez’s appeal against deportation was dismissed.

Comment

The case is helpful for two reasons:

  1. It provides an example of the kind of offending necessary to meet the imperative grounds threshold. That being said, EU deportation cases often come down to rehabilitation. Mr Hafeez’s rehabilitation was found to be “at best variable and… his risk of reoffending was high or, at best, medium”. This seems to have been his downfall. A similarly serious offence, with an offender who has shown remorse and rehabilitated, may not meet the imperative grounds threshold.
  2. It clarifies the effect of imprisonment on calculating the ten-year period required to benefit from this enhanced protection, answering the question the Court of Justice declined to answer in Vomero. If you don’t have ten years of prison-free residence, then you can’t benefit from the “imperative grounds” test.

Although not the result Mr Hafeez would have desired, the judgment nonetheless provides helpful clarification of a legal ambiguity that has plagued this area of law for quite some time.

Iain Halliday

Iain Halliday is a solicitor at McGill & Co, a Scottish law firm specialising in immigration and nationality law. Iain is also Vice Convenor of the Law Society of Scotland's Immigration and Asylum Committee and has been involved in drafting submissions to Parliamentary Committees at both Westminster and Holyrood.

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