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Detention in a young offender institution can nullify enhanced protection against deportation
Credit: Scottish Prison Service

Detention in a young offender institution can nullify enhanced protection against deportation

Detention in a young offender institution has much the same impact on an EU citizen’s enhanced protection against deportation as imprisonment in an adult jail, the Court of Appeal has held. The case is Secretary of State for the Home Department v Viscu [2019] EWCA Civ 1052.

EU deportation law

A criminal facing deportation from the UK is better placed to fight it if they are a European Union citizen. In particular, Europeans living in the UK for ten years or more benefit from an enhanced level of legal protection. In such cases, the Home Office must show that there are “imperative grounds of public security” to justify the person’s expulsion.

There are sometimes arguments about whether someone has built up their ten years. The Court of Justice of the European Union has held that being in prison does not necessarily restart the ten-year clock. Or rather, it does “in principle”, but there must still be an “overall assessment” of the person’s “integrative links”. Quoting the Court of Appeals’ summary of the law:

44. The CJEU jurisprudence to which I have referred establishes (i) that the degree of protection against expulsion to which a Union national resident in another member state is entitled under the Directive is dependent upon the degree of integration of that individual in the member state; (ii) that, in general, a custodial sentence is indicative of a rejection of societal values and thus of a severing of integrative links with the member state but (iii) that the extent to which there is such a severing of integrative links will depend upon an overall assessment of the individual’s situation at the time of the expulsion decision.

That confusing subtle approach is reflected in regulations 3(3) and 3(4) of the EEA Regulations 2016: continuity of residence is broken by imprisonment, except where it isn’t.

Youth imprisonment and the ten-year residence period

Is it the same for detention in a young offender institution? That was the sole question in Mr Viscu’s case. The young Romanian had spent an lamentable period of his mid-teens in detention for a string of offences committed in the UK by the age of 17.

The Home Office wanted to deport him “as a persistent offender and on serious grounds of public policy”. It accepted that he had permanent residence, and therefore the medium level of protection against expulsion, but argued that “although the respondent had lived in the United Kingdom since 2007, he was not entitled to enhanced protection under regulation 27(4), because the time he had spent in custody broke the continuity of lawful residence”.

The EEA Regulations say that “continuity of residence is broken when… a person serves a sentence of imprisonment”. But in sentencing law, youth detention is not technically “imprisonment” at all. The First-tier and Upper Tribunals accordingly held that Mr Viscu’s time in custody had not interrupted his ten-year period of residence and entitlement to enhanced protection against deportation.

The Home Office appealed, and won. Lord Justice Flaux held that

45. Although the jurisprudence refers most frequently to “imprisonment” rather than “custodial sentence” I am quite satisfied that the rationale for the principle that, in general, a custodial sentence is indicative of a rejection of societal values and a severing of integrative links so as to interrupt the required continuity of residence, is equally applicable to sentences of detention in a YOI as it is to imprisonment. This is because, on a proper analysis, it is not the sentence which indicates rejection of societal values but the offending which is sufficiently serious to warrant a custodial sentence whether of imprisonment or some other form of detention.

While the letter of the domestic law on sentencing distinguishes between imprisonment and youth detention, there was “no justification” for doing the same in this context.

That leaves the Home Office to carry out an “overall assessment” of Mr Viscu’s case, which it hadn’t actually done, before the appeal is decided again in the Upper Tribunal.

CJ McKinney

CJ is Free Movement's deputy editor. He's here to make sure that the website is on top of everything that happens in the world of immigration law, whether by writing articles, commissioning them out or considering submissions. When not writing about immigration law, CJ covers wider legal affairs at the website Legal Cheek and on Twitter: follow him @mckinneytweets.

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