Secretary of State for the Home Department v Franco Vomero (Italy) [2019] UKSC 35

An Italian national resident in the UK since 1985, imprisoned for manslaughter in 2001, faced deportation in 2007. The Supreme Court held he had not acquired permanent residence, so could not claim enhanced protection against expulsion under the Citizens' Directive.

Facts

Mr Franco Vomero, an Italian national, moved to the United Kingdom in 1985 with his future British wife, with whom he had five children. Between 1987 and 2001 he received several convictions, two of which resulted in short terms of imprisonment in 1991 and 1992. In March 2001, following the breakdown of his marriage, he killed his flatmate, Edward Mitchell, and was convicted of manslaughter by reason of provocation, receiving an eight-year sentence. He was released on licence in July 2006 and subsequently detained under immigration powers.

On 23 March 2007, the Secretary of State decided to deport Mr Vomero under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006, implementing Directive 2004/38/EC. Following release, Mr Vomero committed further offences resulting in custodial sentences in 2012. The Court of Appeal had held that Mr Vomero was entitled to enhanced protection against expulsion under article 28(3)(a) of the Directive. The Secretary of State appealed to the Supreme Court, which referred questions to the Court of Justice of the European Union.

Issues

The central issues before the Supreme Court, following the CJEU’s preliminary ruling, were:

• Whether enhanced protection against expulsion under article 28(3)(a) of Directive 2004/38/EC depends upon the prior acquisition of a right of permanent residence under article 16 and article 28(2).
• Whether Mr Vomero had acquired a right of permanent residence by the date of the decision to deport him on 23 March 2007, given his period of imprisonment between 2001 and 2006.

Arguments

Secretary of State

The Secretary of State argued that because Mr Vomero was in prison between 2001 and 2006, he had not acquired a right of permanent residence under article 16 by the date of the deportation order. Consequently, while he enjoyed protection under articles 27(2) and 28(1), he did not benefit from the heightened protections in articles 28(2) or 28(3)(a).

Respondent

Mr Vomero contended that the ten-year residence requirement in article 28(3)(a) involved an overall assessment of integration at the date of the deportation decision, and that a period of imprisonment preceding that decision would not necessarily sever prior integrative links. He also argued, following the CJEU ruling, that he had a “notional” right of permanent residence acquired before 30 April 2006, which had not been lost by more than two years’ imprisonment.

Judgment

The Court of Justice held that article 28(3)(a) enhanced protection is available only to Union citizens who first satisfy the eligibility condition in article 28(2), namely possession of a right of permanent residence under article 16. The protection scheme is graduated, reflecting increasing degrees of integration.

Lord Reed, with whom the other Justices agreed, rejected the notion of a “notional” right of permanent residence, noting that EU law distinguishes between acquisition and subsequent loss of such a right. Following Lassal and Dias, no right of permanent residence could be acquired before 30 April 2006, the transposition deadline. Applying Onuekwere v Secretary of State for the Home Department, periods of imprisonment cannot count towards the five-year continuous legal residence required under article 16, and interrupt continuity of residence.

Although Mr Vomero had completed more than five years’ continuous legal residence before his imprisonment in 2001, the rule in article 16(4) (loss of permanent residence by absence exceeding two consecutive years) had to be applied by analogy, as in Lassal and Dias. Because imprisonment weakens the integrative link, Mr Vomero’s imprisonment for more than two years prior to 30 April 2006 prevented him from acquiring a right of permanent residence on that date. The five-year clock could restart no earlier than 3 July 2006 on his release, and further imprisonment in 2012 would interrupt continuity.

The court therefore upheld Lord Mance’s earlier conclusion that Mr Vomero had not acquired a right of permanent residence by the date of the decision to deport him. The Court expressly refrained from deciding whether imprisonment after acquisition of permanent residence would lead to its loss, noting the Advocate General’s view that Onuekwere reasoning may not apply to forfeiture.

The Supreme Court allowed the appeal, granted a declaration that neither article 28(2) nor 28(3) applied to Mr Vomero as at 23 March 2007, and remitted the matter to the Upper Tribunal. On remittal, the tribunal must consider whether Mr Vomero has since acquired a right of permanent residence (by reference to the date of hearing under domestic law), and in any event whether grounds of public policy or public security under article 28(1) still justify expulsion, following the guidance in B v Land Baden-Württemberg that updated assessments of present threat may be required where enforcement is deferred.

Implications

The decision confirms that the three tiers of protection against expulsion in article 28 of Directive 2004/38/EC form a graduated, cumulative structure: enhanced protection under article 28(3)(a) is conditional on first acquiring a right of permanent residence under article 16. A Union citizen with lengthy residence but no permanent residence right cannot leapfrog directly to the highest tier of protection.

The judgment reinforces the principle established in Onuekwere that imprisonment is incompatible with the integrative purpose underlying permanent residence, interrupting continuity of residence and preventing its acquisition. By analogical application of article 16(4), a pre-2006 period of imprisonment exceeding two years after completion of five years’ continuous legal residence prevents acquisition of permanent residence on 30 April 2006.

The court deliberately left open the distinct question whether imprisonment of a person who has already acquired permanent residence results in its loss, signalling that different reasoning may apply to forfeiture as opposed to acquisition. This remains an unresolved point.

The judgment also highlights that, on remittal, tribunals must consider subsequent factual developments, including whether permanent residence has since been acquired, and must undertake a fresh assessment of whether the individual continues to represent a genuine, present threat where enforcement has been delayed. This matters to EU nationals (pre-Brexit) facing deportation with criminal histories, and to practitioners advising on the interaction between imprisonment and residence rights under EU free movement law.

Verdict: Appeal allowed. The Supreme Court declared 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 remitted the appeal to the Upper Tribunal for reconsideration.

Source: Secretary of State for the Home Department v Franco Vomero (Italy) [2019] UKSC 35