Secretary of State for the Home Department v Franco Vomero (Italy) [2016] UKSC 49

An Italian national living in the UK since 1985 killed his flatmate in 2001 and was imprisoned. The Secretary of State sought to deport him. The Supreme Court referred questions to the CJEU regarding whether enhanced protection from expulsion under Directive 2004/38 requires permanent residence.

Facts

Franco Vomero, an Italian national born in 1957, came to the United Kingdom on 3 March 1985 with his future wife (a UK citizen), whom he married in August 1985. They had five children. He accumulated convictions in both Italy and the UK between 1987 and 1999. After his marriage broke down in 1998, he moved in with Edward Mitchell. On 1 March 2001, following a fight, he killed Mr Mitchell by striking him on the head with weapons including a hammer and strangling him with electrical flex. He was convicted of manslaughter by reason of provocation and sentenced on 2 May 2002 to eight years’ imprisonment, being released in early July 2006.

By decision of 23 March 2007, the Secretary of State determined to deport him under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006, giving effect to articles 27 and 28 of Directive 2004/38/EC. Following release, he committed further offences resulting in short sentences of 16 weeks and 12 weeks.

Issues

The Supreme Court identified two principal issues:

• Whether enhanced protection under article 28(3)(a) of Directive 2004/38 is available to a Union citizen who does not enjoy a right of permanent residence under article 16 (and therefore does not enjoy the lesser protection under article 28(2)).
• So far as relevant, what are the principles on which protection is available under articles 28(2) and 28(3)(a), including the proper interpretation of the requirement of residence “for the previous ten years” and its relationship to the overall assessment of an integrative link.

Arguments

Secretary of State

The respondent had never acquired a right of permanent residence because, by reference to article 40 of the Directive and the CJEU’s judgments in Lassal and Dias, no such right could be acquired before 30 April 2006. As at that date, he had been in prison for over five years and remained so until July 2006. Following Onuekwere (Case C-378/12), periods of imprisonment cannot be counted toward acquisition of a right of permanent residence and interrupt continuity of residence. Without a right of permanent residence, enhanced protection under article 28(3)(a) is unavailable.

Respondent

Mr Husain QC submitted, relying on Tsakouridis (Case C-145/09) and MG (Case C-400/12), that the requirement of residence “for the previous ten years” involves an overall assessment of the degree of integration at the date of the deportation decision. While there must in principle have been ten continuous years of residence and imprisonment will not normally count toward integration, a period of imprisonment immediately preceding the deportation decision will not necessarily mean that prior integration is lost. Otherwise, a delayed deportation decision could unfairly prejudice a Union citizen. The respondent argued that possession of a right of permanent residence is not a precondition for enhanced protection.

Judgment

Lord Mance, giving judgment for the Court, accepted that the respondent had not acquired any right of permanent residence before the decision to deport, since the only possible five-year qualifying period was occupied by his imprisonment, and Onuekwere establishes that imprisonment interrupts continuity of residence and cannot count toward acquiring permanent residence.

The Court analysed Tsakouridis and MG carefully. In Tsakouridis, the CJEU stated that “the decisive criterion is whether the Union citizen has lived in that member state for the ten years preceding the expulsion decision” and required an “overall assessment” of the person’s situation, taking into account absences and time spent in prison to determine whether “the integrating links previously forged with the host member state have been broken.” In MG, the CJEU confirmed that periods of imprisonment cannot in principle be taken into account for granting enhanced protection, but that residence prior to imprisonment may be considered as part of the overall assessment.

The Court observed that the calculations under articles 16(1) and 28(3)(a) are different but how different is unclear. The five-year period for permanent residence is expressly continuous and broken by imprisonment, but once acquired is lost only by absence of two years. The ten-year period under article 28(3)(a) is only “in principle” continuous and may be non-continuous. The Court found the requirement of an overall assessment of integration to be “open in its meaning and effect” and conceptually distinct from residence for the previous ten years.

The Court of Appeal’s analysis was held to be unsustainable because it had been conducted on the erroneous basis that the respondent had a permanent right of residence. The Tribunal had similarly failed to conduct any review, assuming the ten-year period was established.

A majority of the Supreme Court favoured the view that possession of a right of permanent residence is not required for enhanced protection under article 28(3)(a), but a minority regarded the position as unclear. The Court accordingly referred to the Court of Justice the following questions:

• Whether enhanced protection under article 28(3)(a) depends upon possession of a right of permanent residence within articles 16 and 28(2);
• If not, whether the ten-year period of residence is a simple calendar period including absences or imprisonment, or a potentially non-continuous period aggregating periods when the person was not absent or imprisoned;
• What the true relationship is between the ten-year residence test in article 28(3)(a) and the overall assessment of an integrative link.

Implications

The judgment highlights significant interpretive uncertainty surrounding the tiered system of protection against expulsion under Directive 2004/38. The progressive structure of article 28 – basic protection under article 28(1), heightened protection requiring “serious grounds” for those with permanent residence under article 28(2), and enhanced protection requiring “imperative grounds of public security” for those resident for the previous ten years under article 28(3)(a) – raises questions about whether each level presupposes the lower one.

For practitioners, the case clarifies that imprisonment will generally prevent acquisition of permanent residence under article 16, applying Onuekwere. It also confirms that the Court of Appeal’s approach of treating long pre-imprisonment residence as automatically preserving an integrative link is too generous; a proper overall assessment is required, considering the particular history of the individual concerned, including the length of pre-residence abroad, the nature of family links retained, criminal history and conduct following release.

The references to the CJEU mean that significant questions about the scope of enhanced protection for serious offenders without permanent residence remain unresolved, with potentially substantial consequences for the deportation of EU nationals who have served lengthy custodial sentences. The case demonstrates that lengthy residence prior to imprisonment will not automatically secure enhanced protection where intervening custody undermines the integrative link.

Verdict: The Supreme Court allowed the appeal to the extent that the Court of Appeal’s analysis could not stand, holding that the respondent had not acquired a right of permanent residence. The Court referred three questions to the Court of Justice of the European Union concerning the interpretation of article 28(3)(a) of Directive 2004/38/EC, in particular whether enhanced protection depends upon possession of a right of permanent residence, and the proper construction of the ten-year residence requirement and its relationship to the overall assessment of integrative links.

Source: Secretary of State for the Home Department v Franco Vomero (Italy) [2016] UKSC 49