Defining Legal Residence and Expulsion Grounds for EEA Nationals: Comprehensive Analysis of LG and CC (Italy) [2009] UKAIT 00024

Introduction

The case of LG and CC (Italy) [2009] UKAIT 00024 before the United Kingdom Asylum and Immigration Tribunal addresses pivotal issues surrounding the deportation of European Economic Area (EEA) nationals under the framework of Directive 2004/38/EC and the Immigration (European Economic Area) Regulations 2006. The appellants, LG and CC, Italian and Portuguese nationals respectively, challenged the Secretary of State's decisions to deport them from the UK based on their criminal convictions and residence status. The central legal questions pertain to the interpretation of "legal residence" for establishing permanent residence rights and the grounds upon which deportation can be justified, especially in the context of imprisonment.

Summary of the Judgment

The Tribunal examined whether LG and CC had acquired the right to permanent residence and the extent to which their periods of imprisonment affected their residence status. For LG, it was determined that he had been lawfully resident in the UK for over ten years prior to his imprisonment, thereby qualifying for permanent residence. However, his time in prison did not count towards the ten-year residence requirement necessary to invoke the highest level of protection against deportation, which requires "imperative grounds of public security." Consequently, the Tribunal found the deportation of LG unjustifiable based on proportionality and his long-term integration into UK society.

In contrast, CC failed to demonstrate five years of lawful residence in the UK, and his periods of imprisonment did not contribute towards this requirement. The Tribunal upheld the deportation decision for CC, concluding that he posed a serious threat to public policy due to his escalating criminal behavior and lack of effective rehabilitation.

Analysis

Precedents Cited

The judgment extensively references several key cases that influence the interpretation of residence and expulsion grounds:

LG (Italy) v Secretary of State [2008] EWCA Civ 190: Addressed whether imprisonment affects the recognition of permanent residence rights, emphasizing that time spent in prison does not count towards residence periods required under the Regulations.
OP (EEA; Colombia) [2008] UKAIT 00074: Confirmed that residence periods for permanent rights must be based on the exercise of Treaty rights, excluding time spent unlawfully, including imprisonment.
HR (Portugal) [2009] EWCA Civ 371: Reinforced that lawful residence under the Directive requires the exercise of rights conferred by the Treaty, and imprisonment disrupts this continuity.
Nazli [2000] ECR I-957 & Dogan [2005] ECR I-6237: Established that temporary imprisonment does not negate lawful residence status, provided the individual seeks to reintegrate post-release.
Orfanopoulos and Oliveri [2004] ECR I-5257: Expanded on the implications of imprisonment on workers' residence rights, indicating that legal residence should not be disrupted solely by temporary detention.
McCarthy v SSHD [2008] EWCA Civ 641: Clarified the interpretation of "legally resided" as compliance with Directive conditions rather than mere lawful presence.

Legal Reasoning

The Tribunal's legal reasoning hinged on interpreting "legal residence" as defined under Directive 2004/38/EC and the corresponding UK Regulations. It established that:

"Legal residence" requires continuous residence in the UK in accordance with the Directive, excluding periods of incarceration.
For permanent residence, a continuous ten-year residence is required, which also excludes time spent in prison.
Imprisonment does not equate to lawful exercise of rights under the Treaty, thus not contributing to residence periods needed for higher protection against deportation.
Deportation decisions are subject to a hierarchical framework of protection levels, with higher residency conferring more stringent standards for expulsion.
The principle of proportionality must be adhered to, ensuring deportation is a measured response to the individual's level of threat and degree of integration.

Applying these principles, the Tribunal differentiated the cases of LG and CC based on their residence status and the impact of imprisonment on their legal standing.

Impact

This judgment reinforces the interpretation of residence requirements for EEA nationals, particularly highlighting:

The exclusion of incarceration periods from residence calculations for permanent residence rights.
A stricter adherence to proportionality in deportation decisions, especially for long-term residents.
The establishment of clear thresholds for different levels of expulsion grounds, enhancing legal certainty.
Potential deterrence for authorities to deport individuals who have significantly integrated into UK society despite criminal convictions.

Future cases involving EEA nationals with criminal backgrounds will likely reference this judgment to assess residence status and the legitimacy of deportation grounds.

Complex Concepts Simplified

Legal Residence

Legal Residence: Refers to a person's lawful presence in the UK, exercising rights granted under the EU Treaty and Directive 2004/38/EC. It requires continuous residence without unlawful interruptions, such as periods of imprisonment.

Permanent Residence

Permanent Residence: A status granted to EEA nationals after five years of continuous legal residence, entitling them to reside indefinitely in the host Member State. It offers heightened protection against deportation, requiring more serious grounds to justify removal.

Public Policy and Public Security Grounds

Public Policy Grounds: Concerns actions that threaten societal interests, such as committing serious crimes.
Public Security Grounds: Involves threats to national security, including terrorism or activities deemed harmful to the safety of the public.

Principle of Proportionality

Proportionality: A legal principle ensuring that actions taken (like deportation) are appropriate and not excessively harsh relative to the situation, considering factors like the individual's integration and the severity of their conduct.

Conclusion

The judgment in LG and CC (Italy) [2009] UKAIT 00024 underscores critical interpretations of "legal residence" and the hierarchical grounds for deportation of EEA nationals. By excluding periods of imprisonment from residence calculations, the Tribunal reinforced the necessity for EEA nationals to maintain lawful exercise of their rights to secure protection against deportation. Furthermore, the emphasis on proportionality ensures that deportation remains a balanced measure, respecting long-term integration while addressing genuine threats to public policy and security. This case sets a precedent for future immigration decisions, promoting clarity and fairness in the treatment of EEA nationals within the UK's legal framework.

Appendix

Relevant Articles of the EU Treaty

Article 18
Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.

Article 39
Freedom of movement for workers shall be secured within the Community.
2. Such freedom of movement shall entail the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment.
3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health:

(a) to accept offers of employment actually made;
(b) to move freely within the territory of Member States for this purpose;
(c) to stay in a Member State for the purpose of employment in accordance with the provisions governing the employment of nationals of that State laid down by law, regulation or administrative action;
(d) to remain in the territory of a Member State after having been employed in that State, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission.

Directive 2004/38/EC

Preamble Excerpts:
(17) Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure.
(18) In order to be a genuine vehicle for integration into the society of the host Member State in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions.
(23) Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of their links with their country of origin.
(24) Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. In addition, such exceptional circumstances should also apply to an expulsion measure taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child, of 20 November 1989.

Relevant Provisions of the Directive

Article 1
Subject
This Directive lays down:

(a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;
(b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;
(c) the limits placed on the rights set out in (a) and (b) on grounds of public policy, public security or public health.

Article 7
Right of residence for more than three months
1. All Union citizens shall have the right of residence on the territory of another Member State for a period longer than three months if they:

(a) are workers or self-employed persons in the host Member State; or

Article 16
General rule for Union citizens and their family members
1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III....
2. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of twelve consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.
3. Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.

Article 28
Protection against expulsion
1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:

(a) have resided in the host Member State for the previous 10 years; or
(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.

Relevant Provisions of the Immigration (European Economic Area) Regulations 2006

Regulation 15
Permanent Right of Residence
(1) The following persons shall acquire the right to reside in the United Kingdom permanently:

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(2) Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.
(3) But this regulation is subject to regulation 19(3)(b).

Regulation 19
Exclusion and Removal from the United Kingdom
(3) A person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if:

(a) he does not have or ceases to have a right to reside under these Regulations; or
(b) he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health.

Regulation 21
Decisions Taken on Public Policy, Public Security and Public Health Grounds
(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who:

(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

(5) Where a relevant decision is taken on grounds of public policy or public security it shall be taken in accordance with the following principles:

(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention shall not justify the decision;
(e) a person's previous criminal convictions shall not in themselves justify the decision.