Introduction

Secretary of State for the Home Department v. Franco Vomero (Italy) ([2019] UKSC 35) is a landmark judgment delivered by the United Kingdom Supreme Court on July 24, 2019. This case centers around Franco Vomero, an Italian national, whose deportation from the UK raised significant questions regarding the interplay between EU law provisions on the right of permanent residence and the grounds for expulsion based on public policy and security. The key issues revolved around whether Mr. Vomero had acquired a right of permanent residence under Directive 2004/38/EC and how his criminal convictions and imprisonment impacted this status.

Summary of the Judgment

The Supreme Court examined whether Mr. Vomero had attained a right of permanent residence by the date of his deportation decision in March 2007. The Court referenced previous judgments and EU directives to assess the continuity of Mr. Vomero’s legal residence, particularly considering his periods of imprisonment between 2001 and 2006, and subsequent convictions in 2012. The Supreme Court concluded that Mr. Vomero had not acquired the right to permanent residence by the time the deportation order was issued, primarily due to interruptions in his continuous legal residence caused by his incarceration. Consequently, Mr. Vomero did not benefit from the protections under Article 28(2) or Article 28(3) of Directive 2004/38/EC at the time of the deportation decision.

Analysis

Precedents Cited

The judgment extensively referenced several key precedents that shaped the Court’s interpretation:

• Onuekwere v Secretary of State for the Home Department ([2014] 1 WLR 2420): Clarified that imprisonment disrupts continuous legal residence, thereby affecting the acquisition of permanent residence rights.
• Secretary of State for Work and Pensions v Dias (Case C-325/09): Established that continuity of residence is essential for permanent residence and that disruptions due to non-compliance with residence conditions affect eligibility.
• Cetinkaya v Land Baden-Württemberg (Case C-467/02) and Aydinli v Land Baden-Württemberg (Case C-373/03): These cases dealt with the rights of third-country nationals under earlier association agreements and underscored that imprisonment does not affect rights of residence acquired through employment.
• Lassal (Case C-162/09): Demonstrated that periods of absence can impact the acquisition of permanent residence, reinforcing the necessity of uninterrupted legal residence.

These precedents collectively influenced the Court’s stance that continuous legal residence is fundamental to acquiring permanent residence and that interruptions, such as imprisonment, substantially undermine this continuity.

Legal Reasoning

The Court’s legal reasoning hinged on the interpretation of Directive 2004/38/EC, specifically Articles 16, 27, and 28. Article 16 outlines the conditions for acquiring the right of permanent residence after five years of continuous legal residence. Articles 27 and 28 address restrictions on the right of entry and residence based on public policy, security, or health grounds.

Lord Mance, delivering the judgment, emphasized that Mr. Vomero's periods of imprisonment interrupted his continuous legal residence, thereby preventing him from meeting the five-year requirement stipulated in Article 16(1) by the time of the deportation decision. The Court of Justice's interpretation in Onuekwere was pivotal, reinforcing that criminal convictions and imprisonment disrupt legal residence, affecting the acquisition of permanent residence rights.

Furthermore, the Court clarified that enhanced protection under Article 28(3)(a) is contingent upon possessing a right of permanent residence as defined by Articles 16 and 28(2). Since Mr. Vomero did not qualify for permanent residence at the time of deportation, he was ineligible for the enhanced protection measures.

Impact

This judgment has profound implications for immigration law within the UK and potentially other EU member states. It establishes a clear precedent that criminal behavior and subsequent imprisonment can severely impact an individual's eligibility for permanent residence and the associated protections against deportation. Future cases involving similar circumstances will likely reference this judgment to determine the continuity of legal residence and the eligibility for expulsion protections.

Additionally, the decision underscores the importance of maintaining uninterrupted legal residence for non-national family members of EU citizens seeking permanent residence, thereby influencing how immigration authorities assess and process such cases.

Complex Concepts Simplified

Right of Permanent Residence

This refers to the right granted to individuals who have legally resided in a member state for five continuous years, allowing them to live indefinitely without the conditions tied to temporary residence permits.

Articles 27 and 28 of Directive 2004/38/EC

These articles deal with the restrictions on the right of entry and residence in a host member state on grounds of public policy, security, or health. Article 28 specifically outlines the conditions under which a person may be expelled and the levels of protection they are entitled to based on their degree of integration.

Continuous Legal Residence

This concept emphasizes that to qualify for permanent residence, an individual must have lived in the host country without interruptions caused by legal breaches, such as criminal convictions leading to imprisonment.

Conclusion

The Supreme Court’s decision in Secretary of State for the Home Department v. Franco Vomero solidifies the principle that the acquisition of permanent residence is contingent upon uninterrupted legal residence over a specified period. Criminal activities and subsequent imprisonment can disrupt this continuity, thereby negating eligibility for enhanced protections against deportation under EU directives. This judgment not only provides clarity on the interpretation of Directive 2004/38/EC but also sets a vital precedent for the treatment of similar immigration and deportation cases in the future. The ruling underscores the delicate balance between upholding public policy and security interests and protecting the residency rights of individuals with established ties to the host country.