Impact of Criminal Convictions on Continuous Residence under Immigration (EEA) Regulations: Hussein v. Secretary of State for the Home Department [2020]

Introduction

The case of Hussein v. Secretary of State for the Home Department ([2020] EWCA Civ 156) adjudicated by the England and Wales Court of Appeal (Civil Division) on February 13, 2020, presents a critical examination of the intersection between criminal convictions and immigration law, particularly focusing on the continuous residence requirements under the Immigration (European Economic Area) Regulations 2006. The appellant, born in Somalia and subsequently naturalised as a Dutch citizen, sought to challenge a deportation order issued against him on grounds related to public policy and security. Central to the case were the questions of whether periods of incarceration interrupted his continuous residence in the UK and whether his criminal history justified his removal despite his established ties to the country.

Summary of the Judgment

The appellant had been residing in the UK since December 1998, asserting continuous residence and substantial connections, including family ties and a child. However, his history of criminal convictions and periods in custody raised concerns leading to a deportation order under Regulation 19(3)(b) of the Immigration (EEA) Regulations 2006, citing serious grounds of public policy and security. The First-Tier Tribunal (FTT) and subsequently the Upper Tribunal (UT) dismissed his appeals, leading the case to the Court of Appeal. The primary issues revolved around whether the appellant had ten years of continuous residence, thereby entitling him to an enhanced protection under Regulation 21(4), and whether the deportation was justified under the existing regulations. The Court of Appeal ultimately dismissed the appeal on the first ground concerning ten years' residence but allowed it on the second ground, remitting the case for reconsideration regarding serious grounds of public policy or security.

Analysis

Precedents Cited

The judgment extensively referenced several pivotal cases that shaped the court's reasoning:

MG (Portugal) v Secretary of State for the Home Department ([2014] 1 WLR 2441): Addressed the treatment of periods of imprisonment in calculating continuous residence, indicating that such periods generally interrupt residence.
Onuekwere v Secretary of State for the Home Department ([2014] 1 WLR 2420): Highlighted that for a five-year residence period, imprisonment resets the residence clock.
Land Baden-Wurttemberg v Tsakouridis ([2011] INLR 415): Emphasized the need for an overall assessment of an individual’s integrative links with the host state when periods of absence or imprisonment are involved.
B v Land Baden-Wurttemberg and Vomero case ([2019] QB 126): Clarified that periods of imprisonment require an overall assessment to determine if integrative links were severed, impacting eligibility for enhanced protection.
R (Essa) v Upper Tribunal ([2012] EWCA 1718) and SSHD v Dumliauskas & others ([2015] EWCA Civ 145): Addressed rehabilitation prospects and the risks posed by the appellant’s continued presence.

These precedents collectively underscore the judiciary's approach to balancing individual rights against public policy and security considerations, especially in the context of migration and criminal justice.

Legal Reasoning

The Court of Appeal meticulously dissected the legal framework governing the appellant’s case:

Regulation Interpretation: The court examined the definitions and applications of Regulations 15(1)(a), 19(3)(b), 21(3), and 21(4) of the Immigration (EEA) Regulations 2006. A critical focus was on determining whether the appellant’s periods in custody interrupted his continuous residence, thereby affecting his eligibility for enhanced protection.
Continuous vs. Enhanced Residence: The differentiation between merely five years of continuous residence (entitling permanent residence) and ten years (entitling enhanced protection) was pivotal. The court evaluated whether the appellant’s incarceration periods disrupted this continuum.
Overall Assessment: Emphasizing the CJEU’s stance, the court highlighted that determining whether integrative links were severed requires a holistic evaluation of the appellant's situation at the time of the deportation decision. Factors include the nature of offenses, conduct during imprisonment, and the strength of ties to the UK.
Proportionality and Public Policy: The court scrutinized whether deportation was proportionate to the threat posed by the appellant, considering his criminal history and potential for rehabilitation.

Ultimately, the court found that while the appellant failed to establish ten years of continuous residence, there remained unresolved questions regarding the justification of his deportation on serious public policy or security grounds. This necessitated a remittal for further examination.

Impact

The judgment has significant implications for immigration and criminal law:

Clarification of Residence Calculations: Strengthens the precedent that criminal convictions and periods of imprisonment can disrupt continuous residence, impacting eligibility for enhanced protection.
Emphasis on Integrative Links: Reinforces the necessity for a comprehensive assessment of an individual’s integration within the host state, beyond mere residence duration.
Guidance for Future Cases: Offers a framework for tribunals to assess deportation cases involving criminal elements, balancing individual rights with public safety concerns.
Influence on Legislative Interpretation: May influence future legislative amendments or clarifications regarding the treatment of criminal convictions in immigration contexts.

By remitting the case for further consideration on serious public policy or security grounds, the judgment underscores the judiciary's role in ensuring that deportation decisions are both legally sound and proportionate to the individual's circumstances and threats posed.

Complex Concepts Simplified

The judgment encompasses several intricate legal concepts that are pivotal for understanding its implications:

Continuous Residence: Refers to an uninterrupted period during which an individual legally resides in a host state. Interruptions, such as periods of imprisonment, can reset the residence clock, affecting eligibility for certain protections.
Enhanced Protection: Entails a higher level of protection against deportation, typically invoked after ten years of continuous residence, requiring justification on more stringent grounds like imperative public security.
Integrative Links: The social, cultural, economic, and familial connections an individual has with the host country, which are crucial in determining the impact of deportation.
Proportionality: A legal principle ensuring that the measures taken (e.g., deportation) are appropriate and not excessively harsh in relation to the individual's actions and circumstances.
Overall Assessment: A holistic evaluation of an individual's situation, considering various factors such as behavior, rehabilitation prospects, and societal integration, to inform deportation decisions.
Directive 2004/38/EC: A European Union directive establishing the right of EU citizens and their family members to move and reside freely within the member states, which the UK’s regulations were implementing.

Conclusion

The Hussein v. Secretary of State for the Home Department case serves as a landmark in delineating the boundaries between criminal conduct and immigration status under the UK's Immigration (EEA) Regulations 2006. By highlighting the complexities involved in assessing continuous residence amidst criminal convictions, the judgment reinforces the necessity for a balanced approach that safeguards public policy and security while respecting individual rights and integration. The decision to remit the case for further examination underscores the judiciary's commitment to ensuring that deportation decisions are meticulously justified, considering both legal standards and humanitarian factors. Consequently, this ruling not only impacts the appellant but also sets a precedent that will guide future jurisprudence in navigating the delicate interplay between immigration law and criminal justice.