LG (Italy) v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns the decision of the Asylum and Immigration Tribunal ("AIT") dated 19 January 2007, which dismissed the Appellant's appeal against the Secretary of State's deportation order on grounds of public policy, public security, or public health. The deportation order was made under the Immigration (European Economic Area) Regulations 2000 and subsequently considered under the 2006 Regulations following transitional provisions. The Appellant, an Italian national residing in the United Kingdom since 1985, was subject to deportation due to his criminal convictions, including a serious offence of robbery and grievous bodily harm, resulting in a custodial sentence.

After initial dismissal of the appeal under the 2000 Regulations, a reconsideration was ordered under the 2006 Regulations. The Appellant claimed to have acquired a permanent right of residence based on continuous residence of ten years, triggering the highest protection level under the 2006 Regulations, which requires "imperative grounds of public security" for removal. The AIT found in favour of the Appellant on the residence criterion but upheld the deportation order, concluding that the Appellant posed a very serious public risk. Permission to appeal was granted to clarify the interpretation of the "imperative grounds of public security" test under the 2006 Regulations.

The Secretary of State later filed a respondent's notice challenging the AIT's finding on the residence period, arguing that time spent in prison should not count as residence for the purposes of the 10-year criterion. The Appellant remains in custody under immigration powers, with issues regarding bail and accommodation unresolved but not before the court.

Legal Issues Presented

1. Whether the AIT was entitled in law to hold that there were "imperative grounds of public security" for removing the Appellant, given that he satisfied the 10-year residence criterion under the 2006 Regulations.
2. Whether the AIT erred in law in holding that the Appellant satisfied the 10-year residence criterion, considering that he had spent seven years in prison prior to the appeal.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that the "imperative grounds of public security" test requires more than the ordinary risk of reoffending by a convicted criminal and should be interpreted narrowly, consistent with prior AIT decisions suggesting it relates to terrorism or similarly serious threats.
• He argued that he had acquired a permanent right of residence based on ten years of continuous residence, which should afford him the highest level of protection against deportation under the 2006 Regulations.

Respondent's Arguments

• The Secretary of State argued that the AIT had made a fundamental legal error by applying domestic law rather than the relevant EU legislation and guidance on free movement law.
• It was contended that time spent in prison should not count as lawful residence under the Regulations, thus challenging the Appellant's claim to the 10-year residence criterion.
• The Secretary of State offered to consent to remit the case to the AIT but sought to have the substantive legal point determined by the court first.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analyzed the hierarchy of protection levels in the 2006 Regulations, emphasizing the increasing stringency from general public policy grounds to "imperative grounds of public security" applicable after ten years' continuous residence. It noted the absence of statutory definition for "imperative grounds" and the inconsistencies in the Secretary of State's Operational Enforcement Manual regarding its meaning.

The court examined prior case law and EU Directive provisions, highlighting the need for a more stringent test than "serious grounds" for deportation after long residence. It found the AIT had failed to articulate a clear distinction between "serious" and "imperative" grounds and had not interpreted the Regulations in light of the Directive as required by EU law principles.

Regarding the residence criterion, the court recognized the legal complexity of whether time spent in custody counts towards continuous residence, noting that the Directive distinguishes between "lawful" residence (for the 5-year permanent residence right) and unqualified "residence" (for the 10-year test). The court expressed sympathy for the argument excluding prison time but declined to decide the issue due to lack of argument and evidence.

Ultimately, the court concluded that the appeal must be allowed on the first issue due to the AIT's failure to properly interpret "imperative grounds of public security" in accordance with the Directive and that the matter should be remitted to the AIT for reconsideration. The respondent's notice on the residence issue was dismissed without prejudice to future consideration.

Holding and Implications

The court allowed the appeal and remitted the case to the Asylum and Immigration Tribunal for a fresh determination consistent with the proper interpretation of Regulation 21(4) of the Immigration (European Economic Area) Regulations 2006, read in light of Directive 2004/38/EC.

The direct effect of this decision is that the deportation order against the Appellant must be reconsidered by the AIT applying the correct legal test for "imperative grounds of public security." The court recognized the complexity and importance of this issue and refrained from setting a definitive interpretation, leaving the Secretary of State and the tribunal to develop a coherent approach. No new binding precedent was established beyond the requirement for conformity with EU law and the need for clear legal analysis of the highest protection level under the Regulations.