Factual and Procedural Background
The Respondent, an Italian national who moved to the United Kingdom in 1985, married a UK citizen, and raised five children, amassed several criminal convictions between 1987 and 2001. In 2001 he killed Individual A and, following a jury verdict of manslaughter by provocation, received an eight-year prison sentence. After completing the custodial element of that sentence in July 2006, he was detained under immigration powers.
On 23 March 2007 (maintained on 17 May 2007) the Appellant—Secretary of State—issued a deportation decision under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006, transposing Articles 27 and 28 of Directive 2004/38/EC (“the Directive”). The Respondent appealed unsuccessfully before the Asylum and Immigration Tribunal and then to the Court of Appeal. The Court of Appeal’s ruling led to the present appeal before the Supreme Court.
In July 2016 the Supreme Court referred three questions of EU law to the Court of Justice of the European Union (“CJEU”). The CJEU delivered its judgment in April 2018 (Joined Cases C-424/16 & C-316/16), after which the Supreme Court held a further hearing in February 2019 and now issues the instant decision.
Legal Issues Presented
- Whether enhanced protection from expulsion under Article 28(3)(a) of the Directive is available only to Union citizens who already possess a right of permanent residence under Article 16 and Article 28(2).
- If permanent residence is not required, how the “previous ten years” residence under Article 28(3)(a) is to be calculated (continuous calendar period including imprisonment; a composite period excluding imprisonment; and its relationship to the assessment of integration).
Arguments of the Parties
Appellant's Arguments
- The Respondent’s imprisonment between 2001 and 2006 prevented him from accumulating five years’ continuous legal residence, so he had no right of permanent residence when the deportation order was made in March 2007.
- Without permanent residence, the Respondent could not claim the enhanced or very high levels of protection under Articles 28(2) or 28(3)(a); only the basic protection of Articles 27(2) and 28(1) applied.
Respondent's Arguments
- Enhanced protection under Article 28(3)(a) is available even without permanent residence; the decisive factor is an overall assessment of ten years’ integration immediately preceding the deportation decision.
- Imprisonment immediately preceding the decision does not automatically sever integration; his pre-2001 residence should count toward the ten-year test.
- In light of the CJEU’s preliminary remarks, he should be permitted to argue that he had, or has since acquired, a right of permanent residence.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Ziolkowski v Land Berlin |
Defines “legal residence” for Article 16(1) purposes as residence satisfying Directive conditions. |
Adopted to emphasise that only residence compliant with Article 7(1) counts toward permanent residence. |
| Secretary of State for Work and Pensions v Lassal |
Pre-30 April 2006 five-year legal residence periods count toward acquiring permanent residence. |
Used to show that earlier lawful residence assists in acquisition but does not negate later interruptions. |
| Secretary of State for Work and Pensions v Dias |
Article 16(4) two-year absence rule applies by analogy to gaps in legal residence. |
Supported the view that post-residence periods lacking legality prevent acquisition of permanent residence. |
| Onuekwere v Secretary of State for the Home Department |
Imprisonment interrupts continuity and cannot be counted toward the five-year period. |
Central authority for treating the Respondent’s 2001–2006 imprisonment as breaking continuity. |
| Secretary of State for the Home Department v MG (Portugal) |
Referenced as background in procedural timeline. |
Not analysed in depth; mentioned in chronology of adjournments. |
| Cetinkaya v Land Baden-Württemberg & Aydinli v Land Baden-Württemberg |
Under Association Decision 1/80, imprisonment does not necessarily terminate certain residence rights. |
Raised by Advocate General to contrast with Directive 2004/38 case law; not adopted by Court. |
| B v Land Baden-Württemberg |
Determines temporal point for assessing ten-year residence; updates may be needed if enforcement delayed. |
Cited to remind the tribunal of the need for an updated public-policy assessment on remittal. |
Court's Reasoning and Analysis
1. Graduated Protection Framework. The Court reviewed Article 28’s tiered system: general protection (28(1)), serious-grounds protection for permanent residents (28(2)), and imperative-grounds protection for those resident for the previous ten years (28(3)(a)). Integration depth determines the applicable tier.
2. Answer from CJEU. The CJEU held that enhanced protection under Article 28(3)(a) is contingent upon first possessing permanent residence under Article 16. Consequently, the Supreme Court did not need to address how the ten-year period is calculated unless that prerequisite is met.
3. Was permanent residence acquired by 23 March 2007? Drawing on Dias and Onuekwere, Judge Mance (whose reasoning the present Court endorsed) concluded that the Respondent’s 2001–2006 imprisonment broke the continuity required for permanent residence. The five-year clock could only start on 3 July 2006, after release, and had not run by March 2007. Therefore Articles 28(2) and 28(3) were inapplicable at the decision date.
4. Effect of CJEU’s Preliminary Remarks. The CJEU merely noted it lacked full information on the Respondent’s current status; this did not undermine Judge Mance’s analysis concerning the position as at 2007.
5. Potential Later Acquisition. Owing to domestic procedural rules (section 85(4) of the Nationality, Immigration and Asylum Act 2002 and Schedule 2, paragraph 1 of the 2016 EEA Regulations), the tribunal on remittal may consider whether the Respondent has since met the five-year requirement and thereby gained permanent residence.
6. Updated Public-Policy Assessment. Consistent with B v Land Baden-Württemberg, if enforcement of deportation is delayed, the tribunal must reassess whether a “genuine, present and sufficiently serious threat” still exists.
Holding and Implications
Holding: The appeal is ALLOWED. The Court declares that, as of 23 March 2007, the Respondent did not benefit from the protections in Articles 28(2) or 28(3)(a) of Directive 2004/38. The matter is remitted to the Upper Tribunal for reconsideration consistent with this judgment.
Implications: The decision confirms that enhanced expulsion protection under Article 28(3)(a) is available only to Union citizens who already hold permanent residence, and that imprisonment interrupts the acquisition of that status. The ruling primarily affects the parties; it clarifies but does not revolutionise existing CJEU jurisprudence.