In recent years, EEA nationals have been looking for a silver lining concerning the protections confined unto them by relevant EU Regulations. CJEU judgements, combined with domestic law, succeeded in muddying the waters in providing clear clarification to the rights of EEA nationals. This is particularly true for EEA nationals who have been seeking protection against expulsion by a Host Member state as a result of a previous prison sentence.
A recent decision in the Upper Tribunal provided a start in clarifying whether a person who served a sentence of imprisonment breaks his 10-year period of continuous residence in the UK under the Citizen Directive. Thus, excluding him from entitlement to enhanced protection against deportation.
The Appellant left Poland and entered the UK in 2007. He had been residing in the UK for more than eleven years at the date of the decision to deport him on 5 July 2018. He has six convictions for various drink driving offences between 5 September 2011 and 18 May 2018. He received three custodial sentences. He also received a total of 280 days of imprisonment sentence but only spent actual time in prison for 123 days.
The question for the judge was whether the Appellant’s period of imprisonment (123 days) was sufficient to break his integrative links with the UK such that he was not entitled to “imperative grounds” enhanced protection under Regulation 27(4) Immigration (EEA) Regulation 2016.
First-tier Tribunal Decision
The Appellant appealed to the First-tier Tribunal the deportation order made against him.
Unfortunately, the First Tribunal judge dismissed the Appellant’s appeal.
The judge mainly used the authority in, Warsame v Secretary of State for the Home Department. Warsame held that periods of imprisonment are excluded when calculating the 10- year period of residence and that it also breaks the continuity of residence under Regulation 27(4).
In the Appellant’s case, he did not have ten years’ continuous residence between 2007 (when he first arrived in the UK) and 28 February 2016 (when he was first imprisoned). If he had established ten years’ continuous residence before his imprisonment, it would also be necessary for him to show that integrating links with the UK had not been broken by imprisonment.
Since the Appellant acquired rights of permanent residence in March 2015, he was given medium protection against expulsion under Regulation 27(3). Namely, the deportation order must be justified on serious grounds of public policy and public security.
Appellant’s appeal and Upper Tribunal Decision
The Appellant appealed against the First-tier Tribunal decision on the grounds of error of law.
He argued that he is entitled to the highest level of protection against expulsion under Regulation 27(4)(a).
He argued that he does not need to establish ten years’ continuous residence before his imprisonment. He only needs to prove whether he had forged the necessary integrative links over the nine years prior to imprisonment and whether the periods of imprisonment (123 days of actual imprisonment) were sufficient to break the continuity of residence (over ten years) at the date of the relevant decision.
The Upper Tribunal allowed the appeal.
The Upper Tribunal held that the correct authority to apply in this case is not Warsame but B v Land Baden-Wurttemberg (C-316/16) and Secretary of State for the Home Department v Vomero (C‑424/16). These are the Upper Tribunal’s findings:
- It is an error of law for the First-tier Tribunal only to consider the totality of the sentences of imprisonment (280 days), instead of the actual time spent in the prison (123 days).
- The case Baden-Wüttermberg and Vomero is clear to state that in deciding whether the Appellant is entitled to enhanced protection, there must be an overall assessment of the Appellant’s integration in the UK. Furthermore, time in imprisonment does not automatically break his integral links in the UK.
- The Upper Tribunal conducted an overall assessment of the Applicant’s integration in the UK. They have taken into account the Appellant’s
- Use of his Treaty rights
- Period of residence in the UK
- The nature and seriousness of his offence
- Offending behaviour
- Circumstances in which the offence was committed
- Period of imprisonment
- Evidence that he may be developing some insight into the seriousness of his past conduct
Taken in to account the factors above, the Upper Tribunal is convinced that his period of imprisonment of 123 days taken together with the Appellant’s offending behaviour is not sufficient to break his integrative links with the UK such that it could not be said that he had not acquired ten years’ continuous residence in the UK.
The Upper Tribunal found that the Appellant is entitled to enhanced protection against expulsion and his criminal convictions are not sufficiently serious to meet the imperative grounds of public policy threshold.
This case is progress in clarifying EEA national’s rights under the Citizen Directive. It acts as a foundation to future cases which concerns the breakage of an EEA national’s integral links in the UK. Taking into account the nature and seriousness of the offence committed by an EEA national, a few months in prison is not enough to say that he does not deserve the right for enhanced protection confined under the Citizens’ Directive.
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