The Supreme Court on permanent residence and deportation of EEA nationals

EEA nationals are entitled to live in the UK providing they are exercising treaty rights. However, whilst living in the UK, they are expected to abide by the UK’s laws. If an EEA national commits a criminal offence in the UK, they risk deportation (also referred to as ‘exclusion’ or ‘expulsion’) under regulation 19 of the Immigration (EEA) Regulations 2006.

There are various hurdles that the Secretary of State for the Home Department must clear before she can deport an EEA national from the UK. The decision: must comply with the principle of proportionality; must be based exclusively on the personal conduct of the person concerned; cannot be taken to serve economic ends, to further a policy of general deterrence or to ‘send a message’ to foreign national offenders; cannot be based exclusively on the person’s previous convictions in and of themselves; and must demonstrate that the person represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.

In addition to these general hurdles, applicable to all EEA nationals, further protection is afforded to EEA nationals who have acquired permanent residence, who can only be removed on serious grounds of public policy or security; and EEA nationals who have lived in the UK for 10 years, who can only be removed on imperative grounds of public policy or security.

In a recent judgement promulgated on 27 July 2016, the Supreme Court grapples with these different thresholds and the circumstances in which they apply. The EEA national in question, Mr Vomero, had lived in the UK since 1985. On the face of it, it would be fair to assume he would benefit from the enhanced protection afforded to those that have been in the UK for 10 years, or at the very least would have acquired a right to permanent residence. However, this is not necessarily the case. The Supreme Court concluded that Mr Vomero had not acquired a right to permanent residence and were unable to reach a definitive conclusion on whether he could benefit from the enhanced protection afforded to those with 10 years residence. In relation to the latter, the court referred various questions to the Court of Justice of the European Union (CJEU) for clarification of the law.

What caught my attention was not the ambiguity over whether the highest severity threshold applied or not, but the courts summary of the existing case law on acquiring permanent residence and conclusion that Mr Vomero had not acquired such a right. Given that he has lived in the UK since 1985, why had Mr Vomero not acquired a right to permanent residence?

The provisions relating to permanent residence were introduced by the Citizens' Rights Directive on 30 April 2006. Prior to this, although EEA nationals were entitled to live in the UK providing they were exercising treaty rights, they did not acquire permanent residence after 5 years.

It has been established by the CJEU that periods of residence prior to the introduction of the Citizens’ Rights Directive can be taken into account when assessing whether a person has acquired permanent residence. As such, EEA nationals exercising treaty rights for a continuous period of 5 years prior to 30 April 2006 will have acquired permanent residence on that date.

However, what if there is a gap in between completion of the 5 year period and 30 April 2006 in which the EEA national was not exercising treaty rights? The CJEU has also previously addressed this question. If the gap is less than two consecutive years, this should not affect the acquisition of permanent residence on 30 April 2006. However, if the gap is longer than two years, the person will be unable to acquire permanent residence. This only applies to those seeking to rely on a 5 year period prior to 30 April 2006 to establish their right to permanent residence.

For Mr Vomero, the gap was longer than two years: he was sentenced to 8 years imprisonment for manslaughter on 2 May 2002. As a result, he had failed to exercise treaty rights for a period exceeding two years prior to 30 April 2006 and did not acquire permanent residence on that date. The Supreme Court were unable to determine whether a person who has not acquired permanent residence can benefit from the enhanced protection afforded to those that have 10 years residence. This was the primary question referred to the CJEU.

This case demonstrates the difficulties that can be faced when trying to demonstrate that a right to permanent residence has been acquired. EEA nationals who have lived in the UK for decades may be unable to demonstrate that they have such a right if they have failed to exercise treaty rights for more than two years immediately prior to 30 April 2006 and have not exercised treaty rights for a continuous period of 5 years since this date. Imprisonment following commission of a criminal offence is not the only way a person can fail to exercise treaty rights. As discussed in a previous post, failure to maintain comprehensive health insurance will preclude students and the economically self sufficient from meeting the definition. Similarly failure to register with the Accession State Workers Registration Scheme, when required to do so, can exclude a person from the definition of ‘worker’, resulting in significant periods of residence when the person cannot be deemed to have been exercising treaty rights.

Until recently, these issues have only been relevant to EEA nationals who have committed criminal offences and are facing deportation. However as more and more EEA nationals apply for documents certifying permanent residence in an attempt to protect their position following the referendum, the issues are likely to become more prevalent and will no longer be the exclusive purview of those that have committed criminal offences.