In this case, the issue before the UTIAC was whether time spent in custody is to be counted in the five-year period which an applicant requires to qualify as the family member of an EEA national in order to acquire the status of a permanent resident under regulation 15(1)(f) of the Immigration (European Economic Area) Regulations 2006.
Justice Silber and Senior Immigration Judge Warr decided the question in favour of the SSHD and allowed her appeal because SO’s commission of a criminal offence broke the continuity of his residence which entailed “a continuous period of five years”.
The facts of the case were that the respondent SO, a national of Nigeria, had entered the UK unlawfully in the year 2000. Thereafter, in September 2002, he married a Dutch national. Subsequently, the SSHD decided to grant him permission to remain in the UK as the family member of an EEA national. After seven-and-a-half years of marriage SO and his Dutch wife divorced in January 2010. SO’s crime was that he had used a false instrument which earned him a sentence of twenty months’ imprisonment: to this end he had spent four months and three days in prison. (He received thirty days’ credit in his sentence for time spent in police remand and custody.)
An application for a residence card as a non-EEA family member of SO’s Dutch wife was made on his behalf on 5 March 2010. As the marriage was no longer subsisting, SO sought a retained right of residence (arising from having completed five years’ residence in the UK within the meaning of the 2006 Regulations).
Regulation 15 applied to SO’s case in the following way:
“(1) The following persons shall acquire the right to reside in the United Kingdom permanently.
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years …
(f) a person who
(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii) was, at the end of that period, a family member who has retained his right of residence.”
In the FTTIAC, Immigration Judge Neuberger allowed SO’s appeal because in the IJ’s judgment SO’s solicitor Mr Ibitayo made “a correct submission in that this appellant had not served a substantial period in prison but was there for merely four months” (my italics) which the IJ found in tune with regulation 15.
However, as Silber J and Warr SIJ point out at paragraph 5 – Mr Ibitayo did not make this submission on his own: instead he had submitted that the Court of Appeal judgment on which the SSHD relied, HR (Portugal) v the Secretary of State for the Home Department  EWCA Civ 371, applied exclusively to EEA nationals. It should be noted that there is some confusion about who represented SO in the FTTIAC: the extract at paragraph 5 from the Upper Tribunal’s decision identifies the representative as Mr Ibitayo, whereas at paragraph 4 Silber J and Warr SIJ identify the representative as Mr Alabt.
Whoever represented SO in the first instance had submitted that since SO was not an EEA national, he could not be subject to regulation 21(4)(a) – a relevant EEA decision taken on the grounds of public policy, public security or public health with respect to an EEA national who has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision.
It was only after Neuberger IJ stressed that the SSHD’s case was that any prison time would need to be “a significant period” that SO’s representative made this submission before the Tribunal. Having received that idea from Neuberger IJ, the representative applied the “a significant period” test to regulation 15(1)(f) which produced the winning argument that a period of four months’ imprisonment did not break the continuity of SO’s residence.
No newcomer to such situations, the SSHD only ever made one submission. For her, any period in custody had the natural result of breaking the continuity of SO’s residence. In the HR (Portugal) case, Sedley LJ had described the appellant (HR) as having “devoted his whole life to crime” (at ). Moreover, HR’s counsel had conceded that time spent in prison could not be counted towards lawful permanent settlement but instead he had argued that the Treaty was silent on a requirement of “lawfulness” on the part of HR (who had been physically present in the UK in excess of 10 years – albeit partially in custody).
The SSHD also relied upon LG & GC v Secretary of State  UKAIT 00024  Imm. A.R. 691 where Senior President Carnwath LJ repeated his earlier judgment in LG (Italy) v Secretary of State  EWCA Civ 190 which confirmed the approach adopted by the Court of Appeal in HR (Portugal).
SO’s lawyer had submitted to the UTIAC that the SSHD’s authorities were deportation cases which could be distinguished from SO’s case. But the UTIAC clarified at paragraph 12 that the rule in HR (Portugal) had universal application. The UTIAC explained that when the question was considered in Valentine Batista v Secretary of State for the Home Department  EWCA Civ 896, Carnwath LJ explained that HR (Portugal) settled the law on time spent in prison not counting towards time spent in the UK within the meaning of regulation 15.
In the conjoined appeals entitled Caesar Carvalho v Secretary of State for the Home Department and Secretary of State for the Home Department v Omar Abdullah Omar  EWCA Civ 1406, Maurice Kay LJ (at ) adjudged that Mr Carvalho was not being deprived of a fundamental right as his imprisonment disqualified him from the protection which was awarded to persons who had spent time in the host state exercising a Treaty right. Moreover, in Caesar Carvalho, Longmore LJ (at 47) took the view that:
- HR (Portugal) concluded the question that following imprisonment, the time required to acquire a permanent right which counted towards a “continuous period” would run anew.
- The Treaty encouraged EEA workers to integrate into the host state’s workforce.
- The EEA worker is not “legally resident” in the host state while in prison.
- Therefore, time in prison could not be used to calculate the necessary five years’ legal residence (which culminated in the right of permanent residence).
Accordingly, Silber J and Warr SIJ allowed the SSHD’s appeal as Neuberger IJ had not considered the above cases and had erred by applying a test of “a substantial period” to SO’s matter.