As stated by the CJEU in para 31 of MG, Onuekwere v Secretary of State for the Home Department  EUECJ C-378/12 is an important judgment. Nnamdi Onuekwere (O), a Nigerian, claimed that he entered the UK as a visitor. Surely enough O got married here in December 1999. He had two children with his Irish wife. As a third-country national (TCN), O was granted a 5-year residence permit as the spouse of a Union citizen. However, he developed a bit of a criminal record.
In 2000, O was sentenced to 9 months’ imprisonment, suspended for 2 years, for having sexual intercourse with a mentally ill patient at the hospital where he worked. He completed the period of suspension without imprisonment. Some years later, in 2003, he was arrested for facilitating another person’s illegal entry into the UK.
While on bail O failed to attend his court date and was sentenced to 2½ years’ imprisonment for his 2003 offence. When O was freed in late 2005, the SSHD wished to deport him and a year later his appeal was allowed because his wife was exercising Treaty rights in the UK. In 2007, during the Christmas season, O was arrested for being in unlawful possession of false papers for which he received, in mid-2008, a sentence of 2¼ years’ imprisonment.
Following O’s release in 2009, the SSHD wanted to deport him but the UT found that he could not be deported on public policy grounds (it was also determined that O was not permanently resident in the UK because of his imprisonment). Subsequently, O applied for a permanent residence card, which was refused. He appealed and it was decided at the First-tier level that although not permanently resident on the basis of 5 years’ continuous residence, O was still entitled to a residence card. O – whose residence between 2 December 1999 and 16 September 2004 (the date on which he was imprisoned) amounted to 4 years and 10 months – appealed to the UT: he argued that by virtue of Case C-145/09 Land Baden-Württemberg v Tsakouridis  ECR I-11979, imprisonment, which was only a factor to be taken into account, did not break continuity of residence.
Subsequently, the UT stayed proceedings and referred a couple of questions to the CJEU about the proper interpretation of article 16 of the directive – transposed by regulation 15 of the Immigration (European Economic Area) Regulations 2006.
First of all the UT asked the CJEU whether within the meaning of article 16(2) of the directive, time spent in prison in the host Member State by a TCN family member of a Union citizen who became permanently resident during that time could be taken into account in determining whether a TCN such as O had acquired the right of permanent residence.
Secondly, the UT asked whether under article 16(2) and (3) continuity of residence is interrupted by periods of imprisonment.
The Court’s Judgment
This is what Free Movement said:
The decision in Onuekwere will obviously be disappointing for EU and third country nationals in other cases seeking to rely on periods spent in prison to acquire a right of permanent residence. However, the outcome is probably not surprising, and confirms the approach already taken by the domestic courts in cases such as HR (Portugal) and LG & CC
The Court’s response to the first question was that under article 16(2) of the directive periods of imprisonment of a TCN in the host Member State, who was a family member of a Union citizen who had acquired the right of permanent residence in that Member State during those periods, cannot be taken into account in the context of the acquisition by that TCN of the right of permanent residence.
As noted at para 34 in Case C-529/11 Alarape and Tijani v SSHD  ECR I-0000, TCNs can only obtain a permanent right of residence if (a) the Union citizen satisfies the general rule – legal residence for a continuous period of 5 years – for eligibility under article 16(1) of the directive and (b) the TCNs have resided with the Union citizen for the period in question: para 18. This implies a necessary and concurrent right of residence for TCNs accompanying or joining that citizen but the periods of residence of TCNs only count if the condition set out in article 7(2) is satisfied: para 19 citing Alarape, paras 36 & 37.
O argued that when his wife acquired permanent residence she had for a continuous period of 5 years met the requirements of article 7(1) – that the Union citizen is a worker, self-employed, self-sufficient or a student; because of this he in turn satisfied the condition in article 7(2) for the same period of time; and that, despite his imprisonment, this time should count for the purposes of permanent residence under article 16(2).
But the Member States submitting observations and the European Commission did not agree and the Court too thought that “the very terms and the purpose of article 16(2)” make it “clear” that periods of imprisonment cannot count towards permanent residence: paras 21 & 22. Moreover, the requirement for TCNs to legally and continuously reside with the Union citizen fortifies the condition that they “must accompany or join that same citizen”: para 23. Furthermore, as recorded in recital 17 of the directive, permanent residence is central to promoting social cohesion and strengthens “the feeling of Union citizenship” and under article 16(1) its acquisition is conditional upon “the integration of the citizen of the Union in the host Member State”: para 24 citing Case C-162/09 SSWP v Lassal  ECR I-9217, paras 32 & 37. Because integration is a condition precedent to achieving permanent residence, qualitative elements relating to the level of a person’s integration in a host Member State are important and – even outside the situations contemplated in article 16(4) – the weakening of integrating links warrants losing permanent residence: para 25 citing Case C-325/09 Dias v SSWP  ECR I-6387, paras 59, 63 & 65).
Violating the criminal law and being sentenced to prison demonstrates a disregard for the norms of the host Member State’s society and the result is that periods of imprisonment cannot help people like O in obtaining permanent residence because this would plainly contradict the aim pursued by the directive: para 26.
The answer in relation to the second question is that continuity of residence is interrupted by periods of imprisonment of a TCN in the host Member State who was a family member of a Union citizen who had acquired the right of permanent residence in that Member State during those periods for the purposes of article 16(2) and (3).
Firstly, as explained in the context of the first question, TCNs are able to acquire permanent residence if they have legally resided with the citizen for a continuous period of 5 years and this condition fulfils the integration requirement which is necessary to achieve permanent residence: paras 29 & 30. The directive established a gradual system that mirrors the stages and requirements contained in legal instruments and case law that preceded it “and culminates in the right of permanent residence”: para 30 referring to Cases C-424/10 and C-425/10 Ziolkowski and Szeja  ECR I-14051, para 38, and Alarape, para 46. The Court repeated its disapproval of violating the criminal law and said that the imposition of a criminal sentence by a national court demonstrates non-compliance with the values of the host Member State. Therefore, taking periods of imprisonment (which interrupt the continuity of residence) into account in calculating the requisite period needed for permanent residence by TCNs clearly contradicts the aims of the directive.
Overall, the Court (Second Chamber) held that:
1. Article 16(2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as meaning that the periods of imprisonment in the host Member State of a third-country national, who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods, cannot be taken into consideration in the context of the acquisition by that national of the right of permanent residence for the purposes of that provision.
2. Article 16(2) and (3) of Directive 2004/38 must be interpreted as meaning that the continuity of residence is interrupted by periods of imprisonment in the host Member State of a third-country national who is a family member of a Union citizen who has acquired the right of permanent residence in that Member State during those periods.
Rights of residence and expulsion decisions under the directive involve hard case law. A lot of times, decision letters fleetingly refer to the cases mentioned above but it is rare to see any real application to the facts. No newcomer to dubious tactics, the SSHD inveterately presents historic risk as present risk. However, clear guidance states that this approach is flawed. For example, in ABC v SSHD  EWHC 1272 (Admin), it was explained that up-to-date OASys (see Pipe’s Jargon Buster) and probation reports are critically important in evaluating the real risks posed by foreign offenders at the time of their release into the community. Similarly, in Essa (EEA: rehabilitation/integration)  UKUT 00316 (IAC), the UT explained that what is:
39. … valuable to a judge considering risk factors is the extent of any progress made during the sentence and licence period, and any material shift in OASys assessment that we understand from the London Probation trust at least to be conducted regularly at intervals of between 6 months and 12 months. The failure to properly understand such reports is not limited to the untutored judiciary.
Blake J also lamented that “by far the biggest problem with the data available to us emanating from the Probation Service is that it is out of date”: para 41. It is fair to say that in some cases by neglecting to produce OASys reports at all, the Probation Service routinely causes the deportation of low-risk EU nationals who have been convicted of a single criminal offence (sometimes just a fight over politics with some local geezers in a pub). This is the easy thing to do because if someone is deported then the said person will not need to be supervised under a licence and a licence report will not have to be produced. Quite controversially, it seems to be equally convenient for the Probation Service to shirk their work by saying that EU nationals are incapable of claiming jobseeker’s allowance. Even where the risk of re-offending is minimal, and ample evidence of future employment is observable, the Probation Service routinely argues that EU nationals with just one conviction pose a medium or high risk of reconviction. If their view is challenged, without a shred of evidence they say that like the appellant the future employer is a criminal too.
Some of the individuals representing the SSHD (usually fresh law graduates in search of what Lord Carnwath chose to describe as a “better form of life”) are seriously off target about the principles of international and cognate domestic jurisprudence on deporting foreign nationals. Like their counterparts in probation, these representatives of the State also make wild and frivolous accusations about appellants and their friends and families. Cheap and inaccurate paperwork and hollow accusations remain the order of the day. In instances, criminal casework and probation can be seen ganging up against witnesses (with no recorded convictions, cautions or reprimands) by accusing them of being “criminals”. If the government accuses appellants’ family members or friends of being criminals then the concerned officials really should back their allegations up with evidence. Judges rightly say that it is for witnesses to prove themselves in their evidence but is it really feasible to have a criminal trial (not just in relation to the appellant but also his family/friends who gave evidence) within a deportation appeal?
Government representatives can also be heard reciting poorly written decision letters – which comprehensively misunderstand the law – as if they are scripture. Surely, the State, which is meant to safeguard human rights, the rule of law and fairness, can do better than all this. These days deportation is a knee jerk reaction to the Foreign National Prisoners’ Fiasco which, not long ago, the government had created by way of its own negligence and more than a thousand very serious criminals were never considered for deportation and were released into the community instead. So now, just to sweep yesterday’s dirt under the carpet, the government is just out to get everybody.
Weirdly, when you’re chatting with your friend Naim (himself a “good” Punjabi “migrant” bookseller from Lahore) in the Sindh High Court’s bookshop, a Polish teacher who lived in the UK for many years and taught in a school might ring you. Emphasising that jealous British colleagues managed to arrange his downfall, the teacher, who says that he pleaded not guilty and was wrongfully convicted also complains that he was deported after serving his sentence. The Polish man says that his bank account was seized and that he could not appeal the decision to make a deportation order against him (on the basis for his conviction for ABH) because he had no funds. These days he feels cold in Poland, has no job and may have to commit crime to get food.
In both MG and Onuekwere, the Grand Chamber’s decision in Tsakouridis – where a Greek national with a lengthy criminal record was returned from Rhodes (where, from time to time, he ran a pancake stall) to Germany (where he had been resident for 30 years) to do prison time for trafficking narcotics – remained at the heart of the Court’s reasoning that prison does not count.
Apart from time spent in prison, Tsakouridis does make an additional point about rehabilitation of the Union citizen in the host Member State. The strident MG and Onuekwere judgments make no point about rehabilitation. However, in the latter case, Bot AG said in his opinion that retribution and rehabilitation could not “operate to negate each other” (para AG 55); people like O could not count time spent in prison (for atoning their crimes) towards permanent residence but they were nevertheless entitled to rehabilitation in the host Member State.
In a similar vein, in Essa, an anxious UT said that, irrespective of whether permanent residence has been achieved, for any deportation of an EU/EEA national or family member of such national to be justified on public good grounds, a present threat to public policy must be established: para 32. A criminal conviction alone cannot suffice and it is impermissible in a EU/EEA case to deport someone “on the basis of criminal offending simply to deter others.” Apart from the “most serious threats to public safety” would be deportees “must represent a present threat by reason of a propensity to re-offend or an unacceptably high risk of re-offending.” Where rehabilitation is appropriately evidenced, future prospects of “rehabilitation do not enter the balance, save possibly as future protective factors to ensure that the rehabilitation remains durable.” (Apparently, regardless of whether they did it or not, people who fully confess their crimes have been rehabilitated.) On the other hand, “it is only where rehabilitation is incomplete or uncertain [meaning that, like Daha Essa who never accepted that he robbed his victim at knifepoint, the offender does not confess] that future prospects may play a role in the overall assessment” and guidance must be taken from Tsakouridis and cognate domestic decisions that “it is in the interests of the citizen, the host state and the Union itself for an offender to cease to offend”: para 33.
Some tension between Bot AG’s Tsakouridis opinion and the domestic authorities also exists. For example, in R (Essa) v UT (IAC) & Anr  EWCA Civ 1718, the Court of Appeal (Maurice Kay, Toulson & Aikens LJJ) unanimously held at para 16 that although the CJEU had adopted Bot AG’s opinion it had not adopted para AG 95 and it was not incumbent upon the primary decision-maker “to state in precisely in what that decision does not prejudice the offender’s rehabilitation.” However, in Essa the UT subsequently formulated the view that:
36. … Although the Court of Appeal have made clear that there is no general duty on the Secretary of State to explain positively how deportation would assist rehabilitation, the interface of criminal law, mental health law, immigration and free movement law make it likely that this will be an area where tribunal judges will need particular information as to the consequences of deportation for the individual. If a proven treatment programme is interrupted with adverse effects on future prospects, if the claimant is transferred from a secure environment in the host state to an insecure one outside it, if facilities elsewhere are sub-standard and ineffective, these may well be factors against deportation.
In testing economic times it is politically fashionable to say that deportation is in the public interest. But this is a complex area with vast case law. Overall, decision making in deportation cases is highly questionable and the State’s approach remains disconnected with the obligation to rebuild foreign prisoners’ lives upon finishing their sentences. Unfortunately, the consequences of deportation for the individual and the well being of the Union rank second. Press hysteria and politicians’ outbursts only make matters worse. The irony is that in the past not considering dangerous criminals for deportation was normal whereas these days a lot of first-time non-violent offenders, who were model prisoners, are routinely receiving dodgy decision letters about what a great risk they pose to the UK and must therefore be deported. Even on a baseline level of protection such deportations are disproportionate.