Reference by Supreme Court to CJEU: Does Enhanced Protection Depend on Permanent Residence?

Secretary of State for the Home Department v Franco Vomero (Italy) [2016] UKSC 49 (27 July 2016)

In analysing the future role of the courts in the post-Brexit legal landscape, Christina Lienen predicts a rise in EU law cases because of “people’s anxieties about their legal status and rights.” Noting that a number of complex EU law cases are pending before the Supreme Court, she concludes “that we will be in for a treat once the article 50 trigger is pulled.” Though a longstanding pre-Brexit matter, the case of Franco Vomero (FV) is one where the Supreme Court referred a series of questions about the interplay between of article 16 and article 28 of the Citizens’ Directive or 2004/38/EC. Almost four years ago, the Court of Appeal (Pill, Aikens and Rafferty LJJ, [2012] EWCA Civ 1199) held that a four-year period of imprisonment for manslaughter did not affect FV’s permanent residence in the UK for a continuous 10-year period prior to the decision to deport him. He came within the protection afforded by regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006 and could only be deported on imperative grounds of public security, which were absent in his case. The Supreme Court granted permission to appeal in February 2013 but stayed proceedings because other references were already pending in MG (C-400/12, EU:C:2014:9) and Onuekwere (C-378/12, EU:C:2014:13).

Onuekwere involved a Nigerian national who married an Irish national exercising her right of freedom of movement and residence in the UK. The couple had two children but his criminality was problematic. He was convicted of a sexual offence, for facilitating another person’s illegal entry into the UK and for unlawful possession of false documents. In Onuekwere the CJEU confirmed that a period of imprisonment does not count towards calculating the five years of continuous residence necessary for a permanent right of residence under article 16 of the Directive. In keeping with that analysis, FV had not acquired any right of permanent residence before the date of the decision to deport him. Yet, a stubborn Italian, FV argued that the finding in Onuekwere is irrelevant because an EU citizen with no right of permanent residence may nonetheless acquire a right to enhanced protection from expulsion under article 28 of the Directive.


The level of EU citizen’s integrative links in the host Member State, and a string of CJEU authorities surrounding that debate, is central to this case. The key question is whether enhanced protection against deportation laid down in article 28(3)(a) depends on an EU citizen’s possession of a right of permanent residence within the meaning of article 16 and article 28(2) of the Directive. Clarity was also sought about the legal formula for calculating the time period under which enhanced protection could be acquired.

FV’s is an Italian citizen born in 1957 who came to the UK in 1985 after meeting his British partner in France. They married, jointly purchased property and had five children. FV cared for the children but left the matrimonial home when the marriage broke down in 1998. He had criminal convictions in Italy and also behaved criminally in the UK. In particular his UK convictions included assaulting the police, driving a motor vehicle while unfit through drink or drugs and driving while disqualified. In May 1999, he moved into accommodation with one Edward Mitchell. The pair had a chaotic relationship. Things reached a crescendo on 1 March 2001 when FV killed Edward Mitchell by inflicting at least 20 blows to the head with weapons, including a hammer, and subsequently strangled his victim with the flex from an iron.

In the Central Criminal Court, the jury reduced murder to manslaughter by reason of provocation and he was sentenced to eight years’ imprisonment and released in July 2006. He received £25,000 in damages for unlawful imprisonment as a consequence of being rearrested upon his release on 3 July 2006 to hostel accommodation, which was unavailable. The decision to deport him under regulations 19(3)(b) and 21 of the 2006 Regulations – the latter provision transposes articles 27 and 28 of the Directive – was made in March 2007 approximately nine months after his release from prison. FV appealed on the ground that the decision to deport was unlawful because it was at variance with the high threshold set out in regulation 21(4)(a). He argued that, as defined, an EEA national who had resided in the UK for a continuous period of over 10 years could not be subjected to deportation unless imperative grounds of public security were in play.

The Asylum and Immigration Tribunal (AIT) took the view that regulation 21(4)(a) was satisfied and imperative grounds of public security justifying deportation existed because there was a medium risk of FV killing again. Overall, the threat posed by his conduct was sufficiently serious to warrant his expulsion “because it is, in simple terms, a matter of life and death.” In the first instance, the AIT held the threat to public security to be serious enough “as to fall within the highest level of calculus within the regulations.”

He appealed against that finding. Upon reconsideration, a differently constituted AIT allowed his appeal in April 2008 because there was no risk of him randomly killing members of the public. Thus, his circumstances did not fall within the true scope of imperative grounds for deportation. For example, even though a high risk of violence arose vis-à-vis his estranged wife “if he got into an argument with her,” she had not sought any court injunction or non-molestation order. Yet FV’s reoffending continued. In January 2012 he was convicted of having a bladed article, battery and committing an offence while subject to a suspended sentence led to him being sentenced to 16 weeks’ imprisonment. Subsequently, in July 2012, he was convicted of burglary and theft for which a further 12 weeks’ sentence was imposed.

After all in LG (Italy) v SSHD [2008] EWCA Civ 190, Carnwath LJ (as he then was) held at para 32 that the hierarchy of protection created by the Directive is “not simply a serious matter of public policy, but an actual risk to public security, so compelling that it justifies the exceptional course of removing someone who … has become ‘integrated’ by ‘many years’ residence in the host state.” Accordingly, it was arguable that FV’s deportation was justified on serious grounds of public policy. However, in light of the facts, it was not justifiable on imperative grounds of public security because such grounds had not been evinced.

As shown by article 40 (transposition) of the Directive and the rulings in Lassal (Case C-162/09, EU:C:2010:592) and Dias (Case C-325/09, EU:C:2011:498) no right of permanent residence could be acquired in law before 30 April 2006. To acquire permanent residence, FV needed to “have resided legally for a continuous period of five years” in the UK as at 30 April 2006 or at some later date. He had been in prison for more than five years by 30 April 2006 and he remained so for a further two months. In appealing the AIT’s second decision, the home office did not mount a challenge to the right of permanent residence. Instead, it focused on the meaning of “imperative grounds of public security” and as seen above Pill LJ held that no such grounds were made out out in FV’s case. Since no adverse decision was made against him on the basis of regulation 21(4)(a), FV did not seek to refer any questions during proceedings in the Court of Appeal.

Supreme Court

The present case ultimately rested on FV’s imprisonment for manslaughter and CJEU authority. Lord Mance – with whom Lady Hale (Deputy President), Lord Wilson, Lord Reed and Lord Hughes agreed – outlined two basic issues arising in the appeal. First, whether enhanced protection is available under article 28(3)(a) to an EU citizen who does not enjoy a right of permanent residence under article 16 or therefore enjoy the lesser protection available under article 28(2). And second, so far as material, what are the principles on which protection is available under articles 28(2) and 28(3)(a). His Lordship noted that pending deportation, FV was detained until December 2007 and the case was adjourned twice because of the ongoing proceedings in Onuekwere (see here and here) and MG (see here and here).

After considering the spectrum of CJEU case law against the instant case, the Supreme Court held that the Grand Chamber’s pronouncements in Tsakouridis (Case C-145/09, EU:C:2010:708) point to the conclusion that protection afforded under articles 28(2) and 28(3) of the Directive is intended to be progressive, with the possibility of the highest (enhanced) protection only being earned after ten years by those already benefitting from the next highest level through having a right of permanent residence. Panagiotis Tsakouridis was a German born Greek national. He was born in 1978 and graduated from secondary school in 1996 but committed a series of assaults and related offences in 1998. In 2001, he was granted an unlimited residence permit in Germany. In 2004 and 2005, he went to run a pancake stall in Rhodes. The case, of course, famously sets the important precedent that in conducting a risk analysis the social rehabilitation of the EU citizen in the Member State in which he/she has genuinely become integrated must not be sacrificed because such rehabilitation is not only in the individual’s interest but also in the interests of the Union in general.

Pursuant to an international arrest warrant issued in 2005, by the Amtsgericht Stuttgart (Local Court, Stuttgart), Tsakouridis was arrested in 2006 and sent back to Germany in 2007. A sentence of 6½ years’ imprisonment was imposed on him for drug dealing. Even so, after protracted proceedings in Germany’s courts, the Verwaltungsgericht Stuttgart (Administrative Court, Stuttgart) found no “imperative grounds of public security” within the meaning of the last sentence of paragraph 6(5) of the FreizügG/EU to justify expulsion. Later, the Verwaltungsgerichtshof Baden-Württemberg (Higher Administrative Court of Baden-Württemberg) referred a series of questions and the CJEU held that selling narcotics as part of an organised group is capable of being covered by the concept of “imperative grounds of public security”. Responding particularly to article 28(3)(a) it said:

31. … the decisive criterion is whether the Union citizen has lived in that member state for the ten years preceding the expulsion decision.

MG and her husband JG were both Portuguese. Their three sons M, J and L were born in the UK. MG was sentenced to 21 months’ imprisonment for having been convicted on one count of cruelty and three counts of assault by beating L who was under 16 years. Her deportation was sought on grounds of public policy and public security pursuant to regulation 21.

The consequence of the decision in MG – which like Onuekwere post-dates the Court of Appeal’s judgment in the instant case – is that the calculations of the time needed to qualify for certain rights under articles 16 and 28(3)(a) of the Directive are different. The CJEU held that the five-year period under article 16 must be continuous but will, once acquired, only be lost by absence or imprisonment lasting two years. On the other hand, the 10-year previous period under article 28(3)(a) might be non-continuous, where interrupted by a period of absence or imprisonment. The court found that the 10-year period for enhanced protection was calculated by counting back from the date of the expulsion decision.

Lord Mance said at para 20 that it is unclear whether the 10 years are to be counted by including or excluding any such period of interruption. He found the requirement of a rounded assessment as to the identification of the existence of a sufficient integrative link “to be open in its meaning and effect.” When calculating the 10-years’ residence prior to the deportation order, following MG regard needs to be given to time spent at liberty before imprisonment. Even a jurist as eminent as Lord Mance was forced to concede that the CJEU’s analysis of the 10-year issue in MG had been conducted “confusingly” (see para 21).

In Tsakouridis, Advocate General Yves Bot found it acceptable to overlook Tsakouridis’s seasonal absence from March to October 2004. But he also opined that a lengthier absence from mid-October 2005 until March 2007 – during which Tsakouridis’s return to Germany was enforced – inevitably meant that “the link between him and the host Member State is no longer as strong and may even be totally broken.” The CJEU itself did not disapprove of this analysis but instead expanded it by holding that, rather than concentrating on a single absence, all absences needed to be examined.

Interesting differences were observable between the cases. Tsakouridis’s birth in Germany in 1978 meant that prior to 2004 he lived there continuously for at least 26 years whereas FV was born abroad and arrived in the UK in 1985 to live here for 16 years. The family life FV developed was lost and subsequent to his release in 2006, after five years and four months in prison, he was free for eight months before the home office decided to deport him. On the other hand, Tsakouridis did not plan to return to Germany but FV remained in the UK after release from prison. A close review of whether FV’s integrative links entitled him to enhanced protection was required. No such review was conducted by the AIT and the Court of Appeal’s erroneous examination was conducted on the footing that FV possessed a permanent right of residence, which, even if not a precondition to enhanced protection, must be relevant to its acquisition or retention.

For FV, the thrust of Tsakouridis and MG is such that the test for acquiring enhanced protection must be read to mean that the ten continuous years of residence contemplated by article 28(3)(a) needs to be satisfied “in principle”. Even though jail time does not normally count towards integration, time spent in prison immediately preceding the decision to deport will not necessarily erode prior integration to a degree depriving the EU citizen of enhanced protection altogether. He also claimed that delaying a decision to deport an EU citizen may unfairly prejudice him. The Court of Appeal was attracted to the approach and thus held that FV’s integrative link with the UK remained intact at the point in time his expulsion was ordered in March 2007.

Neither article 28(3)(a) nor the existing case law picks out any need, or condition precedent, for the acquisition of a right of permanent residence prior to an EU citizen invoking enhanced protection from expulsion. In that regard, Lord Mance explained at para 27 that a majority of the Supreme Court preferred the view that possession of a right of permanent residence is not needed in order to enjoy enhanced protection under 28(3)(a) of the Directive.

But signs in the Directive also point towards construing the protections afforded by article 28(2) and 28(3) to benefit those who enjoy rights of residence. Arguably, article 28(3) is predicated upon the enjoyment of such a right. It is also possible to suggest that the right in question refers most naturally the right of permanent residence referred to in article 28(2). Because a minority of the justices regarded “the position as at the least unclear,” the Supreme Court referred to the CJEU the question:

(1) whether enhanced protection under article 28(3)(a) depends upon the possession of a right of permanent residence within article 16 and article 28(2) of the Directive.

In the event that the answer to this question is no, the Supreme Court referred two further questions:

(2) whether the period of residence for the previous ten years, to which article 28(3)(a) refers, is

(a) a simple calendar period looking back from the relevant date (here that of the decision to deport), including in it any periods of absence or imprisonment,

(b) a potentially non-continuous period, derived by looking back from the relevant date and adding together period(s) when the relevant person was not absent or in prison, to arrive, if possible, at a total of ten years’ previous residence.

(3) what the true relationship is between the ten-year residence test to which article 28(3)(a) refers and the overall assessment of an integrative link.


Since discussing the Treaties is extremely fashionable nowadays because of Brexit, it is worth recalling that the CJEU held in PI (Case C-348/09, EU:C:2012:300) that criminal offences covered by the concept of “particularly serious crime” referred to in the second sub-paragraph of article 83(1) of the Treaty on the Functioning of the European Union (TFEU) may justify deporting an EU citizen, even if that person has lived for more than ten years in the host Member State. (Directive 2011/93/EU on combating the sexual abuse and sexual exploitation of children and child pornography was also cited it that case.) However, the making of such a deportation order is conditional on the requirement that the personal conduct of the individual concerned must represent a genuine, present threat affecting one of the fundamental interests of that Member State.

Thus the offences of “terrorism, trafficking in human beings and sexual exploitation of women and children, illicit drug trafficking, illicit arms trafficking, money laundering, corruption, counterfeiting of means of payment, computer crime and organised crime” were capable of reaching the threshold of article 28(3), if the manner in which such an offence had been committed revealed “particularly serious” characteristics. The seriousness of such crimes, entailing a cross‑border dimension, is such that the EU legislature may intervene. It is possible to add to the list but murder and manslaughter do not appear on it.

In light of Tsakouridis, the Grand Chamber stressed at paras 19 and 20 of PI that the concept of “imperative grounds of public security” within article 28(3) of the Directive was “considerably stricter” than that of “serious grounds” within article 28(2). The CJEU described the applicant in PI as “relentless in his criminal conduct”. He was an Italian resident in Germany since 1987 who was convicted of sexual assault, sexual coercion and rape of a minor (aged 8 years at the time of the offences) and sentenced to 7½ years’ imprisonment. In PI, two years and four months in prison before the decision was made did not of itself defeat integration. As seen above, the decision seems to turn on an overall qualitative assessment having regard to all relevant factors, including the length of residence, family connections and any interruptions in integration.

The result of the Brexit referendum, which is bereft of common sense, irrefutably confirmed the majority of the British public’s animosity towards freedom of movement. Conversely, the Directive’s sublime structure stands out in recital 17 which is clear that the enjoyment of permanent residence by EU citizens electing to settle in the host Member State fortifies “the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union.”

Article 28 is important because it implements the Directive’s preambular objectives of (i) laying down a tighter definition of the circumstances, per recital 22, permitting the expulsion of EU citizens and their family members (ii) giving recognition, per recital 23, to the serious harm caused by the curtailment (which should be limited) of free movement rights and (iii) laying down a system of protection which demands, per recital 24, that the degree of protection against expulsion remains exponentially linked to the degree of integration of EU citizens and their family members in the host Member State.

Indeed, because of such maxims and the potentially generous interpretation that may accompany them, in The EU Citizenship Directive: A Commentary (2014), Guild, Peers and Tomkin point out (at p. 264) that “article 28 is an entirely new provision as compared to the previous legislation.” And ultimately irrespective of the agonies of Brexit, the case of Franco Vomero will still serve as a fresh benchmark in producing a cogent analysis and interpretation of that confusing provision for future times.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Brexit, Cases, Citizens Directive, Citizenship and Nationality, CJEU, Court of Appeal, Deportation, Permanent Residence, Proportionality, UKSC and tagged , , , , , , . Bookmark the permalink.

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