The Home Secretary decided in 2007 to deport Franco Vomero, an Italian citizen, after he had served a prison sentence for manslaughter. The Supreme Court held that he had not acquired an EU right of permanent residence before that decision, but it did not decide whether he could still claim the strongest protection against expulsion on the basis of ten years’ residence. It referred that issue, and related questions about how those ten years are counted, to the Court of Justice.
Mr Vomero, an Italian national, came to the United Kingdom in March 1985 and married a British citizen that August. They had five children. After the marriage broke down in 1998 he lived with Edward Mitchell. On 1 March 2001, after both men had been drinking, he killed Mr Mitchell. The jury reduced a charge of murder to manslaughter by reason of provocation. On 2 May 2002 he was sentenced to eight years’ imprisonment and released in early July 2006.
Law Teacher writing support
Writing a law essay?
We choose a writer who is an expert in your area of law and qualified to at least the academic level you select. Most of our writers hold a master’s degree or PhD, have teaching experience, or both.
Send us your question and, if you wish, any marking criteria. We’ll write an essay to your instructions.
The Secretary of State decided to deport Mr Vomero in March 2007. The dispute concerned which level of EU-law protection applied to that decision.
Two protections against expulsion
Five years’ continuous legal residence gives a Union citizen a right of permanent residence. Article 28 then increases protection against expulsion as integration increases. Before any expulsion on public policy or public security grounds, the host state must consider matters such as length of residence, family and economic circumstances, and links with the country of origin. A permanent resident may be expelled only on serious grounds of public policy or public security. A person who has resided in the host state for the previous ten years has enhanced protection and may be expelled only on imperative grounds of public security.
The Secretary of State said that enhanced protection was unavailable because Mr Vomero had never acquired permanent residence. His roughly 16 years’ residence by 2001 was accepted; the argument rested on imprisonment from 2001 to 2006 and on Court of Justice authority given after the Court of Appeal’s judgment. Mr Vomero said that lack of permanent residence was irrelevant if an overall assessment showed that he was sufficiently integrated. The Court of Appeal accepted that submission and treated the link formed before his imprisonment in March 2001 as still intact in March 2007.
No permanent residence before the decision
Lord Mance, with whom Lady Hale, Lord Wilson, Lord Reed and Lord Hughes agreed, held that the Secretary of State was right on this point. No right of permanent residence could be acquired before 30 April 2006. On that date Mr Vomero had already been in prison for more than five years, and he remained there for about two further months. When deportation was decided, he had been free for less than nine months. In Onuekwere, the Court of Justice held that imprisonment cannot be counted towards the five years and interrupts continuity of residence. Lord Mance held that the same rule applies to a Union citizen under article 16(1). Mr Vomero had therefore not acquired permanent residence before the decision to deport him.
The parties disagreed about a separate point: whether, once permanent residence has been acquired on or after 30 April 2006, more than two years in prison would remove it by analogy with an absence of more than two years. That issue did not need to be decided.
The ten-year test
The remaining question was whether enhanced protection under article 28(3)(a) can arise without permanent residence. Some statements in Tsakouridis suggest that protection is progressive, so that the highest level is earned only after ten years by someone who already has permanent residence. Against that, neither article 28(3) nor the existing case law expressly requires permanent residence. If any right of residence is required, a lesser right might be enough. Although Mr Vomero may not have been a worker at any material time, he might have a right to reside as a divorced person who had been married for more than three years to a British citizen in the United Kingdom. A majority favoured the view that permanent residence is not required. A minority regarded the position as at least unclear.
How the previous ten years are counted was also unclear. The five-year period must be continuous and is broken by imprisonment. The ten years before the deportation decision are only in principle continuous and may be non-continuous if interrupted by absence or imprisonment. It is unclear whether such an interruption is included in the ten years or left out of the count. An overall assessment of whether integrating links have been broken also appears, on its face, to be a different test from residence for the previous ten years. Where the person is, or has recently been, in prison, earlier residence at liberty can be taken into account, but it does not automatically preserve enhanced protection.
Lord Mance did not decide that assessment. Mr Vomero had lived abroad for his first 28 years, then for about 16 years in the United Kingdom, during which he developed and then lost a family life, which appeared no longer to include contact with his children. About five years and four months in prison followed, then about eight months at liberty. He had a number of convictions during the 16 years and, if material, further more recent convictions. Those circumstances were well capable of requiring a close review of his links in March 2007. The Tribunal had not carried out that review, because it assumed that the ten years were established. The Court of Appeal’s examination could not stand: it proceeded on the erroneous basis that he had permanent residence. Even if that right is not a precondition of enhanced protection, it must be relevant to whether the protection is acquired or retained.
The Supreme Court returned to the case after the European ruling. Its 2019 judgment in Vomero explains the protection applicable at the date of the deportation decision.
Verdict: The Supreme Court referred questions about enhanced protection to the Court of Justice. It held that Mr Vomero had not acquired permanent residence before the 2007 decision. Whether enhanced protection nevertheless applied and whether he could be deported were not finally determined here.
Source: Secretary of State for the Home Department v Franco Vomero [2016] UKSC 49
