When the Secretary of State decided in March 2007 to deport Franco Vomero, an Italian national convicted of manslaughter, he did not have the right of permanent residence required before the stronger protections against expulsion in Directive 2004/38/EC could apply. The Supreme Court held that more than two years’ imprisonment before the Directive took effect prevented that right from arising on 30 April 2006 or at any time before the decision. It allowed the appeal, while returning the case for reconsideration of later events and of whether expulsion remained justified.
The decision under challenge
Mr Vomero, an Italian national, had lived in the UK for many years before a custodial sentence interrupted his residence. He relied on his residence before imprisonment to claim enhanced protection against deportation under EU law.
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The Secretary of State decided to deport him on 23 March 2007. The timing mattered because the Citizens Directive’s deadline for implementation fell during his imprisonment.
The levels of protection
Article 16 of the Directive gives a Union citizen a right of permanent residence after five years’ continuous legal residence. Legal residence is residence satisfying the Directive’s conditions. For residence before the transposition date, it means residence in accordance with the earlier EU instruments.
Article 28 then provides increasing protection against expulsion. Before expelling someone on public-policy or public-security grounds, the host state must consider matters including length of residence, age, health, family and economic circumstances, integration and links with the country of origin. Someone with permanent residence may be expelled only on serious grounds of public policy or public security. A Union citizen who has resided in the host state for the previous ten years may be expelled only on imperative grounds of public security.
The Directive had to be transposed by 30 April 2006, while Mr Vomero was still serving his sentence. It did not itself explain whether earlier residence could found permanent residence immediately, or how imprisonment affected legal residence and continuity. The Court of Justice had filled those gaps in earlier cases.
Why the earlier residence did not qualify
At a previous hearing, Lord Mance, with whom the other members of the Court agreed, concluded that Mr Vomero had not acquired permanent residence before the deportation decision. No such right could arise before 30 April 2006. Imprisonment could not be counted towards the five years and interrupted continuity. His imprisonment from 2001 to 2006 therefore meant that he had not completed five years’ continuous legal residence on the transposition date or at any later date before March 2007.
The Court of Appeal had nevertheless treated his integrative link with the United Kingdom as intact and accepted that the ten-year protection could apply without permanent residence. The Supreme Court asked the Court of Justice whether that enhanced protection depended on first having permanent residence. In April 2018 the Court of Justice held that it did: the highest level of protection is available only to someone who already qualifies for the protection given to permanent residents. The further questions about calculating the ten years therefore did not arise.
The Court of Justice said that it was assuming, without having enough information to assess, the premise that Mr Vomero did not have permanent residence. Lord Reed, with whom Lady Hale, Lord Wilson, Lord Mance and Lord Hughes agreed, explained that this did not undermine Lord Mance. Lord Mance had decided only that no right had been acquired by 23 March 2007. He had not decided whether Mr Vomero had such a right when the European Court later gave judgment, and that question was not before the Supreme Court.
Acquisition, not a notional earlier right
Mr Vomero argued that he had notionally acquired permanent residence before 30 April 2006 and retained it despite more than two years in prison. Lord Reed rejected that formulation. EU law, as explained by the Court of Justice, distinguishes actual acquisition of the right from its later loss. Acquisition could occur only on or after 30 April 2006, and there was no basis for a merely notional right.
The applicable analogy was with cases where five years’ legal residence had been completed before transposition but was followed by a period which weakened the person’s integrative link with the host state. Although the Directive’s two-year rule expressly concerns loss of an acquired right through absence, the Court of Justice had applied it by analogy to such earlier gaps. Imprisonment has a comparable effect: it demonstrates non-compliance with values expressed in the host state’s criminal law, cannot be counted towards acquisition and breaks continuity. The same reasoning applies to Union citizens as to their third-country family members.
Mr Vomero had completed more than five years’ continuous legal residence before his imprisonment in 2001. By 30 April 2006, however, he had been imprisoned for more than two years. That prevented permanent residence from arising on that date or at any time before 23 March 2007. A new five-year period could not begin before 3 July 2006, and even then only if he satisfied the conditions for legal residence. Less than nine months passed before the deportation decision. If five years had not been completed before the imprisonments in 2012, those periods would neither count nor preserve continuity.
The Court declined to decide whether imprisonment exceeding two years would cause an already acquired right of permanent residence to be lost. Lord Mance had observed, without deciding the point, that this might seem logical. The Advocate General had said that the reasoning about acquisition could not simply be applied to forfeiture. That disagreement did not affect the conclusion that no right had been acquired before the decision.
The issues left for the tribunal
The parties agreed that, on reconsideration, Mr Vomero could argue that he had acquired permanent residence after 23 March 2007. They said domestic law required the Upper Tribunal to consider the position at its own hearing, relying on section 85(4) of the Nationality, Immigration and Asylum Act 2002 and Schedule 2, paragraph 1 of the Immigration (European Economic Area) Regulations 2016. Because the point was agreed, the Supreme Court expressed no view on whether it was correct.
The tribunal must consider the implications if permanent residence has since been acquired. In any event, it must decide whether grounds of public policy or public security still justify expulsion. Where enforcement has been deferred, a fresh assessment of whether the person remains a genuine and present threat may be necessary, especially after a lengthy interval, taking account of later facts which may show that the threat has ceased or substantially diminished.
The questions answered in this appeal were referred in Vomero [2016] UKSC 49, the Supreme Court’s earlier judgment in the same proceedings.
Verdict: The Supreme Court unanimously allowed the Secretary of State’s appeal. Neither article 28(2) nor article 28(3) applied on 23 March 2007. The Upper Tribunal still had to reconsider the deportation appeal, including the significance of any rights acquired later.
Source: Secretary of State for the Home Department v Franco Vomero [2019] UKSC 35
