HR (Portugal) v Secretary of State for the Home Office

This is an appeal by HR, a national of Portugal, against the determination of the AIT promulgated on 3 July 2008, made on a second stage reconsideration, rejecting his appeal against the Secretary of State’s decision to make a deportation order. It raises an important issue as to the effect of regulation 21(4)(a) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) which transposes into domestic law Directive 2004/58/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” (“the Citizenship Directive”, or simply “the Directive”). Put shortly, the issue is whether the period during which an EEA national is serving a sentence of imprisonment in this country is to be included when calculating whether he has resided in the United Kingdom for a continuous period of at least 10 years prior to the decision to deport him so as to preclude his being deported in the absence of “imperative grounds of public security”.

The Appellant is a citizen of Portugal and is aged 31. He claimed to have come to this country in 1992, but was disbelieved by the Tribunal. He had obtained a national insurance number in October 1997, and his proven presence in this country dates from then. There is no evidence that he has ever worked in the United Kingdom. He has a bad criminal record. In March 1999, for two offences of robbery he was sentenced to 18 months’ detention and 12 months’ detention concurrent in a Younger Offenders' Institution. In June 2003, he was convicted of failing to stop after an accident, failing to report an accident, driving without a licence and using a vehicle while uninsured. A community punishment order was imposed. He breached that order and was fined. In May 2005 he was convicted of burglary and theft in a dwelling. He was given a drug treatment and testing order, which he did not satisfactorily complete, because in December 2005 the sentence was varied to one of 15 months' imprisonment. In November 2004, he was convicted of dangerous driving and received another drug treatment and testing order, which like the first was varied in December 2005, in this case to a sentence of three months' imprisonment. In August 2005, he was arrested for being in possession of cannabis and a 7-inch lock knife. He was convicted by magistrates of possession of the cannabis and having an Article with a blade or which was sharply pointed in a public place (2 counts) and committed to Aylesbury Crown Court for sentence. On 9 December 2005 he was sentenced to 2 years and nine months’ imprisonment. He was released on 23 February 2007 on restrictions. On 25 May 2007, whilst still on restriction, he committed another burglary. He was convicted on 30 July 2007 and received a sentence of two years and four months’ imprisonment.

The Secretary of State’s decision letter of 5 February 2008 accepted that HR had been resident in this country for 10 years but stated that his deportation was justified on imperative grounds of public security as required by regulation 21(4)(a). HR appealed. His appeal was heard in December 2006 by Immigration Judge Chohan and Professor R H Taylor. By their determination promulgated on 8 January 2007 they dismissed his appeal. However, they did not consider the requirements of regulation 21 or future risk. As a result, reconsideration was ordered. The grounds included his claim under Article 8 of the European Convention on Human Rights: although he had a partner and daughter in this country, the Tribunal had held that his rights under it were not engaged.

The second stage reconsideration was heard by Immigration Judge Petherbridge and Mr J H Eames, whose decision is the subject of this appeal. They held that his time in prison cannot count as “residence” for the purposes of regulation 21; that he had acquired a permanent right of residence under regulation 15, and therefore could not be deported except on serious grounds of public policy or public security. They held that because his time in prison did not count it was unnecessary for the Secretary of State to show that his deportation was justified by imperative grounds of public security as required by regulation 21(4); and that his removal was justified by serious grounds of public policy or public security as required by regulation 21(3). The Tribunal did not accept that he had ever worked in this country. His claim under Article 8 was rejected. His appeal was therefore dismissed.

The only issue before this Court is whether the Tribunal erred in holding that HR’s periods in custody did not count for the purposes of determining whether he had been resident for 10 years for the purposes of regulation 21(4)(a). If they did count, his appeal would have to be allowed, since the Tribunal did not find that the Secretary of State had established that there were imperative grounds of public security justifying his deportation. No issue was raised before the Tribunal, or before this Court, as to whether a period of residence in this country before the coming into force of the 2006 Regulations counts for the purposes of regulation 21, and I express no view on it.

Regulation 11 of the 2006 Regulations confers a right of admission to the United Kingdom on EEA nationals and their family members, subject to production of specified documents. This appeal is not concerned with family members, and I shall therefore omit reference to the provisions of the Regulations concerning them. Regulation 13 confers on an EEA national a right of residence for a period not exceeding 3 months. Regulation 14 confers an extended right of residence on qualified persons and their family members. An extended right of residence is a right to reside in the UK for so long as the person remains a qualified person. Qualified persons are defined by regulation 6(1):

"qualified person" means a person who is an EEA national and in the United Kingdom as-

(a)

a jobseeker;

(b)

a worker;

(c)

a self-employed person;

(d)

a self-sufficient person; or

(e)

a student.

Paragraphs (2) to (4) of regulation 6 qualify this definition, but they are not relevant for present purposes.

Regulation 15 relates to the acquisition of a permanent right of residence; I have again omitted provisions relating to family members:

15(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;

(b)

…

(c)

a worker or self-employed person who has ceased activity;

…

(2)

Once acquired, the right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.

(3)

But this regulation is subject to regulation 19(3)(b).

The relevant parts of regulation 19 are paragraphs (1) and (3):

Exclusion and removal from the United Kingdom

19.

- (1) A person is not entitled to be admitted to the United Kingdom by virtue of regulation 11 if his exclusion is justified on grounds of public policy, public security or public health in accordance with regulation 21.

….

(3)

Subject to paragraphs (4) and (5), a person who has been admitted to, or acquired a right to reside in, the United Kingdom under these Regulations may be removed from the United Kingdom if-

(a)

he does not have or ceases to have a right to reside under these Regulations; or

(b)

he would otherwise be entitled to reside in the United Kingdom under these Regulations but the Secretary of State has decided that his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.

Regulation 21 is as follows:

Decisions taken on public policy, public security and public health grounds

21.

(1) In this regulation a "relevant decision" means an EEA decision taken on the grounds of public policy, public security or public health.

(2)

A relevant decision may not be taken to serve economic ends.

(3)

A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.

(4)

A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who -

(a)

has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or

(b)

is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.

(5)

Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles-

(a)

the decision must comply with the principle of proportionality;

(b)

the decision must be based exclusively on the personal conduct of the person concerned;

(c)

the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;

(d)

matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;

(e)

a person's previous criminal convictions do not in themselves justify the decision.

(6)

Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person's length of residence in the United Kingdom, the person's social and cultural integration into the United Kingdom and the extent of the person's links with his country of origin.

(7)

…

Mr Bedford’s submissions on behalf of HR are straightforward. HR has been in this country since 1997. He has resided nowhere else but in the UK. Paragraph (4)(a) of regulation 21 therefore applies to him, and he cannot be removed save on imperative grounds of public policy. The Tribunal did not find that there were such grounds, and their decision that his time in custody does not count was incorrect as a matter of law. The wording of regulation 21(4)(a) is unqualified. It is significant that unlike regulation 15(1)(a) it contains no requirement that residence must be “in accordance with these Regulations”. In effect, regulation 21(4)(a) operates as a qualified amnesty for those who have established themselves in this country for a very substantial period of time. He pointed out that express provision is made in Article 21 of the Directive for continuity of residence to be “broken by any expulsion decision duly enforced against the person concerned”. If it had been intended that imprisonment should break continuity of residence, similar express provision would have been made, and it was not.

The submissions of Ms Patry Hoskins on behalf of the Secretary of State are equally straightforward. She submitted that the Regulations are to be interpreted consistently with the Directive, the preamble to which makes it clear that residence for 10 years is subject to the same requirements as the acquisition of the right of permanent residence under Article 16 of the Directive and regulation 15 of the Regulations. HR has not “resided” in the UK within the meaning of the Regulations for the period of 10 years: a person who has been incarcerated cannot be said to be resident here.

Both Mr Bedford and Ms Patry Hoskins submitted that their respective submissions were clearly right, and therefore acte clair. Both of them had the same fall back position, namely that if their respective interpretations were not accepted, the interpretation of the Directive is not acte clair¸ and accordingly the Court should make a reference to the European Court of Justice for a preliminary ruling.

There has been a difference of view in domestic jurisprudence on the consequences if any for the 10 year period of residence required by regulation 21(4)(a) of a period of imprisonment; but the preponderance has leaned towards the Secretary of State’s interpretation. In MG and VC (EEA Regulations 2006;”conducive” deportation) Ireland [2006] UKAIT 00053, Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal and Senior Immigration Judges Freeman and Jordan said:

34.

Under [the] Regulations, however, an EEA national who has been resident in the United Kingdom for ten years or is a minor can be removed only on “imperative grounds of public security”. The appellant is no longer a minor (although she was when she committed the offence for which she was convicted). Her residence in the United Kingdom has partly been in prison, but there is no doubt that that constitutes “residence” for the purposes of the Regulations. The test of “imperative grounds of public security” is at the very highest level of the calculus introduced by the 2006 Regulations and Directive 2004/38/EC. There are no such grounds justifying the removal of this appellant.

However, it does not appear from the determination what, if any, argument to the contrary was before the Tribunal.

Subsequently, in Chindamo Appeal no. 1A/13107/2006, the Tribunal held that both to acquire the right of permanent residence and to accumulate the period of 10 years required by Article 28(3) of the Directive (the wording of which is identical to that of regulation 21(4)(a) of the 2006 Regulations) the EEA national must have been exercising the rights and freedoms conferred on him by the Treaty. It followed that a period of custody did not count.

MG and VC was considered by the Court of Appeal in LG (Italy) [2008] EWCA Civ 190. Carnwath LJ referred to the submission on behalf of the Secretary of State that a period of imprisonment was not a period of residence for the purposes of regulation 21(4)(a) and stated:

39.

I have considerable sympathy for the submission, which would produce a more logical and coherent scheme. It would also seem consistent with the more flexible European approach to interpretation, which gives particular weight to the Preamble (see Halsbury's Laws 4^th Ed Vol 51 para 2.266; Clive Lewis, Remedies and the Enforcement of European Community Law p 15). However, it would not be right for us to seek to reach a concluded view on an issue which is not necessary for our decision, which was not argued at all before the tribunal, and on which even in this court we were referred to none of the relevant textbooks or authorities. Ultimately, of course, it is a matter of European law, on which a reference may in due course be required.

He did not refer to the expression of the contrary view in MG and VC. Mummery LJ agreed with the judgment of Carnwath LJ. Arden LJ expressed no view on the question whether time in prison counts.

Buxton LJ, with whom Smith and Waller LJJ agreed, commented on the issue in HB [2008] EWCA Civ 806:

9.

It will be convenient to note here that while LG (Italy) was a "ten year" case, Mr Bulale asserts that he has a permanent right of residence, on the basis, by regulation 15, of residence in the United Kingdom for a continuous period of five years. He cannot therefore be removed except on "serious" grounds of public policy. At an earlier stage of the process the Secretary of State conceded that Mr Bulale has a relevant continuous period of residence of five years, and despite second thoughts on her part very fairly does not seek to withdraw that concession. However, the concession was only doubtfully correctly made. For much of the period of five years relied on Mr Bulale was in detention. The periods of residence contained in the Regulations, and in the Directive, are there to concretise the principle set out in recital 23 to the Directive, which requires the scope of measures to expel persons to be limited according to the extent to which the person has integrated into the host state. It is difficult to think that that process of integration can take place while a person is living outside normal society in the host state, not because of illness or accident, but because he has chosen to breach the societal norms of that state. I hope that an early opportunity will arise for that point to be tested further.

It is common ground, and in any event clear, that the Regulations are to be interpreted consistently with the Directive which they implement. I propose to begin by considering the Directive.

As Carnwath LJ indicated in LG (Italy), the European approach to the interpretation of legislation differs from ours. Because a purposive approach is taken, reference to the preamble is particularly important. As Lord Templeman said in Lister v Forth Dry Dock and Engineering [1990] 1 AC 546 at 558 “the courts of the United Kingdom are under a duty to follow the practice of the European Court of Justice by giving a purposive construction to Directives and to Regulations issued for the purpose of complying with Directives.” See too Lord Oliver of Aylmerton at 559. In Clive Lewis QC’s book Remedies and the Enforcement of European Community Law, to which Carnwath LJ referred, he states:

The European Court adopts a teleogical [sic] or purposive approach to the interpretation of Community Law not a literal or strict interpretation. The provisions of the E.C. Treaty may be interpreted according to the general objectives of the Treaty, as set out in Articles 2 and 3 of the E.C. Treaty. In the context of secondary Community legislation, the European Court has ruled that "every provision of Community Law must be placed in its context and interpreted in the light of the provisions of Community Law as a whole, regard being had to the objectives thereof and to its state of evolution at the date on which the provision in question is to be applied". This emphasis on considering the context of Community Law and its aims and objectives has been repeated numerous times. The European Court makes frequent use of the recitals or preamble to regulation or directive in order to do to determine its overall purpose.

The citation is from CILFIT Srl v Ministry of Health [1982] ECR 3415, 3430, paragraph 20.

The preamble to the Directive refers to the E.C. Treaty and in particular to Articles 12, 18, 40, 44 and 52. None of those Articles would suggest that there are residence rights in the present case. The right to reside in a Member State other than that of the individual’s nationality is not unqualified. Article 18 of the Treaty provides:

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give effect.

The Citizenship Directive is one of those measures. Article 39 of the Treaty provides for freedom of movement for workers, of whom the Appellant is not one. Article 40, referred to in the Directive, requires the Council to issue directives or make regulations setting out the measures required to bring about freedom of movement for workers, as defined in Article 39. Article 44 concerns freedom of establishment. The last Article specifically mentioned in the preamble to the Directive¸ Article 44, has no bearing on the present issue. None of the other provisions of the Treaty support the Appellant’s case.

Turning to the recitals to the Directive, the following are pertinent:

(9)

Union citizens should have the right of residence in the host Member State for a period not exceeding three months without being subject to any conditions or any formalities other than the requirement to hold a valid identity card or passport, without prejudice to a more favourable treatment applicable to job-seekers as recognised by the case-law of the Court of Justice.

(23)

Expulsion of Union citizens and their family members on grounds of public policy or public security is a measure that can seriously harm persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State. The scope for such measures should therefore be limited in accordance with the principle of proportionality to take account of the degree of integration of the persons concerned, the length of their residence in the host Member State, their age, state of health, family and economic situation and the links with their country of origin.

(24)

Accordingly, the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State, in particular when they were born and have resided there throughout their life. In addition, such exceptional circumstances should also apply to an expulsion measure taken against minors, in order to protect their links with their family, in accordance with the United Nations Convention on the Rights of the Child, of 20 November 1989.

Recital 23 is implemented in Articles 16 and 28.2; recital 24 is implemented in Article 28.3. What is significant in recital 24 is, first, the linkage with recital 23, signalled by “Accordingly” and the comparative adjective “greater” applied to “integration”. “Integration” itself is explained in recital 23. It relates to “persons who, having availed themselves of the rights and freedoms conferred on them by the Treaty, have become genuinely integrated into the host Member State”. These recitals show that what was intended was a progression in the restrictions on expulsion, depending on the degree of integration of a person in the country in which he is present as demonstrated by the duration of his residence in the exercise of Treaty rights. In my view it follows that the Member States did not intend the restriction on expulsion envisaged in recital 24 to be applicable to someone who does not qualify for the protection envisaged by recital 23. It is clear from recital 24 that the reason for the restriction on the right of the state to expel someone who has been in this country for many years is his integration into this country. Recital 24 does not envisage that the restriction on expulsion to which it refers should be applicable to a person who has not availed himself of the rights and freedoms conferred on him by the Treaty, but has been compulsorily detained in this country.

If I read Article 28.3 literally, and assume that “resided” means no more than “been present in”, there is no qualification to the period of his presence in this country, and no link with the requirements of Article 16 that he should have resided in this country “legally”. It is clear from recital 23 that “legally” in Article 16 means “in the exercise of the rights and freedoms conferred on them by the Treaty”, as was held by the Tribunal in GN (EEA Regulations: Five years’ residence) Hungary [2007] UKAIT 00073. If the appellant’s submission is well-founded, a person who has been in this country for 11 years, of which 8 were spent in prison, is not entitled to the right of permanent residence, and is therefore not protected by Article 23.2, but is protected by Article 23.3, and cannot be removed except on imperative grounds of public security. That consequence is manifestly inconsistent with recitals 23 and 24. So is the fact that it is impossible to consider the Appellant to have been integrated into this country as envisaged by recitals 23 and 24.

In my judgment, recitals 23 and 24 make clear how Article 28.3 is to be applied in a case such as the present. “Residence” is presence in this country in the exercise of the rights and freedoms conferred by the Treaty. An EEA national who, having been convicted of a crime, is detained for a significant period in prison or other penal institution, is not resident in this country for the purposes of Article 28.3.

I am fortified in this conclusion by the absence of any suggested policy reason why the appellant’s periods in prison should have conferred on him the protection of regulation 21(4)(a) and Article 28.3.

As will be seen, my reasoning is essentially that which appealed to Buxton LJ in HB. The point having been further tested, I have concluded with respect that his provisional view is indeed correct. I see no need for a reference to the European Court.

Since the 2006 Regulations are to be interpreted consistently with the Directive, and regulation 21(4) transposes Article 28(3)(a) of the Directive into national law, it follows that the Tribunal made no error of law when it concluded that regulation 21(4) did not apply to him and rejected HR’s appeal.

This conclusion avoids perverse consequences of Mr Bedford’s interpretation that the European Parliament and the Council could not have intended. An EEA national comes to this country for a short visit. He illegally imports a large quantity of Class A drugs. Having been here for 6 months, he is convicted and a sentence of imprisonment imposed as a result of which he is in custody for 10 years. By reason of his crime, on release he cannot be deported save on imperative grounds of public security. The Secretary of State’s only possible means of avoiding this consequence would be to make a decision to deport him when he is sentenced. Article 21 provides: “Continuity of residence is broken by any expulsion decision duly enforced against the person concerned.” I say “possible” because the effectiveness of this suggestion depends on the due enforcement of the expulsion decision relating back to the date of the decision. Article 33.2 suggests that this is a correct interpretation of Article 21.

For the reasons set out in my judgment, the Tribunal reached a correct decision in law, and HR’s appeal should be dismissed.

I am grateful to Stanley Burnton LJ for his account of the facts and the relevant law. The case turns on the proper construction of certain provisions of the EU Directive 2004/58/EEC to which the Immigration (European Economic Area) Regulations 2006 give effect. The relevant regulations are in substantially the same terms as the corresponding provisions in the Directive and it is trite law that they must be read so as to give effect to the Directive. I will therefore focus on the Directive.

In brief, the Tribunal found that on the assumption that the appellant had qualified as someone permanently resident pursuant to Article 16 (reg.15), his expulsion was lawful. The test for lawfully expelling such persons, as laid down by Article 28.2 (reg. 21.(3)) is whether the Secretary of State had “serious grounds of public policy or public security” to justify the expulsion. The AIT had concluded that he did. A more rigorous test is established by Article 28.3 (reg. 21(4)(a)) for those who have ten years’ residence. Any expulsion can then only be justified if the decision is based on “imperative grounds of public security.” It was conceded before the AIT that if that were the appropriate test, the Secretary of State could not satisfy it. So everything turned on whether the ten year residence had been established or not.

The contending arguments fall within a very short compass. It is conceded that the period actually spent in prison (which would of course typically be shorter than the actual sentence of imprisonment) would not count when determining whether the appellant had “resided legally” for the continuous period of five years necessary to constitute permanent residence within the meaning of Article 16. Mr Bedford, counsel for the appellant, accepts that in order to be someone who had “resided legally”, the residence must be – to use the concept employed in Recital 23 – for the purposes of availing themselves of the rights and freedoms conferred by the Treaty. He accepts that the finding of the AIT is that the appellant never did satisfy that requirement (not even in fact when he was not in prison), and he does not challenge that conclusion.

The short point advanced by the appellant is that whereas the expulsion power under Article 28.2 applies to those permanently resident, which means those who are resident legally under Article 16, the more limited power of expulsion under Article 28.3 applies to those with ten years’ residence or more. Mere residence is enough; the Article does not stipulate that it should be legal residence, in the sense that it is for a purpose laid down in the Directive. Someone is resident if they are simply present in this country as their home, and it matters not whether they are in prison or out of it, or whether they are seeking to avail themselves of the rights and freedoms of being an EU citizen or not.

The Secretary of State submits that this submission fails to read Article 28.3 in the context of the Directive as a whole. Recitals 23 and 24 demonstrate that what the Directive envisages is that the right to remain, subject to restricted powers of expulsion, should be conferred on those who have sought to exercise their rights as EU citizens. Recital 23 talks of people becoming integrated within the host member state by availing themselves of the rights and freedoms of an EU citizen. Recital 24 provides that the degree of protection against expulsion should accordingly be directly related to the degree of integration. That in turn must mean integration by availing themselves of the rights and freedoms of EU citizens, which the appellant never did do. It would be bizarre if someone who did not qualify for permanent residence under Article 16, at least in part because he had spent a lengthy period in prison and could not avail himself of the rights and freedoms of an EU citizen, could nevertheless demonstrate ten years’ residence and therefore only be expelled on the narrower ground requiring imperative reasons of public security There is no real or effective integration when someone is in prison. Such persons cannot work or seek work, and are not exercising any of the rights of a Community citizen. True it is that Article 28.3 does not in terms identify the residence as being legal as it has done in Article 16, but that requirement can and should readily be implied into the provision.

Mr Bedford submits that there is no justification for reading into Article 28.3 this concept of legal residence. There is no reason why the Directive should not confer a very strong right of residence on those who have been in the UK for ten years, irrespective of their reasons for being here or their conduct whilst in the country. Read literally, that is what the Directive says, and it should be read at face value. Moreover, the Directive spells out in some detail when presence in the country is not to count as residence (see e.g. Article 16.3). It should be treated as an exhaustive code. If the Directive had intended to exclude periods spent in prison from the relevant calculation of the ten year period, it would have said so, either expressly or at least by employing the concept of legal residence. If there is any doubt about the position, then the Directive ought to be read in favour of the appellant on the basis that exceptions to the rule - in this case excluding a right of residence that would otherwise arise - should be narrowly construed.

I agree with the submissions of the Secretary of State. I accept that recitals 23 and 24 plainly intend to link the degree of protection to the period of relevant residence, namely residence by those who wish to avail themselves of the rights and freedoms conferred by the Treaty in accordance with the provisions of the Directive. The longer the period of residence of that nature, the more integrated the worker has become and the fuller the protection provided. In my judgment it would not be a purposive construction of these provisions to disallow periods of imprisonment following conviction to count for the purposes of establishing permanent residence under Article 16 and yet to allow the very same period to count for the purpose of establishing the ten year residence under Article 29.3.

In my judgment, if the intention were to confer a clear and unambiguous right to remain, save for imperative matters of public security, for those with ten years’ presence in the country howsoever achieved, this would have been stated in unambiguous terms.

The Secretary of State also advances a wider argument. She submits that in any event it is a misuse of language to say that someone is “resident” when they are in prison. Their incarceration is involuntary, and prison would not in ordinary parlance be described as a prisoner’s place of residence because that presupposes a place where a person wishes to be. This submission reflects the approach of the Tribunal in the case of Chindamo case, referred to by Stanley Burnton LJ (para 14), which was relied upon by the Tribunal in this case. I am not persuaded by that submission. I can see that in some contexts prison might not be properly described as a place of residence. But the issue here is whether the person is resident in the UK generally rather than specifically where he is resident, and in my view such a person would naturally be so described notwithstanding that he is incarcerated in prison. Indeed, if that is not the case then it would appear that he would be resident nowhere, which surely cannot be right.

However, for the reasons I have given, which essentially reflect those set out in the judgment of Stanley Burnton LJ, which I have read in draft, I too would dismiss the appeal.

I would emphasise, however, that this case has been concerned with persons who are incarcerated in prison following convictions for a criminal offence. They have by their own conduct placed themselves where they cannot avail themselves of the rights of EU citizens. It may be that the same considerations do not apply to those who are remanded in custody pending trial, or who successfully appeal their conviction. As Lord Justice Sedley has pointed out, their cases are more problematic. They raise matters for another day.

Because the present case is a clear one in terms of facts and merits, an answer which gives priority to the legislative purpose in the absence of any contrary legislative provision is straightforward and attractive. For this essential reason I agree with the reasoning and conclusion of Lord Justice Stanley Burnton. But where a process of construction which is necessarily of general application is thrust upon a court with no legislative powers, worrying loose ends can be left.

The loose end which emerged most strikingly in the course of argument was whether, if the Home Secretary’s construction is right, time spent in prison on remand for an offence of which the EEC national is eventually acquitted counted towards the period of residence here. Examples can be multiplied, involving not only time wrongly (but not unlawfully) spent in prison but prolonged isolation for other reasons from the economic life of the host state.

If what is to be derived from the Directive is a bald rule that time spent in prison does not count as residence, there is, as Ms Patry Hoskins recognised, a real potential for injustice in the case I have postulated. But such time, if it is not to be lost for good from the computation, will have to be credited back by some further doctrine which it will fall to the courts to devise, but which will necessarily circumvent the legislative purpose which gives rise to the rule, since the individual’s absence from the working community, however unjust, will have been real.

All of this lends some weight, in my view, to the foundational argument for the appellant: if it had been intended to exclude time spent in prison from the computation of residence, nothing would have been easier than to say so, with such ancillary provision as was needed to deal with such things as acquittals. The inclusion of a distinct rule to stop time running after the making and enforcement of a deportation indicates that this problem, while not directly addressed, was not wholly overlooked. But unless member states routinely order deportation at the start of a sentence (as some, it appears, do), problems such as the present one will remain.

For these reasons I am not as confident as Stanley Burnton LJ that the meaning at which we have arrived is the only feasible one. My unease is reinforced by the information which counsel for the Home Secretary was able to put before us about the differing meanings attributed by a number of national courts to the material provisions of the Directive. But the facts of the present case can fall only on one side of the line, wherever it is drawn, since  HR has never worked here and has evidently devoted his life to crime.

Additionally, our preferred meaning seems to me the less objectionable, and the more loyally purposive, of two arguable interpretations. While it will require judge-made adjustments to deal with such things as acquittals following remands in custody, it avoids the otherwise unavoidable mischief postulated by Stanley Burnton LJ of an EEC national who manages to spend much, perhaps in an extreme case all, of an entire qualifying decade serving a prison sentence for a major crime committed on entry.

I too would therefore dismiss this appeal.

As to the fallback application made by each party for a reference should we not be with them, the facts of this case are such that the outcome is, in the view of all of us, acte clair, posing no question requiring referral.