Carvalho v Secretary of State for the Home Department

These two appeals were listed and heard together because it had been considered that they each raised the same issue, namely the extent to which time spent in prison may count towards the qualifying period for permanent residence under regulation 15(1)(a) of the European Economic Area Regulations 2006 (the Regulations). At the hearing it became apparent that the appeal in the case of Omar Abdullah Omar turns on a different point. Nevertheless, they may still be dealt with in a single judgment. They are both concerned with the power to deport persons whose nationality brings them within the Regulations and Directive 2004/38/EC (the Citizens’ Directive) to which the Regulations owe their origin.

Regulation 15 provides:

Regulation 19(3)(b) provides:

Regulation 21 then provides a decision-making framework for “relevant decisions”, that is those taken on grounds of public policy, public security or public health. It includes enhanced protection depending on the length of residence. It also prescribes applicable criteria. For present purposes, the material parts of regulation 21 are as follows:

Thus the historic power to deport a foreign national on the “conducive to the public good” ground (subject to general ECHR protection) is significantly circumscribed in relation to EEA nationals for whom a distinct code is established, with protection that is enhanced upon this acquisition of a permanent right of residence after five years (“serious grounds of public policy or public security”) and is further enhanced after continuous residence of ten years (“imperative grounds of public security”).

The extent to which time spent serving a sentence of imprisonment in this country may count towards the qualifying periods of five years and ten years is already the subject of domestic jurisprudence. It has sought to construe the Regulations by reference to the Citizens’ Directive and to inform a purposive approach by considering its recitals. One of the features of the Citizens’ Directive is that, when providing for a right of permanent residence after five years, it deploys the language of “resided legally” (Article 16) but when providing for the more enhanced protection based on ten years’ residence, the word “legally” is omitted (Article 28(3)).

Nevertheless, in HR(Portugal) v Secretary of State for the Home Department [2009] EWCA Civ 371, [2010] 1 WLR 158, it was held that the same requirement of lawfulness governs both the 5 year and the 10 year qualifying periods. This assimilation is based on the recitals to the Citizens’ Directive which emphasise that the protection applies to persons who have “availed themselves of the rights and freedoms conferred on them by the Treaty” and “have become genuinely integrated into the host Member State” (recital 23); and “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” (recital 24). Stanley Burnton LJ said (at paragraph 21):

Thus, “legally” means “in the exercise of the rights and freedoms conferred by the Treaty”.

The appellant in HR(Portugal) had been resident in this country for more than 10 years but there was no evidence that he had ever had lawful employment. He had served a number of custodial sentences. Stanley Burnton LJ said (at paragraph 23) that an EEA national who, following conviction, “is detained for a significant period in prison … is not resident in this country for the purposes of Article 28(3)”. Elias and Sedley LJJ expressed agreement with that reasoning, albeit Sedley LJ raised questions about the situation where the person is acquitted following a lengthy remand in custody or on appeal.

Of the other domestic authorities referred to in submissions, I should refer to Bulale v Secretary of State for the Home Department [2008] EWCA Civ 806, [2009] QB 536, in which Buxton LJ said, obiter, (at paragraph 9):

On any view, these authorities are unhelpful to Mr Carvalho (and, indeed, Mr Omar), but his appeal seeks to circumnavigate them.

Mr Carvalho was born on 15 November 1974. He is a citizen of Portugal. He claims to have arrived in the United Kingdom in 2002. There is documentary evidence that he had employment here between May 2004 and September 2006. He has incurred criminal convictions on eleven occasions since 2003. The early convictions included offences of fraud, theft, public order, possession of Class A drugs and possession of an offensive weapon. These were met with a series of non-custodial sentences. However, on 26 July 2006 he was convicted of sexual assault on a female, exposure and common assault for which he was later sentenced to 22 months imprisonment and placed on the Sex Offenders’ Register for ten years.

By a decision dated 20 September 2007, which was about four weeks before Mr Carvalho’s expected release from prison, the Secretary of State notified him that he was to be deported. The Secretary of State dealt with the matter on the basis that Mr Carvalho had not acquired a right of permanent residence as a result of residence for a continuous period of five years. Two reasons were given for this aspect of the decision. The first was that the relevant five year period had to be calculated back from 20 September 2007 and the Secretary of State was not satisfied that Mr Carvalho had entered this country on or before 20 September 2002 as he was somewhat vague about the date of his arrival. The second (and more important for present purposes) was that, in any event, his time in prison did not count and, on that basis, the period of continuous residence fell significantly short of five years.

Mr Carvalho appealed to the Asylum and Immigration Tribunal. His appeal was initially dismissed but in due course he obtained an order for reconsideration which took place before Carnwath LJ (Senior President of Tribunals), sitting with Senior Immigration Judges Allen and Lane, when it was heard along with the remitted appeal of Leopoldo Giampa. The decision of the AIT on reconsideration was promulgated on 19 June 2009: [2009] UKAIT00024. Mr Carvalho was again unsuccessful. The Tribunal carried out a detailed analysis of the domestic authorities. It concluded (rightly, in my view) that the ratio of HR(Portugal) was narrow, being confined to the decision that “in respect of the quality of residence, no distinction is to be drawn between the five year and the ten year periods” (Tribunal, at paragraph 42). However, the passages in HR concerned with whether time in prison can ever count towards either qualifying period of residence were viewed by the Tribunal (at paragraph 43) as “more equivocal, not least because they were expressed following a concession by counsel for the appellant”. The Tribunal also considered a line of European authority which had not been cited to the Court in HR. It concluded that it did not avail Mr Carvalho. It is substantially by reference to that line of European authority that we are now invited to find that the Tribunal fell into legal error.

Of the three European authorities upon which reliance is placed, two were concerned with the position of Turkish workers under the EEC/Turkey Association Agreement and Decision 1/80 which sought to advance it. Turkish workers who registered as belonging to the labour force of a Member State were provided with a menu of rights of ascending advantage depending on whether they had been legally employed for one year, three years or four years (Article 6). In Nazli v Stadt Nürnberg [2000] ECR 1-957 a Turkish worker who had been in continuous paid employment in Germany for 20 years was held not to have forfeited his acquired rights under Article 6 by reason of being detained pending a criminal trial for over a year in respect of an offence for which he was then convicted but for which he received a suspended sentence of imprisonment. Similarly, in Dogan [2005] ECR 1-6237, a Turkish national who had been in Austria for 27 years, during which time he had been legally employed for many years, did not forfeit his acquired rights under Article 6 as a result of a sentence of 3 years imprisonment.

The third authority is Orfanopoulos and Oliveri v Land Baden-Wurttemberg [2004] ECR 1-5257. Although it predated the Citizens’ Directive, it was concerned with the regime which operated under Article 39(3)EC and Article 9(1) of Council Directive 64/221/EEC in relation to movement between Member States. Mr Orfanopoulos was a Greek national and Mr Oliveri an Italian. The issue related to attempts to deport them from Germany. They had each been in Germany for very many years. Indeed, Mr Oliveri was born there. Mr Orfanopoulos had had substantial periods of employment and unemployment. He was a drug addict. Mr Oliveri did not have such an employment record. He too was a drug addict and he had other consequential medical problems. Mr Orfanopoulos incurred a number of criminal convictions over the years before a sentence of imprisonment in 1999. Mr Oliveri had a similar offending pattern, culminating in a sentence of imprisonment in 1999. Much of the judgment of the Court of Justice is concerned with automatically operative provisions of national law and with proportionality. However, the Court also observed:

The case for Mr Carvalho is that that approach, and particularly the observation about a prisoner who “actually finds another job within a reasonable time of release”, accrues to his benefit on this appeal.

The submission of Mr Richard Drabble QC is that Mr Carvalho’s qualifying period in relation to a right of permanent residence under regulation 15 was not broken by his imprisonment; that he had a history of employment; and that he ought to have been permitted to find another job within a reasonable time after his release, in accordance with his intention.

I turn first to the European authorities. I do not consider that Mr Carvalho derives any benefit from Nazli or Dogan. They are self-evidently cases which deal with the possible loss of a long-acquired right by a subsequent term of imprisonment and not with the question whether a specified qualification period of five years is broken by a term of imprisonment. Mr Drabble places greater reliance on Orfanopoulos. There the context was not one of specified qualification periods at all. The legal context was the right of workers to free movement pursuant to Article 39EC which included the right, subject to limitations justified on grounds of public policy, public security or public health:

That provision was augmented by Directive 64/221 which required that measures taken on grounds of public policy or of public security should be based exclusively on the personal conduct of the individual concerned and that previous criminal convictions should not in themselves constitute grounds for the taking of such measures. Against this matrix, Mr Orfanopoulos was in the position where, like the Turkish workers in Nazli and Dogan, he was seeking to rely on rights which had accrued to his benefit before his final imprisonment. As the Court said (at paragraph 51), he “has made use of the right to freedom of movement for workers and has pursued several activities as an employed person in Germany”. He was not in the process of acquiring further rights. No menu of enhancement existed at the time. For this reason, the case is, in my judgment, readily distinguishable from that of Mr Carvalho.

In the determination of the AIT, the position was expressed as follows (at paragraph 67):

What the AIT had in mind by the reference to certainty was that, on the alternative approach, the decision-maker would in each case have to wait for a “reasonable time” after release before knowing whether the person had found further employment in the manner referred to in Orfanopoulos (at paragraph 50). As the AIT said (at paragraph 67):

I agree with this reasoning. It seems to me to be the natural extension of the approach taken in HR(Portugal). It also fits into the pattern of the Citizens’ Directive which, in Article 7, lists specific circumstances in which a Union citizen retains the status of “worker or self-employed person”, notwithstanding interruption of his availability. They do not include the circumstances of imprisonment.

I am fortified in this conclusion by the fact, within the jurisprudence relating to Turkish migrant workers, there is a case subsequent to Nazli and Dogan which adopts a cognate approach. In Sedef [2006] EWECJ C-230/03, the Court of Justice said (at paragraph 45):

In addition, Mr Payne has drawn our attention to the opinion of the Commission, as communicated to the European Parliament and the Council, COM (2009) 313 final, 2 July 2009:

Article 28 is, of course, the source of the five and ten year qualification periods prescribed in the 2006 Regulations. Although the opinion of the Commission is not determinative, it is reassuring that it has come to the same conclusion.

In the course of his submissions, Mr Drabble proffers hypothetical examples which he suggests are unacceptable consequences of this conclusion – particularly the position where a relatively long period of employment is interrupted by a brief sentence of imprisonment. It seems to me that there is a potential for anomalies or hard cases on either construction. What needs to be kept in mind is that a person in the position of Mr Carvalho is not being deprived of a fundamental right as a result of his imprisonment. He simply fails to qualify for the enhanced protection which is given to those who have spent their time in the host State exercising Treaty rights.

For all these reasons, I am satisfied that the approach of the AIT was correct in law on this issue. In the circumstances, it is unnecessary to address the other ground of appeal which related to the elusive evidence concerning the precise date of Mr Carvalho’s arrival in the United Kingdom and whether he had been here for just over or just under five years at the date of the deportation decision.

I would dismiss his appeal.

As I have said in paragraph 1 of this judgment, this appeal was listed for hearing with that of Cesar Carvalho because it was thought that both cases concerned the issue of whether time spent in prison counted towards the qualifying periods for enhanced protection. In the event, this appeal, in which the Secretary of State is the appellant, is in the form of a reasons or a perversity challenge to the original decision of the AIT, whereby Mr Omar’s appeal against a deportation order succeeded. That original decision withstood a reconsideration by Designated Immigration Judge Olson. The case for the Secretary of State is that the Designated Immigration Judge and the Senior Immigration Judge who refused permission to appeal to this Court misunderstood, at least in part, the way in which the application for reconsideration and the subsequent application for permission to appeal were put.

Mr Omar is a Dutch citizen who came to this country in June 2001 when he was aged 17. He has been here ever since. His life here has been one of crime. From small beginnings (a conviction on 10 November 2003 for driving without insurance), he progressed through further convictions in 2004 and 2005 for relatively minor offences for which he received three short custodial sentences, to far more serious matters. In December 2005, he was sentenced to imprisonment for 2 years and 4 months for possession of a Class A drug with intent to supply and having a bladed article in a public place. On 7 March 2006, shortly after his release, he received a further sentence of 2 years and 5 months for possession of an imitation firearm with intent to cause fear of violence. On 12 December 2006 he was served with a notice of a decision to make a deportation order pursuant to section 3(5)(a) of the Immigration Act 1971 but it erroneously referred to him as a Somali citizen. On 6 June 2007 it was replaced with the current decision to make a deportation order under the 2006 Regulations with a view to returning him to the Netherlands. This was followed by a letter of 13 June 2007 containing detailed reasons. As at that date, Mr Omar had spent not less than 2½ of his six years in this country in prison.

The detailed decision letter made no reference to Mr Omar having acquired a right of permanent residence. It referred to the power to deport “on the grounds of public policy, public security or public health” and also to regulation 21. It stated:

The letter then went on to detail the criminal convictions and the contents of an OASys report dated 16 June 2006. I shall have to return to that. The letter also observed that there was no evidence that Mr Omar had ever had legitimate employment in this country. He had not claimed state benefits. The inference was that he did not have the resources to maintain himself without resorting to crime.

Mr Omar’s appeal was heard in the AIT on 27 September 2007. Although his human rights case was rejected, his immigration grounds were upheld. The AIT stated:

The reference to regulation 21(5)(c) and the “genuine, present and sufficiently serious” test was legally correct. The AIT was dealing with the appeal on the basis that, as the Secretary of State maintained, Mr Omar did not have a permanent right of residence. If he had had such a right, the enhanced test of “serious grounds of public policy or public security” (regulation 21(3)) would have applied. It remains the case for the Secretary of State that the AIT was correct as to the applicable test. In the light of our decision in relation to Mr Carvalho, there can be no doubt about that. Mr Payne’s submission is that, although the AIT identified the correct test, its application of it was insufficiently reasoned.

The grounds upon which the Secretary of State sought reconsideration reflected that analysis. The order for reconsideration was also explained as a reasons challenge. The determination of the Designated Immigration Judge on reconsideration contains an early reference to “a person with a permanent right of residence under regulation 15” and to the test of “serious grounds of public policy and security” applicable to such a person. It later refers to the “very high threshold”. It then addresses the reasons challenge before concluding that “although brief, the determination is properly reasoned”.

The Secretary of State sought permission to appeal to this Court, repeating the criticism of the reasons supporting the original decision and extending the criticism to the determination on reconsideration. The refusal of permission by a Senior Immigration Judge, having referred to the reconsideration determination as “sustainable”, then embarked on an exposition as to the “high threshold where European citizens have a permanent right of residence. As I have indicated, he was wrong to raise that point.

We are therefore dealing with this appeal on the basis that, as the AIT originally understood, Mr Omar does not have a permanent right of residence and does not therefore attract the enhanced protection of regulation 21(3). Permission to appeal was granted by Carnwath LJ. Mr Omar did not attend the hearing. Nor was he represented. His solicitors came off the record some months ago. Neither they nor the Treasury Solicitor received acknowledgements of or replies to correspondence directed to his last known address. The Civil Appeals Office was similarly unsuccessful. We have been informed by an email from Mr Payne that, within an hour or so of the conclusion of the hearing, Mr Omar telephoned the Treasury Solicitor and stated that he had just received letters sent to him on 27 October, 2 November and 8 November, each of which had referred to the hearing on 16 November. He said that he had just picked them up from the Post Office. He denied ever having received the listing letter from the Court dated 24 June. He said that he would have sought legal advice if he had known about the hearing in advance of it. This is no way for a litigant in person to conduct litigation. He was totally uncooperative with his solicitors when they were attempting to act in his interests. He even refused to complete an application for public funding. Since his telephone call to the Treasury Solicitor over two weeks ago and a telephone conversation with a member of the Court staff later the same day, he has made no application to this Court. In all these circumstances, we have no hesitation in dealing with the appeal on the basis that he was absent and unrepresented when, with reasonable diligence, he could have been present and/or represented.

In mounting the reasons challenge, Mr Payne acknowledges that his task is a difficult one. We do not lightly interfere with tribunal decisions simply on the ground that the supporting reasons are inadequate. He ruefully suggests that this is an issue in relation to which the Secretary of State is generally less successful as an appellant than individuals are. That calls for no comment beyond the fact that each case is considered on its distinct merits. He also acknowledges that the mere brevity of the reasons is not in itself sufficient to support his challenge. His complaint is that the AIT’s initial determination and the reconsideration determination by the Designated Immigration Judge failed to engage with the material upon which the Secretary of State relies or at least failed to explain why its contents had not produced the opposite result.

In a list of the documents contained in the bundle at the original hearing, the OASys report of 8 June 2006 is included. This had always been an important influence on the Secretary of State’s decision. There were extensive quotations from it in the decision letter of 13 June 2007.

The OASys report assessed the risk of reconviction for non-violent and non-sexual offences within two years of release as being “medium high” and the risk of reconviction for violent offences within two years as being “raised”. The overall risk of reimprisonment within that period was also “high medium”. The author opined:

There was a later reference to “immaturity and general lack of consideration for those around him”. He

Towards the end of the report, the author concluded that Mr Omar’s motivation and capacity to change his ways was negative. His attitude to work whilst in custody was “extremely poor”. His timekeeping was equally poor and he was “argumentative in the workshop”.

On any view, the OASys report was very unfavourable. Apart from its appearance in the list of documents before the Tribunal, it does not feature in the analysis or reasoning set out in the determination of the AIT. There is an acknowledgement of “little evidence of … intention to cease criminal offending”. There is an assertion of “some evidence of attempts at reform whilst in custody” but that is not explained unless it is simply a reference to his having been drug-free and having completed drug courses. There is a conclusion that he “does not represent a genuine, present and sufficiently serious threat” but no explanation as to why the consistently contrary view expressed in the OASys report was being rejected. In my judgment, this plainly amounted to an insufficiency of reasoning. If the explanation to which the Secretary of State was entitled amounted to no more than a vague expression of good intentions on the part of Mr Omar and his mother at a time when, apparently, he was subject to bail conditions, the decision may even have been perverse but it is not necessary for us to categorize it as such.

The decision of the Designated Immigration Judge on reconsideration was to the effect that the original determination had been “properly reasoned and in accordance with the law”. I disagree. I am satisfied that the original determination was legally flawed because it was unsupported by adequate reasoning and that the decision on redetermination was vitiated by a material legal error, namely the failure to identify the legal flaw in the original decision. At no point has there been a reasoned explanation of why the views expressed in the OASys report and adopted by the Secretary of State were rejected. It follows that I would allow the appeal of the Secretary of State, quash the decision on reconsideration and remit the case to the Upper Tribunal. Mr Omar would be well advised to obtain legal representation and to attend at that stage.

Mr Drabble submitted that this court should face up to the question whether a short term of imprisonment on the part of an EEA worker during his first five years in the United Kingdom means that the time needed to establish a right permanently to reside has to begin anew after his imprisonment has concluded. This question was, in a sense, left undecided in HR (Portugal) because in that case the appellant had never worked in the United Kingdom and that authority does not therefore conclude the question in favour of the Secretary of State.

I agree with Mr Drabble that the question he poses has to be faced at some stage and that this is the case in which to do so. In my view HR (Portugal) does, in reality conclude that question because, once one recognises that the purpose of according to a worker a right permanently to reside in a EU state is that of encouraging the integration of such workers into the population of the host state and that such purpose is not achieved or achievable in prison, it must follow that the worker is not legally resident in the host state as an EEA worker during the period of imprisonment and that any period, which includes that period of imprisonment, cannot be part of the necessary “continuous” period for the purpose of calculating the five years continuous legal residence necessary to acquire the right permanently to reside here.

It is comforting, if hardly decisive, that the European Commission apparently takes the same view.

I therefore agree with Maurice Kay LJ that Mr Carvalho’s appeal must be dismissed.

I also agree that the Secretary of State’s appeal in Omar must be allowed.

I agree that the appeal of Cesar Carvalho should be dismissed, for the reasons given by Maurice Kay and Longmore LJJ. I also agree that the Secretary of State’s appeal in the case of Omar should be allowed, for the reasons given by Maurice Kay LJ, with the consequences set out in paragraph 45 of his judgment.