Whether time spent in prison could count towards the time required for permanent residence application

Whether time spent in prison could count towards the time required for permanent residence application

Carvalho v Secretary of State for the Home Department [2010] EWCA Civ 1406 (14 December 2010)

This case concerns Regulation 15 (1) (a) of the European Economic Area Regulations 2006 (herein after referred to as the Regulations). The court considered whether time spent in prison could count towards the time required for permanent settlement. The case concerned the power to deport persons who as a result of their nationality, came within the Regulations and the Directive 2004/38/EC.

The court dealt with the relevant Regulations in turn.

Firstly Regulation 15: This provides that an EEA national may acquire permanent residence once they have accumulated 5 years residence in the United Kingdom having lived here in accordance with the Regulations. Permanent residence can then be lost of the person spends over a consecutive two years away from the UK.

Regulation 15 is subject to Regulation 19(3)(b) which provides that a person who has acquired permanent settlement can be removed from the UK on the grounds of public policy, public security or public health.

The court in turn looked at Regulation 21 which provides a framework for decisions taken on public policy, public security or public health grounds. Regulation 21(4) states that "a relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who has resided in the UK for a period of at least 10 years prior to the relevant decision" .

Decisions made on the grounds of public policy and public security must be proportional and be based exclusively on the conduct of the person. That conduct must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society'. Previous criminal convictions are not to justify the decision and regard must be had to the person's personal circumstances such as age, health and family.

The time spent serving a prison sentence may be counted towards the five years qualifying period. Reference was made to the Citizen's Directive which uses the term resided legally' when calculating the time spent towards the five years whereas this is omitted from the wording for ten years residence. Thus the term legally' in this context meant the exercise of rights and freedoms as conferred by the Treaty.

The appellant in this case was a Portuguese national who had been residing in the UK since 2002. He had been convicted of many criminal offences (non custodial sentences) until his last offence when he was convicted for 22 months imprisonment for sexual assault. He was placed on a sex offenders list for ten years. Shortly prior to the end of his prison term. The Secretary of State notified him of their intention to deport him and relied on the fact that he had not acquired permanent settlement in the UK.

The appellants appeal was dismissed and went to reconsideration where it was again unsuccessful.

It was ultimately decided that this appellant's appeal should be dismissed. Reference was made to article 28 of the Citizen's Directive (which deals with the calculation of the duration of residence) and the European Commission's opinion communicated to the Parliament and Council on 2nd July 2009 stating that; time spent behind bars does not necessarily count towards the qualifying period. In this case, the appellant had not been exercising his treaty rights in the host member state and could not therefore, benefit from the enhanced protection.

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