Periods in prison cannot be counted towards residence permit

European Court of Justice, cases C‑378/12 and C-400/12

Categories: Consumer Law
Typology: Articles
Tags: immigration

In two separate judgments, delivered on 16 January 2014, the CJEU ruled that periods of imprisonment cannot be taken into account for the acquisition of a permanent residence permit or for the grant of enhanced protection against expulsion within the meaning of Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States. Both cases were referred to the CJEU by the Upper Tribunal (Immigration and Asylum Chamber), London. 

The first case, C-378/12, regards the concept of 'legal residence' within the meaning of Article 16 of the Directive. That provision defines the grant of a right of permanent residence for third-country national family members of Union citizens who have acquired the right of permanent residence in a host Member State. In fact, the provision states as follows:

'1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there [...]

2. Paragraph 1 shall apply also to family members who are not nationals of a Member State and who have legally resided with the Union citizen in the host Member State for a continuous period of five years.'

In the national proceedings, Mr Onuekwere, who is a Nigerian national, saw his application for permanent residence in the United Kingdom denied by decision of the Secretary of State on the grounds of having been incarcerated for part of the required continuous period of five years of legal residence.

Mr Onuekwere arrived in the United Kingdom in 1999. The same year he married an Irish national with whom he had 2 children. On 5 September 2000 he obtained a residence permit valid for five years as the spouse of a Union citizen. The permit expired on 5 September 2005.

Between 16 September 2004 and 6 February 2009 Mr Onuekwere has spent a total of three years and three months in detention for various offences.

The Secretary of State adopted twice a decision to deport Mr Onuekwere -on 18 November 2005, two days after his release from prison, and again on 6 February 2009, the day he left prison for the second time.

The first decision was annulled on the grounds that Mr Onuekwere was the spouse of a Union citizen.

Against the second decision the claimant brought appeal before the Upper Tribunal (Immigration and Asylum Chamber), London. That court allowed the appeal, deciding that, even though Mr Onuekwere did not hold a right of residence, since his imprisonment had prevented him from acquiring such a right, he could not be deported for reasons related to his personal circumstances.

Subsequently the claimant applied for a permanent residence card which was denied by the Secretary of State. In the action brought forward by Mr Onuekwere before the First-tier Tribunal (Immigration and Asylum Chamber), the Tribunal decided that the claimant was entitled to a residence card but that he did not hold a right of permanent residence within the meaning of Article 16 of Directive 2004/38.

Mr Onuekwere then brought an appeal before the referring tribunal, arguing that imprisonment had not interrupted the continuity of residence required by the Directive.

The Upper Tribunal (Immigration and Asylum Chamber), London decided to stay proceedings and refer two questions to the CJEU for a preliminary ruling:

  1. 'In what circumstances, if any, will a period of imprisonment, constitute legal residence for the purpose of the acquisition of a permanent right of residence under Article 16 of Directive 2004/38?

  2. If a period of imprisonment does not qualify as 'legal residence', is a person who has served a period of imprisonment permitted to aggregate periods of residence before and after his imprisonment for the purpose of calculating the period of five years needed to establish a permanent right of residence under Directive 2004/38?'

 

In regard to the first question the CJEU recalled that the right of permanent residence is a key element in promoting social cohesion. In fact, the EU legislature made the acquisition of the right of permanent residence pursuant to Article 16(1) of Directive 2004/38 subject to the integration of the Union citizen in the host Member State (see Case C-162/09 Lassal ). Therefore, periods of imprisonment in the host Member State of a third-country national, who is a family member of a Union citizen who has acquired the right of permanent residence, cannot be taken into consideration for the purpose of the aforementioned provision, since the imposition of a prison sentence by a national court is such as to show the non-compliance with the values expressed by the society of the Member State.

Considering the second question, the CJEU asserted that the condition of continuity of legal residence, as set out in Article 16 (2)(3) of the Directive, satisfies the integration requirement which is a precondition of the acquisition of the right of permanent residence. Therefore periods of imprisonment in the host Member State interrupt the continuity of legal residence and preclude the acquisition of the right of permanent residence.

The second case, C-400/12, concerns the grant of enhanced protection against expulsion pursuant to Article 28 (3)(a) of Directive 2004/38. That provision states as follows:

'1. Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.

2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.

3. An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:

(a) have resided in the host Member State for the previous ten years; or

(b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.'

The dispute in the main proceedings regarded the expulsion order of a Union citizen who had resided in the host Member State for a period of over 10 years prior to the deportation order. The question was whether the claimant, Ms G., a Portuguese national, could benefit from the enhanced protection from expulsion provided for in Article 28 (3) of Directive 2004/38, even though she had interrupted the continuity of the required 10-year period with periods of imprisonment.

Ms G. entered the United Kingdom with her husband, who is also a Portuguese national, in 1998. She was employed from 1998 till march 1999, when she gave up work to have her first child. Two further children were born in 2001 and 2004. In 2009 Ms G., having caused various injuries to one of her children, was sentenced to 21 months of prison.

On 11 May 2010, whilst in prison, Ms G. applied for a permanent residence in the United Kingdom. The Secretary of State refused the application and ordered the deportation of Ms G. on grounds of public policy and public security. The First-tier Tribunal (Immigration and Asylum Chamber) allowed the appeal brought forward by the claimant. Next, the Secretary of State brought an action against the decision of the First-tier Tribunal before the Upper Tribunal (Immigration and Asylum Chamber).

The Upper Tribunal decided to stay proceedings and refer four questions to the CJEU, all of them concerning the grant of enhanced protection against expulsion and the 10-year period of residence mentioned by Article 28(3) of Directive 2004/38.

The CJEU clarified once more that the degree of integration is a vital condition for the acquisition of the right of permanent residence as well as for the granting of enhanced protection against expulsion. Since periods of imprisonment must be regarded as interrupting the continuity of residence, it follows that periods of imprisonment cannot be taken into account for the purpose of granting the enhanced protection provided for in Article 28(3). The 10-year period of residence required for the purpose of the provision must be, in principle, continuous.

As regards the calculation of the 10-year period of residence, the CJEU explained that, unlike the necessary period for acquiring a right of permanent residence, which begins with the start of lawful residence in the host Member state, the period must be calculated by counting back from the date of the expulsion order.

Secondly, concerning the implications of periods of imprisonment for the purpose of the grant of enhanced protection, the CJEU stated that periods of imprisonment interrupt the continuity of the required period of residence, consequently preventing the grant of enhanced protection against expulsion.

The court concluded that the fact that Ms G had resided in the United Kingdom for 10 years prior to imprisonment did not grant her enhanced protection against expulsion; however, it specified that such period might be taken into account for the overall assessment required to determine whether the integration links previously established with the host Member State have been broken.

(Altalex, 14 April 2014. Article by Annemieke Lippes)

 

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