EEA Regulations - Time in prison doesn't count towards "permanent residence"

People who are nationals of European Union countries (as well as nationals of Iceland, Liechtenstein and Norway and Switzerland) and their family members have the right to move freely within the "European Economic Area".   This is the effect of European Council's Directive 2004/38/EC – the Citizens' Directive.  The Immigration (European Economic Area Regulations) 2006 implement the Citizens' Directive in the UK.

By Regulation 15 people who have resided in the UK "in accordance with these Regulations" acquire the right to reside permanently in the UK.

It's far more difficult to remove nationals of EEA states from the UK than it is to remove people who come from outside the EEA and Regulations 19 and 21 cover the limited circumstances in which this can be done.  People who have acquired the right of permanent residence can't be removed "except on serious grounds of public policy or public security", and this requirement is increased to "imperative grounds of public security" when the person concerned has lived in the UK for ten years or more.

So there's a scale whereby the longer a person has resided in the UK the more the Secretary of State has to show a compelling case for his or her removal.

However even where the person neither has the right of permanent residence (by having lived in the UK for five years "in accordance with these Regulations") nor has resided in the UK for ten years – it's still very difficult to remove them.

Such people can only be removed "on grounds of public policy, public security or public health in accordance with Regulation 21".   As well as the "length of residence in the UK" scale referred to above - Regulation 21 also requires (at Regulation 21 (5)) that:

(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.

One of the most notorious cases involving an attempt at removal of an EEA national was that of Learco Chindamo, who had entered the UK in 1987 when he was six years old.  He was convicted of murdering a head teacher in 1995, and was sentenced to twelve years imprisonment.   The Secretary of State made a decision to deport him in 2007.

The appeal in Chindamo came before the Asylum and Immigration Tribunal in 2007.  The Tribunal decided that he hadn't been resident in the UK so as to acquire the right to permanent residence and also that he hadn't been resident in the UK for ten years.  So it wasn't necessary for the Secretary of State to show either "serious grounds of public policy or public security" or "imperative grounds of public security".

But the Tribunal still allowed Mr Chindamo's appeal because of the absence of evidence which showed that the Appellant represented "a genuine, present and sufficiently serious threat"- and because of the bar on reliance on previous convictions. 

In C v Secretary of State for the Home Department : Secretary of State for the Home Department v O  [2010] EWCA Civ 1406 (C & O) the Court of Appeal considered whether a period of time spent in prison could count towards the qualifying period eitherfor permanent residence (requiring"serious grounds of public policy or public security"  or for the ten years (requiring "imperative grounds of public security").

Both the Asylum and Immigration Tribunal (the Asylum and Immigration Chamber of the Upper Tribunal's predecessor) and the Court of Appeal have been concerned about this for some time.  In 2006 the Tribunal said, in MG and VC (EEA Regulations 2006;"conducive" deportation) Ireland [2006] UKAIT 00053:

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.

[Emphasis added]

In the Chindamo case a year later the Tribunal however disagreed with this and found that the time that Mr Chindamo had spent in prison didn't count (at all). 

Then in HR (Portugal) v Secretary of State for the Home Department [2010] 1 W.L.R. 158 the Court of Appeal reached the same conclusion as the Tribunal in Chindamo.   However there was a note of caution sounded by Lord Justice Sedley concerning the scenario of a person held in prison on remand who was then acquitted of the charge against him or her.  In such circumstances the person would be being unjustly deprived of the advantage of time spent in the UK. 

That concern is referred to by the Court of Appeal in its judgment in C & O but not confronted.  The Court concludes that the Tribunal was right to find that time spent in prison doesn't count towards the accumulation of the time needed either to necessitate "serious grounds of public policy or public security" or imperative grounds of public security."

The main reason for this conclusion is that when someone who is in jail is neither working or looking for work.  So there isn't any exercise of treaty rights, and therefore no residence in the UK "in accordance with these regulations".