Judgement has now finally been delivered in this long running dispute involving the rights of an EEA national to avoid deportation following a serious conviction and the relevant legal tests to be applied to those who have been resident for many years, but who have not established a permanent right of residence
The case proceeded on an appeal to the Court of Appeal, brought by the Secretary of State whose appeal against the decisions of the Tribunal was rejected. The Court of Appeal also rejected the Secretary of State’s appeal and the matter proceeded to a hearing in the Supreme Court. Although a majority of the Court were inclined to reject the appeal, the matter was the subject of a reference to the Court of Justice In Luxembourg. After the ECJ had delivered its ruling on 17 April 2018, in this appeal linked with another from the German courts, the Supreme Court directed a further hearing, the final outcome of which is that:
- Regardless of the length of time spent in the UK prior to the date Council Directive 2004/38/EC of 29 April 2004 came into force, if an individual did not acquire a right of permanent residence on the date the Directive came into force (30 April 2006) he cannot treat the earlier period as giving him a “notional” right of permanent residence as this is not a concept accepted as existing a matter of Community law.
- A period of imprisonment of more than 2 years by 30 April 2006 prevented him from acquiring a right of permanent residence as at that date.
- It would be open to an individual to argue that he had acquired a right of permanent residence since the date the Directive and relevant regulations came into force , and since the date of the deportation decision especially where, as here, there had been a long gap between that original deportation decision and the final resolution of the case.
- The Court left open the question of whether a distinction is to be drawn between the effect of imprisonment on the acquisition of a right of permanent residence, and the effect on the retention of such a right once obtained.
Jawaid Luqmani was instructed by Mr Vomero. The Secretary of State was represented by Robert Palmer QC of Monckton Chambers and Mr Vomero was represented by Raza Husain QC, Professor Takis Tridimas and Nick Armstrong all of Matrix Chambers