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PRESS RELEASE: C-400/12 Secretary of State for the Home Department v MG

23 January 2014

AIRE Centre Case before CJEU

On 16 January 2014, the Court of Justice of the European Union (‘CJEU’) delivered its judgment in the case of C-400/12 Secretary of State for the Home Department v MG, which concerned protection against expulsion from the UK for EEA national migrants, and in which the AIRE Centre represented the defendant. On the same day, the CJEU delivered its judgment in C-378/12 Onuekwere, on which MG relies, and which concerns the impact of periods of imprisonment on acquiring permanent residence. Both cases are discussed below. 

C-378/12 Onuekwere v Secretary of State for the Home Department

Mr Onuekwere, a Nigerian national, married an Irish national who was exercising a right to reside in the UK under Directve 2004/38. In the next five years, he was convicted of two criminal offences and was in prison for over a year.  The main question for the CJEU was whether his periods of imprisonment could count towards the five years’ legal residence needed to acquire the right of permanent residence under Article 16(2) Directive 2004/38.

The CJEU answered this question with a resounding ‘no’. Since the right of permanent residence was designed to promote social cohesion and ‘strengthen the feeing of Union Citizenship’ its acquisition, said the Court, depends on an individual being genuinely integrated into the host Member State. A prison sentence, according to the Court, indicates non-compliance with the values of society, as expressed through its criminal justice system. So, allowing periods of imprisonment to count towards the acquisition of permanent residence would undermine the purpose of Article 16(2). The Court further concluded that periods of imprisonment interrupt continuity of residence for the purposes of Article 16(2).

 C-400/12 Secretary of State for the Home Departmentn v MG

MG, a Portuguese national, was served with a deportation decision towards the end of a custodial sentence in the UK. MG had acquired the right of permanent residence and lived in the UK for a continuous period of at least ten years before receiving her sentence. Appealing against the decision to deport her, MG relied on Article 28(3) of Directive 2004/38, which says:

…(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… 

The main issue in MG’s appeal was whether her period of imprisonment, prevented her from relying on Article 28(3)(a). In summary, the CJEU considered the following questions:

  1. Whether a period in prison for a criminal offence by a Union citizen breaks the residence period required for that person to benefit from Article 28(3)(a)
  2. Whether reference to ‘previous ten years’ means that the residence has to be continuous
  3. Whether the requisite period of ten years’ residence is calculated by (a) counting back from the expulsion decision; or (b) counting forward from the start of that citizen’s residence in the host Member State
  4. Whether, if the answer to Question 3 is ‘(a)’, it makes a difference if the person has resided in the host Member State for ten years before such imprisonment

Considering Questions 2 and 3 together, the CJEU concluded that the period of residence referred to in Article 28(3) is calculated by counting backwards from the date of the expulsion decision and ‘must, in principle, be continuous’. However, in reaching this decision, the Court reiterated its finding in Case C-145/09 Tsakouridis that in order to determine whether an individual has been resident for the requisite ten year period, ‘all relevant factors must be taken into account in each individual case’. This, together with the Court’s observations on Questions 1 and 4 (see below), implies that breaks in continuity of residence will not automatically prevent Union citizens from relying on Article 28(3)(a). Instead, a case-by-case assessment is required.

The Court went on to consider Questions 1 and 4 together.  Reitrating that, under the Directive, the level of protection against expulsion for Union Citizens depends their degree of integration into the host Member State, the Court found (relying on Onuekwere) that periods of imprisonment, in principle, interrupt continuity of residence for the purposes of Article 28(3)(a).

However, the Court went on to indicate that this isn’t the end of the story. At [35] it said: 

 ‘As for the question of the extent to which the non-continuous nature of the period of residence during the 10 years preceding the decision to expel the person concerned prevents him from enjoying enhanced protection, an overall assessment must be made of that person’s situation on each occasion at the precise time when the question of expulsion arises’

So, according to the Court, neither periods of imprisonment nor breaks in continuity of residence during the ten-year residence period referred to in Article 28(3)(a) automatically prevent an individual from benefiting from the protection of that provision.  Instead, an individual assessment of each case is required. The question, said the Court, is whether the integrating links previously forged with the host Member State have been broken. Periods of imprisonment are one factor that may be taken into account ‘together with the other factors going to make up the entirety of relevant circumstances in each individual case’. The fact that the relevant person resided in his/her host Member State before starting his/her sentence is another factor that may be taken into account.

Where does this leave us? On the negative side, the decision in MG leaves uncertainty about the conditions under which periods of imprisonment will break residence for the purposes of Article 28(3)(a). In particular, the court gives little if any indication of what the ‘other factors going to make up the entirety of relevant circumstances’ is, or under what circumstances an individual will break the integrating links that they have previously formed with their host Member State. Presumably, the individual assessment will need to be carried out in line with the fundamental EU law principle of proportionality but that still leaves a lot of questions unanswered.

On the positive side, however, the Secretary of State for the Home Department will no longer be able automatically to exclude individuals from relying on Article 28(3)(a) where they have served a custodial sentence in the 10 years immediately before their expulsion decision. This is significant, since, in the UK, the Secretary of State’s practice has been to serve deportation decisions during, or towards the end of, a custodial sentence, effectively depriving Article 28(3)(a) of any useful effect. So, in the UK MG at least opens up the possibility of reliance on Article 28(3)(a) to those served a deportation order at the end of their sentence, even if the circumstances in which they will be able to rely on its protection are unclear.

The AIRE centre is very grateful to the European Programme for Integration and Migration, without whose funding we would not have been able to attend the hearing in MG. We are equally grateful to Richard Drabble QC and Leonie Hirst for generously contributing their time and expertise to this case. 

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