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AIRE Centre case on deportation of EEA nationals referred to Court of Justice of the European Union

28 September 2012

The UK Upper Tribunal has referred a case, brought by the AIRE Centre, to the Court of Justice of the European Union (‘CJEU’). The case concerns the deportation of a Portuguese national, who has lived in the UK for over ten years. The reference, in MG (EU deportation – Article 28(3) – imprisonment) Portugal [2012] UKUT 00268(IAC), could have important consequences for European Economic Area (EEA) nationals who are long-term residents in the UK and who face expulsion after a custodial sentence. EEA nationals are citizens of EU Member States other than the UK or citizens of Iceland, Lichtenstein, Norway and Switzerland.

UK courts can refer cases to the CJEU when they need answers on questions of EU law in order to resolve cases. The CJEU is located in Luxembourg.

The case referred to the CJEU concerns Article 28(3), Directive 2004/38 EC, which states that EEA nationals who have resided in their host member state for ‘the previous ten years’ can only be expelled on ‘imperative grounds of public security’.

The UK authorities have argued that periods of imprisonment break continuity of residence, and that the period of ten years’ residence must be immediately before the decision to deport. The effect of this interpretation is that long-term EEA residents in the UK are prevented from relying on Article 28(3) whenever - as is almost always the case – the decision to deport them follows a custodial sentence. In other words, the UK authorities are arguing that if an EEA national has lived over ten years in the UK, and is then arrested and convicted of an offence, she cannot benefit from the ten-year rule when the authorities try to deport her at the end of her sentence, because for part of the previous ten years she has been in prison. The AIRE Centre believes this approach means that no one will ever benefit from the rule, making it useless, and so this approach must be wrong.

Sabine Zanker, of the charity Hibiscus, who runs a specialist support service for EU female prisoners, and who referred the case to the AIRE Centre in 2010, has welcomed the reference, saying:

We are delighted that the excellent work that the AIRE Centre has been doing for one of Hibiscus’ clients will now lead to a clarification of the extent of protection long term EU residents in the UK can rely upon. The ruling of the [CJEU] will have a direct impact on a number of our clients, many [of whom] have been contributing positively to UK society for many years'’.

The questions referred to the CJEU in this case are as follows:

  1. Does a period in prison following sentence for commission of a criminal offence by a Union citizen break the residence period in the host Member State required for that person to benefit form the highest level of protection against expulsion under Article 29(3)(a) of Directive 2004/38/EC or otherwise preclude the person relying on this level of protection?

  2. Does reference to ‘previous ten years’ in Article 28(3)(a) mean that the residence has to be continuous in order for a Union citizen to be able to benefit from the highest level of protection against expulsion?

  3. For the purpose of Article 28(3)(a), is the requisite period of 10 years during which a Union citizen must have resided in the host Member State calculated (a) by counting back from the expulsion decision; or (b) by counting forward from the commencement of that citizen’s residence in the host Member State?

  4. If the answer to Question 3(a) is that the 10 year period is calculated by counting backwards, does it make a difference if the person has accrued ten years residence prior to such imprisonment?

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