Court of Appeal
Published March 11, 2011
Carvalho v Secretary of State for the Home Department
Before Lord Justice Maurice Kay, Lord Justice Longmore and Lord Justice Stanley Burnton
Judgment December 14, 2010
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Time spent in prison by a European Economic Area worker did not count towards his qualifying period for permanent residence.
The Court of Appeal so stated, when, inter alia, dismissing the appeal of Cesar Carvalho, a Portugese national, against the dismissal by the Asylum and Immigration Tribunal on June 19, 2009, of his appeal against deportation.
Mr Richard Drabble, QC and Mr Mikhil Karnik for Mr Carvalho; Mr Alan Payne for the Home Secretary.
LORD JUSTICE MAURICE KAY said that the issue was the extent to which time spent in prison counted towards the qualifying period for permanent residence under regulation 15(1)(a) of the Immigration (European Economic Area) Regulations (SI 2006 No 1003) and also concerned the power to deport persons whose nationality brought them within those Regulations and Directive 2004/38/EC, the Citizens’ Directive (OJ April 30, 1984, L158).
His Lordship agreed with the tribunal that under the Directive it became particularly important that the quality of residence required during the five years was such as to meet the objective of the Directive to recognise genuine integration and enabled the test to be applied with certainty.
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What was meant by certainty was that, on the alternative approach, the decision-maker would in each case have to wait for a reasonable time after release before knowing whether the person had found further employment in the manner referred to in Orfanopoulos and Oliveri v Land Baden-Wurttemburg ([2004] ECR I-5257, para 50).
As the tribunal had said, the effect would be to impede the ability of member states to take expulsion decisions in cases of persons whose crimes resulted in imprisonment; precisely the category of persons in respect of whom expulsion might be most necessary.
His Lordship agreed. It seemed the natural extension of in HR (Portugal) v Secretary of State for the Home Department (The Times June 15, 2009; [2010] 1 WLR 158).
It also fitted into the pattern of the Citizens’ Directive. A Union citizen did not retain the status of worker or self-employed person while in prison: see article 7.
Lord Justice Longmore and Lord Justice Stanley Burnton agreed.
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Solicitors: Paragon Law, Westminster; Treasury Solicitor.