Upper Tribunal
(Immigration and Asylum Chamber)	 
  
MG (EU deportation – Article 28(3) – imprisonment) Portugal [2012] UKUT 00268(IAC) 

THE IMMIGRATION ACTS

Heard at Field House	Determination Promulgated	
on 8 August, 7 October 2011,
21 May 2012		
	…………………………………	

Before

UPPER TRIBUNAL JUDGE STOREY
UPPER TRIBUNAL JUDGE ALLEN

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

MG

Respondent

Representation:

For the Appellant/SSHD:	Mr Parkinson (8 August 2011) and Mr P Deller, (7 October 2011, 21 May 2012), Home Office Presenting Officers

For the Respondent/Claimant:	Miss L Hirst, Counsel, instructed by The Aire Centre

This decision refers to the Court of Justice of the European Union the questions set out at the end of it.

ORDER FOR REFERENCE TO THE COURT OF JUSTICE OF THE EUROPEAN UNION

1. This order arises in the context of an appeal by a Union citizen/EEA national against a decision by the Secretary of State to deport her in the light of a criminal conviction for which she received a custodial sentence. Directive 2004/38/EC has introduced a new hierarchy of levels of protection against expulsion based on criteria of increasing stringency, depending, inter alia, on the extent of residence (see recital 23): (i) a Union citizen/ EEA national or their family member who has not acquired permanent residence in the UK may be deported on grounds of public policy or public security or public health (the “basic” level of protection under Article 27(1) and Article 28(1)/ regulation 21(1)) of the Immigration (European Economic Area) Regulations 2006 (hereafter “the 2006 Regulations”)); (ii) a Union citizen/EEA national or their family member with a permanent right of residence may only be deported on “serious grounds of public policy or public security” (the second-highest level of protection; Article 28(2)/regulation 21(3)); (iii) a Union citizen/ EEA national who has resided in the UK for (at least) a 10 year period previous to the deportation decision may only be deported on “imperative grounds of public security” (the highest level of protection; Article 28(3)(a)/ regulation 21(4)(a)). The questions addressed to the Court are to be found at the end of this document: see para 44.

2. Article 28 and regulation 21 respectively provide as follows:

           Article 28
Protection against expulsion
1. Before taking an expulsion decision on the grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2. The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
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; or
 (b) are a minor, except if the expulsion is necessary for the best interests of the child, as provided for in the United Nations Convention on the Rights of the Child of 20 November 1989.

Regulation 21
Decisions taken on public policy, public security and public health grounds
(1) In this regulation a “relevant decision” means an EEA decision taken on the grounds of public policy, public security or public health.
(2) A relevant decision may not be taken to serve economic ends.
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(4) A relevant decision may not be taken except on imperative grounds of public  
(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision; or
(b) is under the age of 18, unless the relevant decision is necessary in his best interests, as provided for in the Convention on the Rights of the Child adopted by the General Assembly of the United Nations on 20th November 1989.
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles—
          (a) the decision must comply with the principle of proportionality;
(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.
(6) Before taking a relevant decision on the grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person’s length of residence in the United Kingdom, the person’s social and cultural integration into the United Kingdom and the extent of the person’s links with his country of origin.

3. The respondent’s (hereafter the claimant’s) status as a Union citizen/EEA national derives from the fact that she is a citizen of Portugal. On 28 March 1998 she married JG, another Portuguese citizen. On 12 April 1998 they travelled together to the UK. Between May 1998 and March 1999 the claimant was employed in the hotel industry. In March 1999 she gave up work to have her first child, M (born 19 June 1999). The couple had two further children, J (born 28 October 2001) and L (born 1 March 2004). Mr JG supported the claimant from March 1999 until their relationship broke down in 2006. Despite separating in December 2006, they remain married. 

4. Their children have faced serious difficulties. In April 2008 the claimant’s three sons were placed in foster care following a report by hospital staff that injuries to L were non-accidental. The local authority initiated care proceedings. On 21 November 2008 a family court judge, HHJ Morgan, determined that the claimant had been responsible for causing the injuries to L. On 17 July 2009 the claimant was convicted on one count of cruelty and three counts of assault by beating to a person under 16 years (L) and was sentenced to 21 months’ imprisonment on 27 August 2009. In October 2009 the family court made a 12 month supervision order and a residence order in favour of Mr JG.

5. When the local authority first became involved the claimant had been allowed supervised contact with her children whilst in the community. In October 2009, by which time she was in prison, the family court made a contact order which provided for supervised contact between the claimant and the children during school holidays and for such further contact as the parents could agree. However, in April 2010 the local authority stopped contact visits and in August 2010 made an application for contact to be suspended. With the move of the father to a different local authority (Manchester) there were no longer any ongoing family court proceedings: the proceedings were ended by consent on or around 26 September 2011. Despite having completed her custodial sentence the claimant remained in custody under Immigration Act powers.

6. What gives rise to this appeal is that on 11 May 2010 the claimant had applied for a certificate of permanent residence in the UK. On 8 July the appellant (hereafter the Secretary of State for the Home Department or SSHD) refused that application and decided to make a deportation order under s.5 of the Immigration Act 1971 on the grounds of public policy and public security pursuant to regulation 21 of the Immigration (European Economic Area) Regulations 2006. The SSHD acknowledged that by the date of the decision to deport in 2010 the claimant had been in the UK over 10 years, but considered that the continuity of that residence had been broken by her imprisonment. Noting that the rationale for the highest level of protection was the degree of integration of Union citizens/EEA citizens and their family members into a host Member State (recital 23), the SSHD stated that: “A person does not become integrated into a host Member State whilst held in one of its prisons.” Nor in the view of the SSHD could the claimant benefit from the second-highest level of protection because she had not shown she had acquired permanent residence; and, even if she had shown that, there were serious grounds of public policy and security for deporting her. A fortiori the claimant could not benefit from the basic level of protection. 

7. The claimant appealed. Her appeal was heard by the First-tier Tribunal (FtT) (Judge Monro and Mrs Greenwood). In a determination sent on 10 January 2011 the FTT found that the claimant had worked between May 1998 and March 1999 and had not left the UK since her arrival. In the absence, however, of evidence to show her husband had been employed or otherwise exercising Treaty rights, the FtT found that she was not the family member of a qualified person under regulation 7 for the period required so as to entitle her to a permanent right of residence. The FtT concluded that she was   nevertheless entitled to succeed in her appeal against deportation because, prior to the decision to deport her, she had been resident in the UK for a period of over 10 years and so she could not be deported unless there existed “imperative grounds of public security”. The FtT considered the SSHD had failed to show that such imperative grounds existed in her case. 

8. The respondent was successful in obtaining a grant of permission to appeal. In a decision notified on 13 August 2011 the Upper Tribunal decided that the FtT had materially erred in law, principally because its reliance on the claimant having accrued over 10 years continuous residence in the UK so as to be able to rely on the highest level of EU protection against expulsion (“imperative grounds of public security”) was contrary to domestic authority, the case of LG and CC [2009] UKAIT 00024 in particular. The Upper Tribunal further considered that it could not re-make the decision itself without help from the parties with obtaining further information relating to the claimant’s husband’s working history and the dates the children had commenced schooling. It is unnecessary to document further stages of case management save to note that in response to Tribunal directions the SSHD confirmed that, as a result of enquiries made with Her Majesty’s Revenue and Customs (HMRC), it was now accepted that the claimant’s husband had been employed for most of the time since arrival in the UK and hence that the claimant had qualified for permanent residence in May 2003 on the basis of a combination of her own period in employment and as the family member of an EEA national/Union citizen exercising Treaty rights over the further requisite period. (The SSHD also accepted that for this purpose, as a result of the Court of Justice rulings in Lassal (European citizenship) Case C-162/09; [2011] Imm AR 134 and Maria Dias v SSWP [2011] EUECJ C-325/09, the claimant was entitled to count periods of residence prior to the coming into force of 2004/38/EC (implemented into UK law by the 2006 Regulations on 30 April 2006.) It was also conceded by Mr Deller on behalf of the Secretary of State that as regards the claimant’s permanent residence there was nothing to show she had lost this by virtue of absence exceeding two consecutive years (Article 16(4)). During the period whilst awaiting a response from the SSHD regarding the husband’s employment history, the Tribunal also directed the claimant’s legal representatives to produce an up-to-date medical report on the claimant (this resulted in the production of a report dated 23 January 2012 from Dr D Coffey).  In response to the Tribunal's earlier directions seeking confirmation of the dates on which the claimant’s three children commenced education, Miss Hirst asked us to accept the dates identified by the  AIRE Centre in recent correspondence, namely September 2004 for  the eldest, January 2007 for the second eldest and summer 2009 for the youngest.

9. We note two further matters that have happened during the course of the proceedings. Although (as already noted) on completion of her custodial sentence on 11 July 2010 the claimant remained in detention under separate Immigration Act powers, on 20 March 2012 she was successful in obtaining a grant of bail, which continues. The other matter relates to the constitution of the Upper Tribunal panel. With the consent of the parties UTJJ Storey and Jarvis were joined for the hearing on 7 October 2011 by UTJ Allen. By the time of the hearing in May 2012 the hearing continued with UTJJ Storey and Allen presiding, UTJ Jarvis being unable to sit due to illness; again this was with the consent of the parties.  

The claimant’s personal and family circumstances

10. Whilst there is no dispute about the basic facts of the claimant’s case, the various reports carried out in respect of her criminal conduct and her attempts to have contact with her children have expressed somewhat differing views. In her refusal letter the SSHD placed heavy reliance on a NOMS (National Offender Management Service) OASys (Offender Assistance System)  report completed on 5 July 2010 noting that on arrest she was addicted to heroin and had admitted associating with other substance misusers. The author noted that on 18 April 2010, Bronzefield prison reported that the claimant had threatened to strangle any child she saw either in prison or outside as she could not stand being near children. The author assessed the level of risk of her harming both her own children and children in general as “high” noting that she “continues to deny index offence” and “has made threats against other children in general”.  It also noted her history of substance misuse. Other reports expressing similar concerns include a psychiatric report by Dr C McEvedy of 24 April 2009, a report by Dr P Yates (Child, Adolescent and Family Psychiatrist), 24 April 2009, a social work report by Mr J Ruddick, 27 August 2010 and a report by Dr J Smith, 9 December 2010. On the other hand, the report by social worker Mr C Flatman, February 2009 took a more sanguine view and considered that rehabilitation of the claimant‘s relationship with her children was possible. The family court judge’s findings in July 2011 noted that the claimant had yet to demonstrate that she could maintain a stable, drug-free lifestyle upon her release from prison and limited any contact to indirect contact. However, he did not rule out direct contact in the future if the claimant made improvements. Although accepting  that the children would be devastated if their mother were to be removed from the UK permanently, the judge said that nevertheless “the risk of emotional harm to them is…too great to allow direct supervised contact to take place in the immediate future and can only be contemplated once [the claimant] has worked on her problems ….”.The most recent report, by Dr Coffey, dated 23 January 2012  records an improvement in her mental state but  states that the prognosis for her future rehabilitation in the community would largely depend upon her engagement with various support agencies and her ability to abstain from illicit drugs and abusive relationships. 

11. Whilst some observations in the above body of evidence have indicated a continuing risk of re-offending, others have not. Even the NOMs report of 5 July 2010 (which had identified a high level of risk of her harming her own or other children) had concluded (albeit with questionable consistency) that her likelihood of re-conviction was “low”. 

12. In order to follow the submissions and our subsequent analysis, it will assist if we set out the following chronology:

Chronology
28.3.98:  C (Claimant) marries JG, another Portuguese citizen
12.4.98:  couple travel together to UK
May 1998 – March 1999:  C is employed in hotel industry
March 1999: C gives up work as pregnant
19.6.1999:  first child, M, born
28.10.2001:  second child, J, born
1.3.2004:  third child, L, born
December 2006: couple separate
March 2008: C arrested for offences of child cruelty
April 2008: concerns having been raised about injuries to child L, the children are placed in foster care and local authority initiates care proceedings
21.11.2008:  family court judge finds C responsible for causing injuries to child L
17.7.2009:  C convicted on 1 count of cruelty and 3 counts of assault by beating to child L
17.7.2009: C remanded in custody pending sentence
27.8. 2009: C sentenced to 21 months imprisonment
16.10. 2009: family court makes supervision and residence order in favour of Mr JG. It allows C supervised contact with children
April 2010: local authority stops children’s contact visits with C and makes an application for contact to be suspended
11.5.2010: C applies for permanent residence
8.7.2010: SSHD refuses that application
 11.7.2010: C completes her custodial sentence but is redetained under Immigration Act powers
19.1.2011: First tier Tribunal finds C not entitled to permanent residence but allows her appeal against expulsion on basis she had accrued over 10 years residence and there were no “imperative grounds of pubic security” to support expulsion. SSHD appeals
5.7.2011 family court maintains supervision order and also makes a prohibited steps order
8.8.2011: hearing before Upper Tribunal
13.8.2011: Upper Tribunal issues decision setting aside decision of First-tier Tribunal for error of law
26.9.2011: family court proceedings ended by consent
7.10.2011: hearing before Upper Tribunal (part-heard)
20.3.2012: C granted bail 
21.5.2012: hearing before Upper Tribunal 
  
Submissions

13. At each of the hearings before the Upper Tribunal, the SSHD (represented by Mr Parkinson at the first hearing and thereafter by Mr Deller) has accepted that if the claimant could benefit from the highest level of EU protection against expulsion, she was entitled to succeed in her appeal, as her criminal conviction did not give rise to “imperative grounds of public security”. However, the SSHD does not accept that she could benefit from that level of protection, because (counting back from the decision to deport in July 2010) her period of custodial sentence which began on 27 August 2009 caused a break in the continuity of her residence so as to mean she could not show the necessary 10 years. That was the only analysis consistent with UK case law, LG and CC in particular.  Miss Hirst for the claimant conceded that if the Asylum and Immigration Tribunal’s analysis in LG and CC was correct, then the claimant could not succeed for the reasons given by Mr Parkinson and Mr Deller. She submitted, however, that we should consider that existing UK Tribunal and Court of Appeal authority - (HR (Portugal) [2009] EWCA Civ 371 in particular -  had been overset by the Court of Justice ruling in Tsakouridis [2010] EUECJ C-145/09 [2011] Imm AR 276. The further point was made that it may be incorrect for regulation 21(4)(a) of the 2006 Regulations to impose a requirement of 10 years “continuous” residence, since Article 28(3)(a) does not specify anything about continuity.

14. As regards whether the claimant was entitled to succeed in her appeal on the basis of the second-highest level of EU protection concerning “serious grounds of public policy or security” (Article 28(2)), we have already noted that the SSHD has modified her original position so that she now accepts that the claimant had acquired and not lost permanent residence. However, she maintains her stance that there were serious grounds for deporting the claimant pursuant to Article 28(2)/regulation 21(3). Miss Hirst for the claimant submitted that the SSHD had not shown that. 

15. Mr Parkinson and Mr Deller also submitted that there were very strong reasons to find that the claimant could not benefit from the basic level of protection. Given the findings of the NOMs report and subsequent concerns expressed by Dr Smith in December 2010, it was clear, they submitted, that the claimant posed a continuing threat to her own if not other children also. Reports by professionals also indicated that she continued to deny the offences and that she was likely to relapse back into substance abuse. Opposed to this, Miss Hirst submitted that for the respondent to justify deportation of the appellant even under the lowest or “basic” level of protection, she would have to show she posed a present and immediate threat to public security and she could not rely on there being general reasons for prevention or deterrence. The appellant's offence was not an index offence that met this test.  In June 2010 the appellant was assessed as being at a low risk of reoffending. She had no previous convictions. Her drugs problem was described as a thing of the past. There was no finding of a general risk to children.  As a matter of law denial of guilt was not a factor impacting on risk of re-offending. This was a very different type of offence from the prolific criminal offending involved in HR (Portugal), LG (Italy) [2008] EWCA Civ 190 and LG and CC. 

16. Both parties accepted that the Tribunal’s eventual proportionality assessment under Article 28 would have to be informed by human rights norms, the Article 8 ECHR right to respect for family life and its Charter equivalent being of particular importance. But even if that assessment was unfavourable to the claimant, it would still be necessary under the Human Rights Act 1998 to consider the claimant’s position in relation to her right to respect for private and family life under Article 8 of the ECHR separately. Mr Parkinson and Mr Deller contended that her deportation would not be a disproportionate step, particularly bearing in mind that the family court had awarded residence to the father and clearly did not consider that it was in the children’s best interests for her to live with them or have direct contact with them. There were also valid interests of the UK served by the deportation decision in maintaining effective immigration control and preventing crime. The crime being one of child cruelty made it serious in nature. Miss Hirst, contrariwise, contended that even if the Tribunal were to find that the decision to deport met EU law requirements, we should find the decision to deport amounted to a disproportionate interference with her Article 8(1) ECHR rights. In this context, she submitted, we could take account of evidence since the deportation decision, which included the fact that the claimant was now out on bail and that the latest medical report of Dr Coffey was much more sanguine about her prospects of becoming in the future a suitable parent. 

Analysis

17. As a result of the SSHD’s concession in the course of proceedings that the claimant had acquired permanent residence by May 2003, the start-point of our analysis must be that she is entitled either to the highest-level or to the second-highest level of EU protection against expulsion. Mr Deller also conceded that as regards the claimant’s permanent residence there was nothing to show she had lost this by virtue of absence exceeding two consecutive years (Article 16(4)). 

18. It is submitted by both parties that our initial task is to determine the duration of the claimant’s residence in the UK so as to decide what level of protection against deportation she was entitled to in the UK for Article 28 (regulation 21) purposes. As regards the wider question of whether the decision to deport was considered to be proportionate under Article 28 (regulation 21) – and the same would apply to free-standing Article 8 grounds of appeal  - Miss Hirst submitted that we were entitled to have regard to more recent evidence.

19. It appears to be the position of both parties that for the purposes of Article 28 and regulation 21, reference to a period of imprisonment must mean the period commencing from the date of the lawful sentence imposed following a criminal conviction (in the claimant’s case, that date being 27 August 2009).  One argument in favour of that view is that it would avoid potentially counting against a person time in prison even when they have subsequently been acquitted or charges have been dropped. (In HR (Portugal) [2009] EWCA Civ 317 at paras 39 (Elias LJ) and 45 (Sedley LJ) stated that it may be necessary to make adjustments to deal with an imprisoned person who successfully appeals his conviction). At the same time, it is a point that their Lordships considered not to be wholly settled and it is not clear how the above basis of calculation addresses the frequent scenario when a person is remanded in custody and then has time spent on remand counted towards the period of sentence (pending trial and/or upon conviction and pending sentence being passed).

20. Both parties submit that , on the basis of LG and CC,  for the purposes of calculating 10 years under Article 28(3)(a) and regulation 21(4)(a), the exercise is one of counting back from the date of decision. (Whether that is correct in law, however, is something we return to below). 

21. As already noted, the SSHD accepts that if, counting back from the decision to deport, the claimant’s period of imprisonment did not break the continuity of her residence for Article 28(3) purposes,  the claimant’s appeal must succeed because there are not “imperative grounds” for deporting her.  The SSHD also accepts that the claimant has completed 10 years’ residence (comprised of 5 years of permanent residence and five further years) prior to being sentenced on 27 August 2009. So far as concerns her permanent residence, she acquired this, as Article 16 of the Directive and regulation 15(1)(b) of the 2006  Regulations, provide, through a combination of her own employment in 2008/9 and  as the family member of a Union citizen’s/EEA national’s (her husband’s) exercise of Treaty rights. So far as concerns her putative 10 years residence for Article 28(3) purposes, she possesses this, if at all, on the basis of herself being a Union citizen/EEA national (unlike Article 16, the personal scope of  Article 28(3) is confined to Union citizens).  
 
Article 28(3)
22. Bearing the above in mind, it seems to us that we should first of all seek to resolve this appeal in the context of Article 28(3)/regulation 21(4): if the claimant’s period of 10 years residence was not broken by her imprisonment, then it is conceded her appeal should be allowed.

23. But in seeking to do that we encounter a very real difficulty. As the Upper Tribunal has observed in two reported cases, Jarusevicius (EEA Reg 21 – effect of imprisonment) [2012] UKUT 00120(IAC) and Onuekwere (imprisonment – residence) Nigeria [2012] UKUT 269 (IAC) (03 August 2012), the law on whether imprisonment breaks continuity of residence for Article 28(2) or Article 28(3) purposes - or indeed for the purposes of acquiring permanent residence under Article 16 - is in a state of uncertainty.

24. On the one hand, UK case law has up until very recently taken the view that imprisonment breaks continuity of residence: see, in the Court of Appeal,  Bulale [2008] EWCA Civ 806; Valentine Batista [2010] EWCA Civ 896; HR (Portugal); Carvalho [2010] EWCA Civ 1406; and in the Tribunal, Ogunyemi (imprisonment breaks continuity of residence) [2010] UKUT 164 (IAC). The Upper Tribunal, of course, is bound by Court of Appeal authority unless there is supervening Court of Justice authority to the contrary.

25. On the other hand, in the Court of Justice in Nazli [2000] ECR I-957, Orfanopolous and Oliveri [2004] ECR-I; and Dogan [2005] ECR I-6237 and 5257, periods of imprisonment on remand or serving a sentence were held not to break the continuity of status as a worker long resident in the host Member State. In addition, there have now been two Court of Justice rulings which appear to proceed on the basis that a recent period of imprisonment does not break continuity of residence for Article 28(3) purposes: Tsakouridis [2010] EUECJ C-145/09 [2011] Imm AR 276 and P. I. v Oberburgermeisterin der Stadt Remscheid (Freedom of movement for persons) [2012] EUECJ C-348/09 (22 May 2012). 

26. At the same time,  in neither Tsakouridis nor PI was the Court asked to rule on the effect of imprisonment as such and there is now the additional fact that Advocate General Bot in his earlier opinion in  PI v Oberburgermeisterin der Stadt Remescheid (Case C-348/09), 6 March 2012, considered that although the integration of a Union citizen was, in fact, based on territorial and time factors, it was also based on “qualitative elements” (he referred to Case C-285/95 Kol [1997] ECR I-3069) and in the instant case reasoned that if acts committed by a person showed he or she was not actually integrated, then to acknowledge that such a person might derive from his criminal conduct the right to enhanced protection under Article 28(3) (Mr I  had committed acts of coercion and rape of a minor daughter of his former partner between 1990 and 2001), would conflict with the values on which citizenship of the Union was based (see paras 49, 53-62). In its subsequent ruling the Court neither rejected nor approved this aspect of the Advocate General’s opinion. 

27. In Jarusevicius (EEA Reg 21 – effect of imprisonment) [2012] UKUT 00120(IAC), the Upper Tribunal chaired by the President, Mr Justice Blake stated at para 60:
      
         “… it is difficult to reconcile the conclusion of the AIT in LG and CC that service of a sentence of imprisonment in the 10 years before the decision to deport prevents the greater protection of ”imperative grounds” arising, with the conclusion of the CJEU in Tsakouridis reached on the basis that it could. In a case where this issue is central to the outcome, it may be necessary to consider whether the UT is able to reach its own conclusion on the matter, or should make a reference to the CJEU or is bound by a CA decision pending any reference that is made by that court.”

28. In Onuekwere (imprisonment – residence) Nigeria [2012] UKUT 269 (IAC) (03 August 2012) another constitution of the Upper Tribunal, conscious of the above observation in Jarusevicius, decided to make an order for reference in a case concerning an appellant who had never spent a period of five years legal residence in the host Member State (UK) if his periods of imprisonment were excluded.
Article 28(2)
29. Given the uncertain state of the law regarding Article 28(3) we gave consideration to whether we could resolve the appeal by reference to the second-highest level of protection, under Article 28(2), “serious grounds of public policy or security”. The SSHD takes the view that  deportation of the claimant is not precluded by application of this test whereas Miss Hirst for the claimant takes the view that it is. We consider this question as being finely balanced. On the one hand, there were positive comments made in some of the various reports by professionals tending to indicate that even in July 2010 the claimant could not be seen as a present threat to society and that the risk of her re-offending was low. A year later, the family court judge in July 2011 did not rule out that the claimant could rehabilitate and that, if she did, direct contact with her children might become appropriate. The latest medical report of Dr Coffey notes an improvement in her mental state and expresses similar hopes in relation to rehabilitation. On the other hand, in the various reports there are serious concerns expressed as to whether the claimant has faced up to her crimes or has demonstrated that she is free of her involvement with heroin and association with substance-abusers; and the risk of her causing harm to her own children and others was assessed in the July 2010 NOMS report as high. In a psychiatric report of 9 December 2010 Dr Smith’s opinion was that she posed a risk to her own children were she to have unsupervised contact with them.  In July 2011 the family court judge found the claimant posed a high risk of emotional harm to her children and stated that “there is clearly a risk of direct physical harm to the children as well but this is not the highest risk as it could be addressed by adequate supervision of direct contact to secure the physical safety of the children”. When considering a criminal conviction involving violence inflicted on a minor and a case with a history of family court proceedings in which the court has taken the view that there should only be indirect contact with the children by their mother (the claimant), the Tribunal is also obliged to attach significant weight to the rights of children to the protection and care necessary for their well-being, as provided for by the United Nations Convention on the Rights of the Child of 20 November 1989 and the Charter of Fundamental Rights of the European Union (and in the UK, by s.55 of the Borders, Citizenship and Immigration Act 2009). Further, as already noted, we are aware that as a result of another panel of this Tribunal having already made an order for reference raising, inter alia, the issue of whether imprisonment breaks continuity of residence for Article 16 purposes (see Onuekwere) the answers given by the Court of Justice to its questions may well have implications for how the proportionality assessment is to be made under Article 28. 
Article 27(1)/Article 28(1)
30. We also gave consideration to Miss Hirst’s submission that we could in any event resolve this appeal by reference to the basic level of EU protection against expulsion (the basic level). We are not able to accept that submission as we are presently persuaded that the SSHD has established that there were grounds of public policy and public security for deciding to deport the claimant. 

31. We also raised with the parties the possible relevance to this appeal of the fact that the claimant’s children are now in education (since September 2004 and June 2007 in the case of the oldest two and summer 2009 in the case of L) and that the claimant is able to pray in aid the fact that up to April 2008 she was the children’s primary carer and thus entitled to a right of residence under Article 12 of Regulation 1612/68. Having heard their submissions on this matter, we think it clear that whilst this may well be a relevant factor in conducting the balancing exercise required under Article 28 of the Directive and regulation 21 of the 2006 Regulations (and also Article 8 ECHR), it cannot be conclusive of the issues we have to decide.  

32. Accordingly, in our judgment, it is essential that we first resolve the Article 28(3) issue.   

33. The test for whether it is appropriate to make a reference as set out in R v Stock Exchange ex parte Else [1993] QB 534 is whether we are able with complete confidence to decide the matter ourselves. We have also had regard to the guidance given by a panel chaired by the President of the Upper Tribunal in MR and ors (EEA - extended family members) Bangladesh [2010] UKUT 449 (IAC). 
34. In deciding whether to make such a reference we have also benefited from the Information Note on references from national courts for a preliminary ruling (2011/C 160/01, 28 May 2011). We note in this regard that in this case: the facts are not in dispute; the EU law issues are likely to be determinative of the outcome of these appeals; the claimant is no longer in detention; the appeal  has been pending for some time and if a reference needs to be made the sooner it is made the better; during the course of the appeal proceedings the parties were asked to consider the issue of whether to make a reference; and both parties were also afforded the opportunity to comment on  a draft of our proposed questions.  
35. It seems to us that the facts of this case raise the issue of whether imprisonment breaks continuity of residence in acute form because the claimant in this case is someone who had accrued 10 years’ continuous residence in a Member State (the UK) prior to imprisonment following conviction. Her case can be contrasted, therefore, with a person who can only show he or she has accrued ten years’ continuous residence if for Article 28(3)(a) purposes the period in prison is counted towards assessment of that period of residence (to take an extreme example, similar to that discussed in HR (Portugal)), consider a Union citizen/EEA national who arrives in a Member State and straightaway commits a crime for which he or she is sentenced to a period of imprisonment in excess of ten years and who, immediately after completing ten years in prison, is subject to a decision to deport). 
36. It also seems to us that there is in fact a logically prior issue, whose resolution is also lacking in clarity. In our deliberations thus far we have proceeded on the basis that in deciding whether a claimant has 10 years continuous residence so as to be able to benefit from an Article 28(3)/regulation 21(4) level of protection against expulsion we must count back from the date of the decision to deport. We have done so because that would appear to be the literal meaning of the words used in Article 28(3)(a) which prohibits an “expulsion decision” being made against Union citizens who “have resided in the host Member State for the previous ten years” and the similar wording in regulation 21(4), which affords the same safeguard to an EEA national who “has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision” (our emphasis). However, it is arguable that such a literal reading is contrary to the purposes of the Directive. Other materials would appear to suggest that calculation of whether a person has sufficient residence to qualify for either of the two higher levels of protection under Article 28(2) or (3) is done by counting forward from commencement of that person’s residence in the host Member State. Recital 23 requires the scope of expulsion measures to be limited in accordance with the principle of proportionality to take account, inter alia, of “the length of their residence in the host Member State” and recital 24 states that “[o]nly in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against Union citizens who have resided for many years in the territory of the host Member State”. Further, in the  Common Position (EC) No 6/2004 adopted by the Council on 5 December 2003, which preceded the introduction of Directive 2004/38/EC,  it was stated at Article 8 that:
 “The Council is almost unanimously against the absolute protection against expulsion, although it has accepted an increased protection for Union citizens who have been residing for a long period in the host Member State. After the acquisition of the right of permanent residence, Union citizens may be expelled only on serious grounds of public policy or public security."
37. In LG and CC the Tribunal noted that the background to Article 8 was explained by the Commission in its communication to the European Parliament of 30 December 2003:- 
"Article 28(2): The Member States were almost unanimously opposed to absolute protection against expulsion for Union citizens and the members of their families who have acquired the right of permanent residence in the host Member State. However, they did agree to increased protection for Union citizens who have lived for a number of years in the host Member State. Consequently the compromise included in the common position takes the form of increased protection depending on the length of residence in the territory of the host Member State.
Once they have acquired the right of permanent residence, citizens of the Union and the members of their families may be expelled only for particularly serious reasons of public policy or public security.
After ten years of residence in the host Member State, Union citizens can be expelled only for overriding public security reasons...."
38. In Tsakouridis, whilst appearing to describe the relevant period for the purpose of engaging Article 28(3) as being “the 10 years preceding the expulsion decision” (see e.g. paras 31, 32), the CJEU stated at para 30 that it started from the premise that “like the right of permanent residence, enhanced protection acquired after a certain length of residence in the host Member State is acquired after a certain length of residence in the host Member State…”. 
39. Another consideration is that, as noted by the Tribunal in LG and CC at para 78, there does not appear to be a similar requirement imposed in respect of accruing the 5 year period of residence for Article 28(2) purposes and:
“ It is not clear from the contemporary materials or the Preamble why this difference was made between the two tests. The Commission's report treats the two tests as differing only in length of time. The Preamble to the Directive refers simply to "Union citizens who have resided for many years in the territory of the host Member State", without mentioning an end-date.”
40. Clearly in deciding whether the claimant can benefit from the highest level of protection by virtue of having 10 years’ residence, it makes a significant difference which approach is taken. If one counts forward from when she first exercised Treaty rights in April 1998 (and continued to do so after she ceased work as the family member of her husband because he continued to work), she acquired permanent residence in May 2003 and by the time she was sentenced to immediate imprisonment in August 2009 she had already accrued ten years’ continuous residence. If, however, one counts back from the decision to deport of 8 July 2010,  she can only benefit from the highest level of protection if as a matter of law imprisonment (in her case from 27 August  2009  to 11 July 2010) does not break the continuity of her residence during the period 8 July 2000- 8 July 2010.
41. There are also two matters relating to the nature of the 10 years’ residence necessary to qualify for the highest level of protection against expulsion. One concerns the issue of its continuity. The claimant’s representatives have argued that whereas regulation 21(4)(a) of the 2006 Regulations imposes a requirement that the 10 year period must be “continuous”, Article 28(3)(a) (which it is supposed to implement) does not.  It seems to us that resolution of this issue may have a bearing on the proceedings before us.
42. The other matter relates to the issue of its legality. Whereas the claimant’s representatives accept that for the purposes of establishing permanent residence under Article 16, residence must be legal (i.e. residence in accordance with Article 7(1) of the Directive: see Cases C-424 and 425/11 Ziolkowski, para 46), they argue that it remains an open question as to whether a Union citizen’s residence would have to be legal for Article 28(3)(a) purposes either for the full 10 years or indeed for any portion thereof. They point out that in Tsakouridis at para 31 the Court stated that Article 28(3)(a) “[makes] the enjoyment of enhanced protection subject to the person’s presence in the Member State concerned for 10 years preceding the expulsion measure” and refers to the “decisive criterion” being “whether the Union citizen has lived in that Member State for the 10 years preceding the expulsion measure”. They also point out that in future cases the Tribunal may have to decide cases involving Union citizens who have been present in the UK for 10 years but who may not have exercised residence rights under the Directive during that time. However, as we understand it there is no dispute that (through a combination of working in her own right and remaining married to a Union citizen who has continued to exercise Treaty rights) the claimant’s residence has always been “legal” in any event, and so for the purposes of these proceedings this issue is purely hypothetical. Whilst we do not therefore think it right to raise it as a question, we are conscious that in a significant number of cases involving the application of Article 28(3)(a) this may be a material matter. 
43. Returning to the matter noted at para 19 and perusing the case law, we also observe a lack of clarity as to precisely how, if imprisonment  is considered to break continuity of the requisite period of residence for either Article 16, Article 28(2) or Article 28(3) purposes, the relevant period of imprisonment is to be calculated. If it is calculated from the date on which a person is sentenced to immediate imprisonment, that may ignore time spent in prison on remand. Certainly in the UK usually the sentencing judge will permit time spent on remand (pending trial or following conviction and pending sentence) to be counted towards the sentence of imprisonment. If the period is calculated from commencement of physical detention, that might mean including a period of detention on remand pending trial even when a person’s conviction is subsequently quashed on appeal. Whilst, in view of the fact that the claimant was never remanded in custody (she remained on bail until she was sentenced), we think the issue too hypothetical to make the subject of a question in this case, we are conscious that if the Court does not address it at all, it may reduce the utility of its guidance in a significant number of cases in which there has been a period of remand in custody (either before conviction or after conviction and before sentence). 
44. There are therefore the following questions that need resolution:
 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 from the highest level of protection against expulsion under Article 28(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 purposes 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? 
45. Bearing in mind that the recent order for reference made by another constitution of the Immigration and Asylum Chamber in Nnamdi Onuekwere v Secretary of State for the Home Department (C-378/12, lodged at Court Registry on 3 August 2012) has posed questions on the different but related issue of whether acquisition of a permanent right of residence is prevented if the period of 5 years relied on is broken by a period of imprisonment following a conviction, it will be a matter for the Court to decide whether to join this case to it or take some other action. 

46. In light of the effect which this order for reference is likely to have on other cases involving the expulsion/deportation of Union citizens or their family members, the Tribunal would also respectfully request that the CJEU consider it pursuant to its accelerated procedure. Although the claimant in the present case is not any longer in detention, there is a clear risk that Union citizens or their family members in other cases which turn on the answer to the questions raised (both in the UK and in other Member States) will face detention and that their detention may be prolonged as a result of these proceedings. The EU-wide interest in speedy resolution may be thought to be akin to that acknowledged by the Court in Metock & Others (Area of Freedom, Security and Justice) [2008] EUECJ C-127/08.There is accordingly a strong public interest in application of the CJEU’s accelerated procedure under Article 104(a) of the Rules of Procedure.  

47. We have made an anonymity order as we consider that to be in the best interests of the claimant’s children.

Signed								Date

Upper Tribunal Judge Storey