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Questions on the interpretation of the “enhanced protection” in Directive 2004/38, art 28 referred to the CJEU

Secretary of State for the Home Department v Vomero [2015] UKSC 49

Related Member(s):
Raza Husain QC, Nick Armstrong, Prof. Takis Tridimas
Related Practice Area(s):
EU Law, Immigration, Asylum and Free Movement
Court:

On appeal from: [2012] EWCA Civ 1199 

The Secretary of State sought to deport the defendant under the Immigration (European Economic Area) Regulations 2006, regs 19(3)(b) and 21. Reg 21 gives effect to articles 27 and 28 of Dir 2004/38/EC.

The CJEU (Grand Chamber) had in Tsakouridis (C-145/09) suggested that the protection afforded under article 28(2), (3) of Dir 2004/38 was intended to be progressive, with the possibility of the highest (enhanced) protection only being earned after ten years by those already benefitting from the next highest level through having a right of permanent residence. Following MG (C-400/12), it is apparent that the calculations of the time needed to qualify for certain rights under arts 16 and 28(3)(a) are different. The five-year period under art 16 must be continuous but will, once acquired, only be lost by absence or imprisonment lasting two years. The ten-year previous period under art 28(3)(a) may be non-continuous, where interrupted by a period of absence or imprisonment. Whether the ten years is to be counted by including or excluding any such period of interruption is unclear.

As there were indications in the Directive that the art 28(2), (3) protections benefited only those enjoying rights of residence, and that art 28(3) is predicated upon the enjoyment of such a right, (and although the majority of the Court felt otherwise) it was open to suggestion that the right in question was right of permanent residence referred to in articles 16, 28(2). Therefore this question was referred to the CJEU. Further questions were referred on the calculation of the 10 year period, if a right of permanent residence was not required.

Raza Husain QC, Nick Armstrong and Takis Tridimas were involved in this case.