This appeal considered whether, on remittal to the Upper Tribunal, the respondent should be permitted to argue that he had acquired a right of permanent residence by the time of the decision to deport him was made.
The Supreme Court allowed the appeal of the Secretary of State. The Court granted a declaration that neither Directive 2004/38/EC, arts 28(2) nor 28(3) applied to the respondent at the date the appellant decided to deport him.
Considering the previous case law of the CJEU, and its judgment in this case, the Supreme Court considered it necessary to determine whether the respondent acquired a right of permanent residence by the time of the decision to deport him in reality, rather than just notionally. Only having determined this could the Court consider whether he had retained this right. Discussing the Opinion of the Advocate General, and the line of CJEU case law, the Supreme Court held that Lord Mance’s conclusion that the respondent had not acquired a right of permanent residence by the date of the decision to deport him was correct. This was because the period of imprisonment for more than two years which the respondent had undergone by 30 Apr 2006 prevented him from acquiring a right of permanent residence on that date, or at any subsequent time prior to 23 Mar 2007, when the decision to deport him was taken. The Court concluded, therefore, that the necessary period of five years’ continuous legal residence could not begin any earlier than 3 Jul 2006, when he completed the custodial part of his sentence, and would depend on his fulfilling the conditions for legal residence laid down in the Directive.
As such, the Court has remitted the respondent’s appeal to the Upper Tribunal to be reconsidered in accordance with this judgment.
Raza Husain QC, Takis Tridimas and Nick Armstrong were involved in this case.