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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v Ojo [2015] EWCA Civ 1301 (16 December 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/1301.html Cite as: [2015] EWCA Civ 1301 |
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ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Harris
IA/06986/2013
Strand, London, WC2A 2LL |
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B e f o r e :
Vice-President of the Court of Appeal, Civil Division
LORD JUSTICE LEWISON
and
LORD JUSTICE KITCHIN
____________________
SECRETARY of STATE for the HOME DEPARTMENT |
Appellant |
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- and - |
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JOVITA OJO |
Respondent |
____________________
Mr. Adrian Berry (instructed by The AIRE Centre) for the respondent
Hearing date : 17th November 2015
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Crown Copyright ©
Lord Justice Moore-Bick :
"15.— Permanent right of residence
(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;
. . . "
The important words for present purposes are "in accordance with these Regulations".
"58. Inasmuch as periods of residence of a Union citizen in a host Member State which were completed on the basis solely of a residence permit validly issued under Directive 68/360, but without the conditions governing entitlement to any right of residence having been satisfied, cannot be regarded as having been completed legally for the purposes of the acquisition of the right of permanent residence under art.16(1) of Directive 2004/38, the question then arises as to what the effect is on that acquisition of such a period of residence which occurred before April 30, 2006 and after a period of five years' continuous legal residence already completed prior to that date.
59. In that connection, it should be borne in mind, first of all, that the Court has already ruled that art.16(4) of Directive 2004/38 refers to loss of the right of permanent residence by reason of absences of more than two consecutive years from the host Member State and that such a measure may be justified because, after an absence of that duration, the link with the host Member State is loosened (see Lassal [2011] 1 CMLR 31 at [55]).
60. Next, the Court has also held that that provision falls to be applied independently of whether the periods of residence in question were completed before or after April 30, 2006, for the reason that, since residence periods of five years completed before that date must be taken into account for the purpose of acquisition of the right of permanent residence provided for in art.16(1) of Directive 2004/38, non-application of art.16(4) thereof to those periods would mean that the Member States would be required to grant that right of permanent residence even in cases of prolonged absences which call into question the link between the person concerned and the host Member State ( Lassal [2011] 1 CMLR 31 at [56]).
61. Finally, the Court has held that the application of art.16(4) of Directive 2004/38 to continuous periods of five years' legal residence completed before April 30, 2006 implies, in particular, that absences from the host Member State of less than two consecutive years occurring after those periods but before that date are not such as to affect the link of integration of the Union citizen concerned and, accordingly, those absences are not such as to affect the acquisition of the right of permanent residence pursuant to art.16(1) of Directive 2004/38 ( Lassal [2011] 1 CMLR 31 at [57] and [58]).
62. Such reasoning must also be applied by analogy to periods of residence completed on the basis solely of a residence permit validly issued pursuant to Directive 68/360, without the conditions governing entitlement to any right of residence having been satisfied, which occurred before April 30, 2006 but after a continuous period of five years' legal residence completed prior to that date.
63. Even though art.16(4) of Directive 2004/38 refers only to absences from the host Member State, the integration link between the person concerned and that Member State is also called into question in the case of a citizen who, while having resided legally for a continuous period of five years, then decides to remain in that Member State without having a right of residence.
64. In that regard, it should be noted, as the A.G. has stated in points AG106 and AG107 of her Opinion, that the integration objective which lies behind the acquisition of the right of permanent residence laid down in art.16(1) of Directive 2004/38 is based not only on territorial and time factors but also on qualitative elements, relating to the level of integration in the host Member State.
65. As the situations are comparable, it follows that the rule laid down in art.16(4) of Directive 2004/38 must also be applied by analogy to periods in the host Member State completed on the basis solely of a residence permit validly issued under Directive 68/360, without the conditions governing entitlement to a right of residence of any kind having been satisfied, which occurred before April 30, 2006 and after a continuous period of five years' legal residence completed prior to that date."
24. Secondly, it must be recalled that, as recital (17) in the Preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that Directive in order to strengthen the feeling of Union citizenship. The European Union legislature accordingly made the acquisition of the right of permanent residence pursuant to article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host member state: see Secretary of State for Work and Pensions v Lassal (Child Poverty Action Group intervening) (Case C-162/09) [2010] ECR I-9217; [2011] All ER (EC) 1169, paras 32 and 37.
25. Such integration, which is a precondition of the acquisition of the right of permanent residence laid down in article 16(1) of Directive 2004/38, is based not only on territorial and temporal factors but also on qualitative elements, relating to the level of integration in the host member state (see Secretary of State for Work and Pensions v Dias (Case C-325/09) [2011] ECR I-6387, para 64), to such an extent that the undermining of the link of integration between the person concerned and the host member state justifies the loss of the right of permanent residence even outside the circumstances mentioned in article 16(4) of Directive 2004/38: see Dias's case, paras 59, 63 and 65.
26. The imposition of a prison sentence by the national court is such as to show the non-compliance by the person concerned with the values expressed by the society of the host member state in its criminal law, with the result that the taking into consideration of periods of imprisonment for the purposes of the acquisition by family members of a Union citizen who are not nationals of a member state of the right of permanent residence for the purposes of article 16(2) of Directive 2004/38 would clearly be contrary to the aim pursued by that Directive in establishing that right of residence.
27. In view of all the foregoing considerations, the answer to the first question is that article 16(2) of Directive 2004/38 must be interpreted as meaning that the periods of imprisonment in the host member state of a third country national, who is a family member of a Union citizen who has acquired the right of permanent residence in that member state during those periods, cannot be taken into consideration of the context of the acquisition by that national of the right of permanent residence for the purposes of that provision."
Lord Justice Lewison :
Lord Justice Kitchin :