EUROPEAN COURT RULES PERIODS IN PRISON CANNOT BE CONSIDERED FOR PURPOSES OF ACQUISITION OF A PERMANENT RESIDENCE PERMIT

Cases C -378/12 and C-400/12 Nnamdi Onuekwere v Secretary for the Home Department, Secretary of State for the Home Department v G

Case C-378/12

Mr Onuekwere’s application for a permanent residence permit was dismissed on the basis that his time spent in prison was not applicable to considerations regarding the acquisition of a permanent right of residence.

It was firstly noted by the Court that a third country national who is a family member of a Union Citizen who has exercised his right of free movement and residence, may only count the periods which he has spent with that citizen for the purposes of acquisition of a right of permanent residence. Therefore, the periods during which he has not resided with that citizen because of his imprisonment in the host Member State, may not be taken into account for that purpose. 

It was further noted by the Court that the EU legislature made the acquisition of the right of permanent residence subject to the integration of the person concerned in the host Member State. It was submitted that time spent in prison evidences non-compliance with State laws and consequentially a failure to properly integrate into that society. Thus considering periods of imprisonment for purposes of acquisition of the right of permanent residence would be contrary to the aims of the Directive.

For these reasons it was held that the continuity of residence of 5 years was interrupted by periods of imprisonment in the host Member State. As consequence of this, the periods which precede and follow the periods of imprisonment may not be added up to total the minimum period of five years required for the acquisition of a permanent residence permit.

Case C-400/12

This case concerned an expulsion order on grounds of public policy against a Portuguese national who had been resident in the UK for more than ten years.

It was opined by the Court that unlike the requisite period for acquiring a right of permanent residence, which begins when the person concerned commences lawful residence in the host Member State, the 10 year period of residence necessary for the grant of enhanced protection against expulsion must be calculated by counting back from the date of the decision ordering the expulsion. It was further noted that the residence must, in principle, be continuous. In relation to integration in society, the court held on the same basis as in Onuekwere, periods of imprisonment cannot be taken into consideration for the purposes of the calculation of the ten year period of residence

It was stated by the Court that periods in prison, in principle, interrupt the continuity of the period of residence for the grant of enhanced protection. However, it was further pointed out that to determine the extent to which the non-continuous nature of the period of residence prevents the person concerned from enjoying enhanced protection, an overall assessment of the situation must be carried out. Such an assessment should consider whether the integrating links between the person and the Member State have been broken, relevant considerations of the imprisonment and furthermore the fact that the person may have been resident in the state for ten years prior to the imprisonment. 

Summary 

In summary, periods spent in prison will not be considered in respect of a permanent residence application, due to that fact that during this time the applicant is not residing with the EU citizen and furthermore, the applicant, as consequence of his violation of that States laws, has failed to evidence integration within that Member State’s society. This was held to be in contravention to the aims and purposes of the Directive. 

In cases where the citizen has been residing in the State for a period in excess of ten years, the residency period necessary for the grant of enhanced protection against expulsion must be calculated by counting back from the date of the decision ordering the expulsion. Furthermore, it was held that in such situations an overall consideration of all relevant factors must be provided in respect of determining the ‘continuity’ of the citizen in questions residence.

Naomi Pollock

Brophy Solicitors