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Will A Prison Sentence Break Your ‘Continuous Residence’ In The UK?

Posted by: Gherson Immigration

In the recent case Secretary of State for the Home Department (Appellant) v Franco Vomero (Italy) (Respondent), the respondent Mr Vomero, who is an Italian national, moved to the UK with his future wife, a UK national, in 1985. In 2001 he was sentenced to five years’ imprisonment for manslaughter and was released in July 2006. On 23 March 2007 the Home Secretary decided to deport him under regulations 19(3)(b) and 21 of the Immigration (European Economic Area) Regulations 2006, which permitted the Home Secretary to deport a national of another member state where the removal was justified on the grounds of public policy, public security or public health. Regulation 21 gives effect to articles 27 and 28 of Directive 2004/38/EC (“Directive”).

In October 2007, the Immigration and Asylum Tribunal (“IAT”) dismissed Mr Vomero’s appeal against the deportation decision. A Senior Immigration Judge then ordered that the IAT’s determination be reconsidered. On reconsideration, the IAT allowed Mr Vomero’s appeal, and this decision was in turn appealed to the Court of Appeal by the Home Secretary. The Court of Appeal dismissed the Home Secretary’s appeal against the second IAT determination which resulted in the case being appealed up to the Supreme Court.

The Supreme Court unanimously allowed the appeal and concluded that it would be necessary for the tribunal, on remittal, to consider not only whether Mr Vomero has acquired a right of permanent residence since the date of the decision to deport him, but also whether there still existed “grounds of public policy or public security” within the meaning of article 28(1) of the Directive on the basis of which his expulsion could be justified. We now wait to see, therefore, whether the court will consider the period of imprisonment for more than two years which Mr Vomero had undergone by 30 April 2006 as preventing him from acquiring a right of permanent residence on that date and whether a prison sentence would break ‘continuous residence’ in the UK.

The UK Immigration Rules provide that a person who has been residing legally in the UK for 10 continuous years can apply to settle in the UK. This is also known as an application under the Long Residence provisions. An applicant who has been granted settlement (also known as “indefinite leave to remain”) under Long Residence provisions can stay in the UK without any immigration time restrictions.

To qualify, the applicant must be able to show at least 10 years continuous “lawful residence” in any immigration category or a combination of different immigration categories. If the applicant is absent from the UK for a period of 6 months or less at any one time, the residence shall not be considered to have been broken. However, if the applicant has been convicted of an offence and was sentenced to a period of imprisonment or was directed to be detained in an young offender institution or secure hospital or has spent a total of more than 18 months absent from the UK during the whole period in question, ‘continuous residence’ shall be considered to have been broken for the purposes of settlement.

Gherson has extensive experience in dealing with Indefinite Leave to Remain applications under all routes. Should you require any assistance or advice, please do not hesitate to contact us.

 

The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.

©Gherson 2019

Image courtesy of UK Supreme Court press office

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