Regulation 27 of the Immigration (EEA) Regulations 2016 prescribes criteria in relation to the removal of EEA nationals on the grounds of public policy, security or health. Broadly, the regulation prescribes three different levels of removal criteria depending on the EEA national’s length of residence in the UK. For residence of less than five years, a general public policy or security test; for residence of more than five (but less than ten) years where permanent residence has been acquired, a ‘serious grounds of public policy or security’ test; and for residence of more than ten years, an ‘imperative grounds of public security’ test.
In Secretary of State for the Home Department v MG Case C-400/12 (16 January 2014), the Court of Justice held that the ten years’ period of residence referred to in Article 28(3)(a) of Directive 2004/38/EC (which is implemented in the ‘imperative grounds of public security’ test in regulation 27(4)) had to be continuous, and calculated by counting back from the date of the decision ordering the expulsion of the person concerned (i.e. the date of the deportation order). A period of imprisonment could in principle break the continuity of the period of residence, but there still had to be an overall assessment required to determine whether the integrating links previously forged with the host Member State had been broken.
In MG (prison-Article 28(3) (a) of Citizens Directive) Portugal  UKUT 392 (IAC), the Upper Tribunal held that the Court of Justice’s judgment in MGshould be understood as meaning that a period of imprisonment during the 10 years period does not necessarily prevent a person from qualifying for enhanced protection if that person is sufficiently integrated. However, according to the Upper Tribunal, ‘the fact that the Court specified that “in principle” periods of imprisonment interrupt[ted] the continuity of residence for the purposes of meeting the 10 year requirement [could] only mean that so far as establishing integrative links [was] concerned such periods must have a negative impact’.
In Secretary of State for the Home Department v Vomero (C424/16) (17 April 2018), the Court of Justice held that the condition of the deportee having ‘resided in the host Member State for the previous ten years’ laid down in Article 28(3)(a) could be satisfied where an overall assessment of the person’s situation, led ‘to the conclusion that, notwithstanding that detention, the integrative links between the person concerned and the host Member State [had] not been broken. Those aspects include[d], inter alia, the strength of the integrative links forged with the host Member State before the detention of the person concerned, the nature of the offence that resulted in the period of detention imposed, the circumstances in which that offence was committed and the conduct of the person concerned throughout the period of detention.
Deportation cases where the EEA national’s ten years’ residence has been interrupted by imprisonment thus require their immigration solicitor or barrister to present in detail in any Tribunal appeal, their client’s integrative links to the UK. The length of residence alone will not be sufficient to enable the EEA national to resist deportation.