Case No: C5/2014/3319
Neutral Citation Number: [2016] EWCA Civ 13
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
[2014] UKUT 00313 (IAC)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 14/01/2016
Before :

LORD JUSTICE RICHARDS
LADY JUSTICE MACUR
and
MR JUSTICE CRANSTON

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Between :

	Secretary of State for the Home Department	Appellant	
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	Benedetto Vassallo	Respondent	

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Brian Kennelly (instructed by The Government Legal Department) for the Appellant
Stephen Knafler QC and Greg Ó Ceallaigh (instructed by Turpin & Miller LLP) for the Respondent

Hearing dates : 2 December 2015
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Judgment
Lord Justice Richards : 
1.	This is an appeal by the Secretary of State for the Home Department against a determination of the Upper Tribunal (Immigration and Asylum Chamber) in a deportation case.  The Upper Tribunal’s determination is reported as Vassallo (Qualifying Residence; pre-UK Accession) [2014] UKUT 00313 (IAC).  The hearing of the appeal was listed in this court under the title BV (Italy) v Secretary of State for the Home Department but there is no reason for maintaining the anonymity of Mr Vassallo, the respondent to the appeal.
2.	Mr Vassallo is an Italian national, born on 1 January 1948, who came to the United Kingdom as a young child and has been resident here ever since, with only minor absences from the country.   He entered the country lawfully in 1952 with his parents, Italian nationals who came to work here.  He lived here with them as a dependent relative from the time of his arrival until 1963.  In 1968 he married a British citizen, by whom he had two children who are also British citizens.  It is common ground that, having originally been granted leave to land without restriction as a child pursuant to the Aliens Restriction Act 1914, he acquired indefinite leave to remain by operation of section 34(3) of the Immigration Act 1971 on its coming into force on 1 January 1973.  
3.	Since 1963, Mr Vassallo has been convicted in the United Kingdom on 31 separate occasions, in respect of 68 offences.  They have consisted mainly of dishonesty offences, including numerous offences of burglary, and have resulted in custodial sentences ranging in length from 14 days to 54 months.  He has also been the subject of convictions in Switzerland (in 1985, for burglary, criminal damage and a public order offence) and in Sweden (in 1994, for burglary).  In May 2012 he was sentenced in the United Kingdom to 29 months’ imprisonment for a burglary committed at the home of an elderly couple.  This led to a decision by the Secretary of State, on 19 August 2013, to make a deportation order against him under regulation 19(3)(b) of the Immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”) on grounds of public policy or public security.
4.	Mr Vassallo’s appeal against that decision was allowed by the First-tier Tribunal, which held that he had resided in the United Kingdom for a continuous period of ten years prior to the deportation decision and that he could not therefore be deported except on “imperative” grounds of public security, pursuant to regulation 21(4) of the EEA Regulations; alternatively, that he had resided in the United Kingdom for a continuous period of five years and had thereby acquired a right of permanent residence pursuant to regulation 15, so that he could not be deported except on “serious” grounds of public policy or public security, pursuant to regulation 21(3).  The tribunal went on to hold that his deportation would not be in accordance with the principles in regulation 21(5) and would be disproportionate.  
5.	The Secretary of State appealed to the Upper Tribunal against that determination.  The Upper Tribunal found that the First-tier Tribunal had erred in relation to the issue of ten years’ continuous residence, in that the ten year period had to be counted back from the date of the relevant decision and was interrupted in this case by periods of imprisonment that broke the continuity of residence.  But the Upper Tribunal upheld the finding of the First-tier Tribunal as to the acquisition of a right of permanent residence, albeit it did so by different reasoning.  It concluded that, although the First-tier Tribunal had erred in law, the error was not material and the determination of that tribunal should therefore stand.
6.	The central question on the Secretary of State’s further appeal to this court is whether the tribunals were correct in law to find that Mr Vassallo had acquired a right of permanent residence.  To answer that question, it is convenient to start with the EU directive which the EEA Regulations implement, namely Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member State (“the Directive”), before setting out the relevant provisions of the EEA Regulations themselves and examining the way in which the tribunals applied them.  
7.	The right of permanent residence under the Directive and the EEA Regulations has been considered recently by this court in AA (Nigeria) v Secretary of State for the Home Department [2015] EWCA Civ 1249.  That case was concerned with whether an admitted right of permanent residence had subsequently been lost, whereas the present case is concerned with whether a right of permanent residence was acquired in the first place.  There is, however, an inevitable degree of overlap between the judgment in that case and the present judgment in the description of the legislative framework and the relevant case-law.
The Directive
8.	The Directive sets out the rights of EU citizens to free movement and residence within the Union, replacing the former piecemeal legislative approach by a single measure.  Recitals (17) and (18) state that a right of permanent residence should be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in the Directive during a continuous period of five years without becoming subject to an expulsion measure; and that the right of permanent residence, once obtained, should not be subject to any conditions.  Recitals (23) and (24) relate to expulsion measures, stating inter alia that the greater the degree of integration of Union citizens and their family members in the host Member State, the greater the degree of protection against expulsion should be.
9.	Chapter III of the Directive concerns the right of residence generally and includes, in Article 7(1), the conditions on which Union citizens have a right of residence on the territory of another Member State for a period longer than three months:  for example, if they are workers or self-employed persons in the host Member State or if they are family members accompanying a Union citizen who is a worker or self-employed person in the host Member State.
10.	Chapter IV concerns the right of permanent residence.  The key provision is Article 16 which provides in material part:
“Article 16.  General rule for Union citizens and their family members
1. Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there.  This right shall not be subject to the conditions provided for in Chapter III.
…
4.  Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.”
11.	Chapter VI concerns restrictions on the right of entry and the right of residence on grounds of public policy, public security and public health.  Article 27 lays down general principles, whilst Article 28 deals specifically with protection against expulsion, as follows:
“Article 27.  General principles
1.	 Subject to the provisions of this Chapter, Member States may restrict the freedom of movement and residence of Union citizens and their family members, irrespective of nationality, on grounds of public policy, public security and public health ….
2.	 Measures taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned.  Previous criminal convictions shall not in themselves constitute grounds for taking such measures.
The personal conduct of the individual concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.  Justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted.
…
Article 28.  Protection against expulsion
1.	 Before taking an expulsion decision on grounds of public policy or public security, the host Member State shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host Member State and the extent of his/her links with the country of origin.
2.	The host Member State may not take an expulsion decision against Union citizens or their family members, irrespective of nationality, who have the right of permanent residence on its territory, except on serious grounds of public policy or public security.
3.	An expulsion decision may not be taken against Union citizens, except if the decision is based on imperative grounds of public security, as defined by Member States, if they:
(a) have resided in the host Member State for the previous 10 years ….”
12.	Member States were required to transpose the Directive into national law by 30 April 2006.  It was only from that date that the right of permanent residence under the Directive could be acquired.  One of the issues considered in the case-law of the Court of Justice of the European Union (“the CJEU”), however, is the effect of residence before 30 April 2006 on the acquisition of the right after that date.  
13.	In Case C-162/09, Secretary of State for Work and Pensions v Lassal [2010] ECR I-9217, [2011] All ER (EC) 1169, the CJEU held that Article 16(1) and (4) of the Directive are to be interpreted as meaning that (a) continuous periods of five years’ residence completed before 30 April 2006 in accordance with earlier EU instruments must be taken into account for the purposes of the acquisition of the right of permanent residence pursuant to Article 16(1), and (b) absences from the host Member State of less than two consecutive years, which occurred before 30 April 2006 but following a continuous period of five years’ legal residence completed before that date, do not affect the acquisition of the right of permanent residence pursuant to Article 16(1).  The references to residence in accordance with earlier EU instruments, and to legal residence, are references to residence meeting the conditions of the various EU regulations and directives that governed the right of nationals of a Member State to reside in another Member State:  for example, Council Directive 68/360/EEC on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families.  Those instruments were repealed and replaced by the Directive.
14.	Case C-325/09, Secretary of State for Work and Pensions v Dias [2011] ECR I-6387, [2012] All ER (EC) 199 involved a similar question to that in Lassal but on a more complex set of facts.  Mrs Dias was a Portuguese national who had entered the United Kingdom in January 1998.  Her periods of residence in the United Kingdom were divided into five.  In the first two, amounting in total to more than five years between January 1998 and April 2003, she was either in work or on maternity leave and was legally resident in accordance with the relevant EU instruments.  In the third period, of about a year between April 2003 and April 2004, she was not working and did not meet the conditions of the relevant EU instruments, though she had previously been granted a residence permit pursuant to Directive 68/360/EEC which extended to the third period.  In the fourth period, of almost three years between April 2004 and March 2007, she was in work once more.  In the fifth period, from March 2007, she was not working.  But it was on the first three periods that the decision in the case turned.
15.	In the light of its decision in Lassal, the CJEU reformulated the questions referred as asking, in essence, “whether the 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 pursuant to Directive 68/360, without the conditions governing entitlement to any right of residence having been met, and which occurred before 30 April 2006 but after a period of legal residence of five years which ended prior to that date, are such as to affect the acquisition of the right of permanent residence under art 16(1) of Directive 2004/38” (paragraph 41).  It held first that the existence of a residence permit, in circumstances where the conditions governing entitlement to a right of residence were not met, was not sufficient for the residence to qualify towards the acquisition of a right of permanent residence:
“55. Consequently, it must be held that periods of residence completed on the basis solely of a residence permit validly issued under Directive 68/360, without the conditions governing entitlement to any right of residence being met, cannot be regarded as having been completed legally for the purposes of the acquisition of a right of permanent residence under art 16(1) of Directive 2004/38.” 
It followed that Mrs Dias’s third period of residence was not itself a qualifying period of residence.  
16.	The court then turned to consider whether that third period of residence affected the acquisition of a right of permanent residence by reason of the five years’ continuous legal residence in the first and second periods, in circumstances where all three periods of residence occurred before 30 April 2006 and a right of permanent residence could only be acquired with effect from that date.  It stated:
“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’s case (para 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 30 April 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 (see Lassal’s case (para 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 30 April 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 (see Lassal’s case (paras 57, 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 30 April 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 Advocate General Trstenjak has stated in paras 106 and 107 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 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date.
66.  It follows that periods of less than two consecutive years, 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 30 April 2006 and after a continuous period of five years’ legal residence completed prior to that date, are not such as to affect the acquisition of the right of permanent residence under art 16(1) of Directive 2004/38.”
17.	Thus, in the application of Article 16(4) by analogy, the court equated (a) a period of residence in the host Member State without satisfying the conditions governing entitlement, as a matter of EU law, to a right of residence in that Member State, with (b) a period of absence from the host Member State.  The court spelled out the consequence that a period of less than two consecutive years of such residence would not affect the acquisition of a right of permanent residence by reason of a prior period of five years’ continuous legal residence in the host Member State.  A further consequence, which the court did not need to spell out for the purposes of the decision in Dias, must be that a period of more than two consecutive years of residence without meeting the relevant conditions would affect the acquisition of a right of permanent residence.  As explained later in this judgment, that is a key point for the purposes of the present appeal.  
18.	In Joined Cases C-424/10 and C-425/10, Ziolkowski and Szeja v Land Berlin [2011] ECR I-14051, the CJEU had to consider whether residence by Polish nationals in a host Member State before the accession of Poland to the Union could count towards the period of lawful residence under Article 16(1) of the Directive.  The court answered that question in the affirmative, reasoning as follows:
“56.  It must be observed at the outset that the Act of Accession of a new Member State is based essentially on the general principle that the provisions of European Union law apply ab initio and in toto to that State, derogations being allowed only in so far as they are expressly laid down by transitional provisions ….
57.  Thus, with regard to Article 6 of the EEC Treaty … and Articles 48 and 51 of the EC Treaty … the Court has had occasion to hold that where the Act concerning the conditions of accession of a Member State contains no transitional provisions concerning the application of those articles, they must be considered to be immediately applicable and binding as regards that Member State as from the date of its accession to the European Union, and, since that date, they may therefore be relied on by nationals from any Member State and be applied to the present and future effects of situations arising before the accession of that State to the European Union ….
58.  Furthermore, the Court has also held that the provisions on citizenship of the European Union are applicable as soon as they enter into force and must therefore be applied to the present effects of situations arising previously ….
59.  In the present case, there is no transitional provision concerning the application to the Republic of Poland of the European Union provisions on freedom of movement of persons ….
60.  Consequently, the provisions of Article 16(1) of Directive 2004/38 can be relied [on] by Union citizens and be applied to the present and future effects of situations arising before the accession of the Republic of Poland to the European Union.
61.  It is, admittedly, true that the periods of residence completed in the territory of the host Member State by a national of another State before the accession of the latter State to the European Union fell not within the scope of European Union law but solely within the law of the host Member State.
62.  However, provided the person concerned can demonstrate that such periods were completed in compliance with the conditions laid down in Article 7(1) of Directive 2004/38, taking into account of such periods from the date of accession of the Member State concerned to the European Union does not give retroactive effect to Article 16 of Directive 2004/38, but simply gives present effect to situations which arose before the date of transposition of that directive (see Lassal, paragraph 38).”
19.	In Joined Cases C-147/11 and C-148/11, Secretary of State for Work and Pensions v Czop and Punakova (judgment of 6 September 2012), at paragraph 35, the CJEU referred to the ruling in Ziolkowski and Szeja as “settled case-law”.   
The EEA Regulations
20.	The EEA Regulations implement the Directive but it is necessary to set out the relevant provisions separately, since they are referred to in the reasoning of the tribunals and there is also an issue as to whether they transpose the Directive correctly.
21.	Regulation 14(1) provides that a “qualified person” (defined by regulation 6 as meaning an EEA national who is in the United Kingdom as a worker, etc.) is entitled to reside in the United Kingdom so long as he remains a qualified person.  Regulation 14(2) confers a corresponding right on a family member of a qualified person.
22.	Regulation 15 concerns the right of permanent residence pursuant to Article 16 of the Directive.  It provides:
“15(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 ….”
23.	Regulation 19 concerns exclusion and removal from the United Kingdom.  It includes the following:
“19. … (3) Subject to paragraphs (4) and (5), an EEA national who has entered the United Kingdom or the family member of such a national who has entered the United Kingdom may be removed if -
(a) that person does not have or ceases to have a right to reside under these Regulations; or
(b) the Secretary of State has decided that the person’s removal is justified on grounds of public policy, public security or public health in accordance with regulation 21 ….
(5) A person must not be removed under paragraph (3) if he has a right to remain in the United Kingdom by virtue of leave granted under the [Immigration Act 1971] unless his removal is justified on the grounds of public policy, public security or public health in accordance with regulation 21.”
24.	Regulation 21 governs decisions taken on grounds of public policy, public security or public health.  It provides in material part:
“21(1) In this regulation a ‘relevant decision’ means an EEA decision taken on the grounds of public policy, public security or public health.
…
(3) A relevant decision may not be taken in respect of a person with a permanent right of residence under regulation 15 except on serious grounds of public policy or public security.
(4) A relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who –
(a) has resided in the United Kingdom for a continuous period of at least ten years prior to the relevant decision ….
(5) Where a relevant decision is taken on grounds of public policy or public security it shall, in addition to complying with the preceding paragraphs of this regulation, be taken in accordance with the following principles –
(a) the decision must comply with the principle of proportionality;
(b) the decision must be based exclusively on the personal conduct of the person concerned;
(c) the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society;
(d) matters isolated from the particulars of the case or which relate to considerations of general prevention do not justify the decision;
(e) a person’s previous criminal convictions do not in themselves justify the decision.
(6) Before taking a relevant decision on grounds of public policy or public security in relation to a person who is resident in the United Kingdom the decision maker must take account of considerations such as the age, state of health, family and economic situation of the person, the person’s length of residence in the United Kingdom, the person’s social and cultural integration into the United Kingdom and the extent of the person’s links with his country of origin.”
25.	Schedule 4, headed “Transitional provisions”, contains detailed provisions in paragraph 6 with regard to residence prior to the entry into force of the regulations.  It is necessary to set the paragraph out in full:
“6.(1) Any period during which a person (‘P’) who is an EEA national, carried out an activity or was resident in the United Kingdom in accordance with the condition in subparagraph (2) or (3) is to be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these Regulations for the purpose of calculating periods of activity and residence thereunder.
(2)  P carried out an activity, or was resident, in the United Kingdom in accordance with this sub-paragraph where such activity or residence was at that time in accordance with –
(a) the 2000 Regulations;
(b) the Immigration (European Economic Area) Order 1994 (‘the 1994 Order’);
(c) where such activity or residence preceded the entry into force of the 1994 Order, any of the following Directives which was at the relevant time in force in respect of the United Kingdom – (i) Council Directive 64/221/EEC; (ii) Council Directive 68/360/EEC; (iii) Council Directive 72/194/EEC; (iv) Council Directive 73/148/EEC; (v) Council Directive 75/34/EEC; (vi) Council Directive 75/35/EEC; (vii) Council Directive 90/364/EEC; (viii) Council Directive 90/365/EEC; and (ix) Council Directive 93/96/EEC.
(3) P carried out an activity or was resident in the United Kingdom in accordance with this sub-paragraph where P –
(a) had leave to enter or remain in the United Kingdom; and
(b) would have been carrying out that activity or residing in the United Kingdom in accordance with these Regulations had the relevant state been an EEA State at that time and had these Regulations at that time been in force.
(4)  Any period during which P carried out an activity or was resident in the United Kingdom in accordance with sub-paragraph (2) or (3) will not be regarded as a period during which P carried out that activity or was resident in the United Kingdom in accordance with these Regulations where it was followed by a period –
(a) which exceeded two consecutive years and for the duration of which P was absent from the United Kingdom; or
(b) which exceeded two consecutive years and for the duration of which P’s residence in the United Kingdom –
(i) was not in accordance with sub-paragraph (2) or (3); or
(ii) was not otherwise in accordance with these Regulations.
(5) The relevant state for the purpose of sub-paragraph (3) is the state of which P is, and was at the relevant time, a national.”
26.	That wording of paragraph 6 of schedule 4 is the result of amendments made by the Immigration (European Economic Area) (Amendment) Regulations 2012.  The explanatory note to the amending regulations states that the amendments were made in order to reflect the principles identified by the CJEU in the cases of Lassal, Dias and Ziolkowski.
The determination of the First-tier Tribunal
27.	At paragraphs 62-64 of its determination, the First-tier Tribunal found that by 1963, when Mr Vassallo received his first custodial sentence, he had been in the United Kingdom for five continuous years as the dependent child of EEA nationals in employment here and that he had thereby qualified for a right of permanent residence; alternatively, he had qualified for that right by virtue of five continuous years of residence here as a student during the same period.  A further finding was that he had been here for ten continuous years by 1963 and that the highest level of protection against removal applied to him, that is to say that he could be removed only on imperative grounds of public security under regulation 21(4).  The tribunal also accepted that he had been resident in the United Kingdom almost continuously for nearly 60 years and that the periods he had spent in Sweden and Switzerland did not break his continuity of residence in accordance with the EEA Regulations.
28.	The tribunal examined his offending history and personal circumstances, including the nature and implications of the offence which triggered the decision to deport him.  At paragraph 68 it referred to the requirement in regulation 21(5)(c) of the EEA Regulations that the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society.  Having noted that he had been assessed by the offender management professionals as presenting a low risk of reoffending, it stated that “we cannot find that this appellant would meet this particular of the criteria set out in Regulation 21”.  In the following paragraph it said this:
“69. We accept that the appellant has been in the United Kingdom for nearly 60 years and is, to all intents and purposes, fully integrated into the United Kingdom.  We accept that the appellant has no links, familial, cultural or of any other nature, to Italy.  We find nothing about the lengthy periods that this appellant has spent in prison that has severed his integrating links with the United Kingdom.  In very many ways, the appellant presented as a British person whose behaviour, which we find has been reprehensible, has arisen in, and been a product of, his childhood and upbringing in the United Kingdom and the choices he has made.  On an application of Maslov criteria [Maslov v Austria [2008] ECHR 546], we would be bound to find this appellant to be a ‘home-grown’ criminal.”
29.	After consideration of further issues, in particular that of rehabilitation, the tribunal concluded as follows:
“72.  This appellant’s criminal offending has been reprehensible.  We find his most recent offending has been particularly so.  However, bearing in mind that we find that the test of the imperative grounds of public security apply to his removal, we are not persuaded that his deportation is justified under the EEA Regulations 2006.  Even if we were wrong in this regard, taking into account the length of residence, which we accept to be nearly 60 years, we would not find that the criteria set out in Regulation 21(5) are such that deportation was justified.  The appellant is 65 years old and has been in the United Kingdom for nearly 60 of those years.  He has integrated into the United Kingdom, and we bear in mind that his previous criminal convictions do not in of themselves justify the decision.  We find that there is some opportunity for this appellant to rehabilitate here and, also, note that he is regarded by those professionals involved in offender management to represent a low risk of reoffending.  Following the Maslov criteria, we find this appellant to be a ‘homegrown’ criminal.  Taking into account all that we are permitted to consider within the EEA Regulations 2006, we find on balance that deportation of the appellant would be disproportionate and not in accordance with the principles and criteria set out in Regulation 21(5). We are therefore bound to find that the appeal must succeed.”
The determination of the Upper Tribunal
30.	The Upper Tribunal identified a number of legal errors in the determination of the First-tier Tribunal.  It held that the tribunal had been wrong to find that Mr Vassallo acquired rights of residence while he was a student.  It also held, by reference to the decision of the CJEU in Case C-400/12, Secretary of State for the Home Department v MG (judgment of 16 January 2014), that the tribunal erred in law in finding that he had acquired enhanced protection against removal on the basis of ten years’ continuous residence here.  In MG (and in a judgment given on the same day in Case C-378/12, Onuekwere v Secretary of State for the Home Department) the court held that the ten year period has to be calculated by counting backwards from the date of the expulsion decision and that periods of imprisonment interrupt the continuity of residence.  On that basis Mr Vassallo could not be said to have acquired the ten years’ continuous residence.
31.	Those aspects of the Upper Tribunal’s determination are not the subject of any dispute before us.  The issues on the appeal relate to the analysis in the remainder of the determination.  
32.	The Upper Tribunal returned to the question whether Mr Vassallo had acquired a right of permanent residence by virtue of five years’ continuous residence.  It set out paragraph 6 of schedule 4 to the EEA Regulations.  It did not consider that Mr Vassallo could bring himself within paragraph 6(2).  It continued:
“46.  It is subparagraphs (3) and (4) that are most relevant to the appellant’s case.  We are satisfied that on the basis of the First-tier Tribunal’s finding, the appellant was resident in the United Kingdom in accordance with sub-para 3.  His residence was as a family member of his parents.  It is at least implicit in the findings of the First-tier Tribunal that, in relation to sub-para 3(a) he had leave to enter the UK when he arrived, to join his parents who were working, that being a relevant activity for the purposes of ‘these’ EEA Regulations (had they been in force at the time, which this sub-para expressly provides for).
47. … We need to look again at sub-para 4.  To summarise, the appellant’s residence that would otherwise be counted under paragraph 6 of schedule 4 is not to be counted where it was followed by a period which exceeded two consecutive years and for the duration of which the appellant’s residence was not in accordance with sub-paras 2 or 3.
48.  However long his status as a dependent family member existed, it is clearly the case that thereafter he did not undertake any activity of his own or have any period of residence that qualified.  He was not working or self-employed or otherwise undertaking a qualifying activity; for much of the time he was in prison, or at least committing criminal offences, which was evidently his way of life.
49.  If sub-para 4 is to be followed, the appellant is not able to succeed in establishing that he acquired qualifying EU rights as a result of the period between 1952 and 1963.
50.  However, we mentioned at [44] above that we would consider the extent to which the EEA Regulations reflect the principles in the cases to which we have referred.  We must also consider the extent to which the EEA Regulations in this context are in conformity with the Citizens’ Directive.
51.  … There is no provision in the Citizens’ Directive equivalent to that in paragraph 6(4)(b) of Schedule 4 of the EEA Regulations.
52.  We have considered whether this provision of the EEA Regulations is in conformity with the Citizens’ Directive, in that it could be said, for example, to further the principle of integration.  However, we have come to the view that it is inconsistent with the Citizens’ Directive which states expressly in Article 16(4) that permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.  That, it seems to us, is an unambiguous statement of intent in expressing exhaustively the circumstances in which permanent residence will be lost.
53.  Having come to the view therefore, that the EEA Regulations in this respect do not accurately transpose the Directive, we look to the Directive for the answer to the question of whether the appellant acquired permanent residence which he has not lost.  The answer to that question, having regard to the authorities to which we have referred, in particular Ziolkowski, is that he has acquired that residence which he has not lost.”
33.	This reasoning led to the finding, at paragraph 55 of the Upper Tribunal’s determination, that “the First-tier Tribunal did not err in law in terms of its conclusion that the appellant has acquired a permanent right of residence on the basis of five years’ qualifying residence”.
34.	The Upper Tribunal went on to consider a challenge to the First-tier Tribunal’s proportionality assessment.  It rejected the challenge, stating (at paragraph 60) that in the light of the tribunal’s conclusion that Mr Vassallo represented a low risk of reoffending, it was “all but inevitable” that the tribunal would have been bound to conclude that his personal conduct did not represent the necessary level of threat to meet the criterion in regulation 21(5)(c). It also observed (at paragraph 62) that the tribunal had considered the question of  Mr Vassallo’s integration in the United Kingdom in the light of his offending and imprisonment.  
35.	The Upper Tribunal concluded:
“63.  Evidently without any enthusiasm, the First-tier Tribunal allowed the appeal under the EEA Regulations.  Although the First-tier Tribunal erred in law in the respects to which we have referred, those errors of law are not such as to require the decision to be set aside, given the alternative basis for its conclusions, namely that the appellant had acquired permanent residence on the basis of five years qualifying residence.”
The issues in the appeal
36.	There are three grounds of appeal:  (1) that the Upper Tribunal erred in law in refusing to apply paragraph 6(4)(b) of schedule 4 to the EEA Regulations, (2) that it erred in law in failing to apply paragraph 6(4)(a) of schedule 4 (that is, in failing to ask whether Mr Vassallo was absent from the United Kingdom for a period of more than two consecutive years); and (3) that it erred in law in concluding that he satisfied the conditions of paragraph 6(3) of schedule 4.
37.	Those grounds are all directed to the question whether Mr Vassallo could properly be found to have acquired a right of permanent residence in the United Kingdom with effect from 30 April 2006 (see paragraph 12 above for the relevance of that date) by virtue of his residence here since 1952.  With that in mind, the issues raised can be restated as follows:  
i)	whether the period of more than five years’ continuous residence in the United Kingdom between 1952 and 1963 as a family member of EEA nationals in employment here can be taken into account in determining whether Mr Vassallo acquired a right of permanent residence (the issue to which ground 3 is in substance directed); 
ii)	if so, whether the character of his residence here thereafter, in the period from 1963 onwards, was such as to prevent the acquisition of a right of permanent residence (the issue to which ground 1 is in substance directed); and 
iii)	whether the acquisition of a right of permanent residence was prevented by a period of more than two consecutive years’ absence from the United Kingdom (the issue to which ground 2 is directed). 
The first issue:  the effect of residence between 1952 and 1963
38.	The case advanced by Mr Kennelly in relation to the first of those issues is that residence between 1952 and 1963 is not to be taken into account.  It was held by the CJEU in Lassal and Dias that periods of residence before 30 April 2006 are to be taken into account only where they were in accordance with earlier EU instruments governing the right of nationals of a Member State to reside in another Member State (see paragraphs 13-17 above).  Those earlier instruments were the ones repealed and replaced by the Directive itself.  They are listed in paragraph 6(2)(c) of schedule 4 to the EEA Regulations.  The first of them in time was Council Directive 64/221/EEC, adopted in 1964.  Residence prior to 1964 cannot have been in accordance with any relevant EU instrument.  
39.	Mr Kennelly submits that the decision in Ziolkowski did not alter the position.  It was held in that case that periods of residence in the host Member State by a national of another state before the accession of the latter state to the Union could be taken into account provided that such periods were completed in compliance with Article 7(1) of the Directive (see paragraph 18 above).  That was based on reasoning to the effect that the provisions of EU law apply “ab initio and in toto” to a new Member State from the date of accession, subject to any transitional provisions, and that the provisions of EU law on citizenship are applicable as soon as they enter into force and must therefore be applied to the present effects of situations arising previously.  None of that was intended to affect the approach laid down in Lassal and Dias.  The court’s reference to periods of residence completed in compliance with Article 7(1) of the Directive was a way of covering, in relation to a state that was not a Member State at the time of the residence in question, the same point as was covered in Lassal and Dias by reference to periods of residence completed in accordance with earlier EU instruments.  It cannot have been the court’s intention that nationals of a state that was not a Member State at the relevant time should be placed in a more favourable position than nationals of a state that was a Member State at the relevant time, by allowing residence to be taken into account in the former case even if it predated the first of the EU instruments governing the right of residence within the Union. 
40.	It follows, in Mr Kennelly’s submission, that the Upper Tribunal erred in finding that Mr Vassallo’s residence in the United Kingdom between 1952 and 1963 could fall within paragraph 6(3) of schedule 4 to the EEA Regulations.  Paragraph 6(3) is targeted at the situation that arose in Ziolkowski.  It applies where the relevant person would have been residing in the United Kingdom in accordance with the EEA Regulations “had the relevant state been an EEA State at that time”; and “relevant state” is defined by paragraph 6(5) as the state of which the person is, and was at the relevant time, a national.  It therefore deals with a situation that does not arise on the facts of this case.  Nor is there any basis in the case-law on the Directive for giving paragraph 6(3) an extended interpretation so as to render it applicable to the present facts.
41.	Mr Knafler QC, on behalf of Mr Vassallo, takes issue with the case so advanced by Mr Kennelly.  He submits that residence in the United Kingdom by an EU citizen is to be taken into account for the purposes of Article 16(1) of the Directive even where such residence took place prior to the United Kingdom’s accession to the Union (1 January 1973) and at a time when there were no EU instruments governing the right of residence.  An EU citizen acquires a right of permanent residence by reason of a continuous period of five years’ lawful residence in the host Member State irrespective of whether it was a Member State at the time of such residence, unless subsequently on the facts his centre of interest fastens on another Member State or he otherwise ceases to be integrated in the host Member State.  
42.	The proposition that residence prior to the host Member State’s accession to the Union is to be taken into account follows, in Mr Knafler’s submission, from the principle that the provisions on EU citizenship are applicable as soon as they enter into force and must be applied to the present effects of situations arising previously.  That principle was applied in Ziolkowski to residence in the host Member State prior to accession to the Union by the state of which the persons concerned were nationals, but it is equally applicable to residence by nationals of a Member State in the host state prior to the host state’s accession to the Union.  The principle as stated in Ziolkowski can be traced back through Lassal (see in particular paragraph 39 of that judgment) to Case C-224/98, D’Hoop [2002] ECR I-6191.
43.	In support of his contention that residence can be taken into account even if it predates any of the EU instruments governing the right of residence, Mr Knafler relies on the fact that in Ziolkowski the court moved away from the language to be found in Lassal and Dias, which referred to residence in accordance with earlier EU instruments governing entitlement to residence (language which, he suggested, was attributable to the wording of the questions asked by the national courts), and laid down the broader test that periods of residence can be taken into account “provided the person concerned can demonstrate that such periods were completed in compliance with the conditions laid down in Article 7(1) of Directive 2004/38” (paragraph 62 of the judgment).  All that is necessary for compliance with the test laid down in Article 7(1) is to show that the person concerned was resident in the host state at the relevant time in a relevant capacity, for example as a worker or a self-employed person or as a family member accompanying such a worker or self-employed person.  Ex hypothesi, Article 7(1) will not have been in force at the time of such residence; and there is no reason in principle for a requirement that some other EU instrument governing the right of residence was in force at the time.  Since Mr Vassallo’s residence in the United Kingdom between 1952 and 1963 was in compliance with the conditions laid down in Article 7(1), in that he was a family member accompanying Union citizens resident in the United Kingdom as workers, his residence during that period can be taken into account for the purposes of the acquisition of a right of permanent residence under Article 16(1).  
44.	On that basis Mr Knafler invites the court to find against the Secretary of State on this issue, alternatively to refer the matter to the CJEU for a preliminary ruling pursuant to Article 267 of the Treaty on the Functioning of the European Union if the court considers that the answer is not acte clair.  
45.	For my part, I find it very difficult to accept that residence prior to the coming into force of the Treaty of Rome on 1 January 1958 can be taken into account for the purposes of EU legislation on free movement and residence of Union citizens.  But even if I am right about that, it does not provide an answer to the first issue, since it is common ground that Mr Vassallo had five years’ continuous residence between 1958 and 1963, after the Treaty of Rome had come into force.  This was still, of course, prior to the accession of the United Kingdom to the Union but I am inclined to accept Mr Knafler’s submission that the reasoning in Ziolkowski applies as much to residence in a host state by a national of a Member State prior to the host state’s accession to the Union as it does to residence in a host Member State by a national of another state prior to that other state’s accession to the Union.  
46.	The remaining question is whether a period of residence can be taken into account if it was completed prior to the coming into force of any EU instrument governing the right of residence within the Union.  The language used in Lassal and Dias suggests that, for residence to be taken into account, it had to meet the conditions of EU instruments governing entitlement to residence at the time.  It needs to be borne in mind, however, that the factual situation with which the court was concerned in each of those cases was one in which (i) both states were Member States of the Union at all material times and (ii) entitlement to residence in the host Member State was governed at all material times by relevant EU instruments.  The way in which the court expressed itself might therefore be attributable to the actual situation with which it was dealing.  In Ziolkowski, by contrast, the court was concerned with a hypothetical situation, in which residence in the host state was not governed at the material time by EU law and it was necessary to determine whether the character of the residence was such that its effects should nevertheless be taken into account for the purposes of Article 16(1) of the Directive.  In that context the court referred simply to residence completed “in compliance with the conditions laid down in Article 7(1) of Directive 2004/38”, a formulation which, as Mr Knafler submits, does not depend on the face of it on whether any EU instruments governing the right of residence were in force at the time of the residence in question.
47.	Whilst my overall inclination on this issue is to favour the submissions advanced on behalf of the Secretary of State, I do not think that the answer can be said to be acte clair.  If, therefore, it were necessary to answer the issue for the proper determination of this appeal, serious consideration would have to be given to making a reference for a preliminary ruling.  But I do not think that the issue does have to be answered.  Even on the assumption that Mr Vassallo’s residence in the United Kingdom between 1952 and 1963 can be taken into account in determining whether he acquired a right of permanent residence under Article 16(1) of the Directive, I am satisfied, for reasons given below when considering the second issue, that the character of his residence in this country from 1963 onwards was such that, overall, he cannot be said to have acquired a right of permanent residence.  
48.	Leaving the first issue unanswered does not cause me any concern, because I do not think that it can have any wider practical importance. The issue arises in the present appeal because of the unusual factual circumstances of the case, which take one back to a period over fifty years ago.  The application of Article 16(1) of the Directive to residence prior to 1964, when the first of the relevant EU instruments came into force, is highly unlikely to be material in other cases.  
The second issue:  residence from 1963 onwards
49.	I therefore turn to the second issue on the assumption, but without deciding, that Mr Vassallo had five years’ continuous residence in the United Kingdom between 1952 and 1963 that was capable of counting towards the acquisition of a right of permanent residence.  The question then is whether the character of his residence in the United Kingdom thereafter, from 1963 onwards, was such as to prevent him from acquiring a right of permanent residence. 
50.	Mr Kennelly’s submissions on this issue are straightforward and compelling.  He submits that from 1963 onwards Mr Vassallo’s residence in the United Kingdom did not comply either with the conditions of the EU instruments governing the right of residence which were in force from time to time or with the conditions of Article 7(1) of the Directive.  It is clear from Dias that, by analogy with Article 16(4), a period of more than two consecutive years’ residence that does not meet the conditions governing entitlement to residence under EU law will negative the effects of an earlier continuous period of five years’ residence that did meet those conditions and will prevent a right of permanent residence from being acquired on the basis of the earlier five year period:  see paragraphs 14-17 above.  In this case the five year period was followed by a period of over forty years of residence that did not meet the relevant conditions.  The character of the residence in that later period was plainly such as to prevent the acquisition of a right of permanent residence on the basis of the earlier period.
51.	Mr Kennelly made clear in his oral submissions that he bases the Secretary of State’s case squarely on the analysis in Dias and the failure to meet the conditions for any right of residence under EU law, and that the case does not depend in any way on discounting periods of imprisonment as considered in Onuekwere and MG (see paragraph 30 above).
52.	He submits that the Upper Tribunal was plainly in error in holding that paragraph 6(4)(b) of schedule 4 to the EEA Regulations fails accurately to transpose the Directive in that, by Article 16(4) of the Directive, a right of permanent residence can be “lost” only through absence from the host Member States for a period exceeding two consecutive years.  Dias applies Article 16(4) by analogy to the situation covered by paragraph 6(4)(b) of schedule 4, and the very reason why paragraph 6(4)(b) was enacted was to give effect to the interpretation placed on the Directive in Dias.
53.	Accordingly, in Mr Kennelly’s submission, the Upper Tribunal erred in law in upholding the First-tier Tribunal’s conclusion that Mr Vassallo had acquired a right of permanent residence on the basis of five years’ qualifying residence.  Whether or not Mr Vassallo had five years’ qualifying residence between 1952 and 1963, the subsequent period of over 40 years of non-qualifying residence from 1963 meant that he did not acquire a right of permanent residence from the operative date of 30 April 2006.
54.	Mr Knafler conceded that the Upper Tribunal was wrong to say that two years’ absence from the host Member State is the sole basis on which permanent residence can be lost, but he argued that this did not affect the tribunal’s conclusion and was therefore not a material error of law.  
55.	He referred to passages in the opinion of the Advocate General in Ziolkowski where it was stated that periods of residence in the host Member State that are lawful only on the basis of national law are to be taken into account in determining whether a right of permanent residence has been acquired:  see in particular paragraphs 54-59 of his opinion.  A reference to national law was also made by the Advocate General in Dias, at paragraph 106 of her opinion, where she said that “[in] so far as a Union citizen, following a period of legal residence in the host member state, remains without a right of residence based on European Union law or national law in the host member state, and the national authorities do not grant leave to remain, that can clearly in my view be taken into account from the perspective of integration”.  If I understood his submissions correctly, Mr Knafler suggested by reference to such material that a period of residence that was lawful as a matter of national law would not operate to prevent a right of permanent residence being acquired on the basis of an earlier period of five years’ qualifying residence.
56.	Mr Knafler submitted in any event that facts as extreme as the present cannot have been in the contemplation of the court in Dias.  It cannot have been contemplated that a period of over forty years’ residence in the host Member State, in circumstances where such residence was lawful as a matter of national law and had resulted in full integration in the host Member State, could nevertheless break the link with that state in the same way as a period of two consecutive years’ absence.  There is a good reason for having a brightline rule in respect of two consecutive years’ absence from the host state, but there is no good reason for a corresponding brightline rule in respect of residence in the host state that is lawful under national law and that does not prevent full integration.  The case-law should not be read as laying down such a rule.  
57.	Mr Knafler also referred to cases concerning the effect of imprisonment on integration, but they did not appear to take matters any further and I think it unnecessary to deal with them, especially as Mr Kennelly did not put the case for the Secretary of State by reference to Mr Vassallo’s periods of imprisonment.
58.	In summary, Mr Knafler submits that the character of Mr Vassallo’s residence in the United Kingdom from 1963 onwards was not such as to break the link with this country and to prevent him acquiring a right of permanent residence here by virtue of five years’ qualifying residence prior to 1963.
59.	Mr Knafler faced an uphill struggle on this issue, and it seemed to me that he was forced into advancing points that were directly contradicted by the CJEU case-law.  As to the suggestion that residence on the basis of national law alone would suffice, the court in Ziolkowski plainly did not accept the opinion of the Advocate General on that issue.  The court’s reasoning, the relevant part of which has been set out at paragraph 18 above, was that residence must have been in compliance with the conditions in Article 7(1) of the Directive in order to be taken into account; and that fits with the approach in Lassal and Dias, where the relevant part of the court’s reasoning was based on whether residence was in accordance with the conditions of the earlier EU instruments.  Had the court in Ziolkowski accepted that residence on the basis of national law alone would suffice, it would have expressed itself very differently.
60.	Similarly, when the court in Dias applied Article 16(4) by analogy to a period or residence that did not meet the conditions of the earlier EU instruments, it was in my view laying down a clear brightline rule:  a period of less than two years’ residence of that character would not affect the acquisition of a right of permanent residence, but a period exceeding two years would do so.  All brightline rules are capable of producing harsh results in individual cases, and the result in the present case may seem particularly harsh, but that is not a reason for rejecting the court’s approach or straining to find a way round it.   I agree with Mr Kennelly’s submission that, applying Dias, the character of Mr Vassallo’s residence in the period from 1963 onwards was plainly such as to prevent the acquisition of a right of permanent residence on the basis of the period between 1952 and 1963.
61.	Accordingly, the Upper Tribunal was not only in error in holding that paragraph 6(4)(b) of schedule 4 to the EEA Regulations fails accurately to transpose the Directive, but also erred in upholding the First-tier Tribunal’s conclusion that Mr Vassallo had acquired a right of permanent residence.  Even on the assumption that he had five years’ qualifying residence in the period from 1952 to 1963, the character of his residence thereafter was such as to prevent him acquiring a right of permanent residence.  It was not open to the First-tier Tribunal, on the evidence before it, to find that a right of permanent residence had been acquired.
The third issue:  absence from the United Kingdom
62.	In the light of my conclusion on the second issue, nothing turns on the third issue, but it may be helpful for me briefly to indicate my views on it.  Mr Kennelly criticises the Upper Tribunal for failing to ask whether Mr Vassallo was absent from the United Kingdom for a period in excess of two consecutive years after 1963.  In my judgment, however, the failure was immaterial.  The First-tier Tribunal found that Mr Vassallo had been resident in the United Kingdom almost continuously for nearly 60 years and that the continuity of his residence had not been broken by the periods he spent in Sweden and Switzerland.  It also accepted that he had been back to Italy on only one occasion since the age of 5, for a family holiday of some three weeks.  It is clear that the tribunal rejected any suggestion that he might have had more than two consecutive years’ absence from the United Kingdom since 1963.  There was and is no basis for going behind its conclusion on that issue.
Whether any error of law was material
63.	I have concluded that the First-tier Tribunal was wrong to find that Mr Vassallo had acquired a right of permanent residence.  It follows that it was wrong to proceed on the basis that deportation had to be justified by serious grounds of public policy or public security.  For the reasons given below, however, I am satisfied that the tribunal would have reached the same ultimate conclusion in any event and that its errors were therefore not material.
64.	The decision to deport Mr Vassallo was taken under regulation 19(3)(b) of the EEA Regulations.  I think it arguable that he was removable under regulation 19(3)(a) as a person who did not have a right to reside under the EEA Regulations; but regulation 19(5) provides in any event that a person must not be removed under regulation 19(3) if he has a right to remain in the United Kingdom by virtue of leave granted under the Immigration Act 1971 (as Mr Vassallo does: see paragraph 2 above) unless his removal is justified on grounds of public policy, public security or public health in accordance with regulation 21.  Accordingly, the principles and considerations set out in regulation 21(5) and (6) remain applicable.  The requisite exercise remains the same as that carried out by the First-tier Tribunal, subject to the qualification that the grounds of public policy or public security relied on to justify removal do not have to be serious grounds. 
65.	The First-tier Tribunal made a clear-cut finding that the requirement in regulation 21(5)(c), that “the personal conduct of the person concerned must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society”, was not met and that, having regard to all the circumstances (including Mr Vassallo’s age, length of residence in the United Kingdom and extent of integration in the United Kingdom) his deportation would be disproportionate.  The Upper Tribunal dismissed a challenge to the proportionality assessment, and the grounds of appeal to this court do not take issue with that aspect of the Upper Tribunal’s determination.  
66.	I see no sensible room for argument that the First-tier Tribunal’s specific finding in respect of regulation 21(5)(c) or its general conclusion on proportionality might have been different if the tribunal had approached the issues on the basis that deportation had to be justified on “grounds” of public policy or public security rather than on “serious grounds”.  
67.	It follows that, although the Upper Tribunal was wrong to uphold the First-tier Tribunal’s finding that Mr Vassallo had acquired a right of permanent residence in the United Kingdom, that error was likewise not material.  The Upper Tribunal was right to dismiss the appeal against the determination of the First-tier Tribunal, albeit it did so for the wrong reason.  
Conclusion 
68.	Whilst I would find in the Secretary of State’s favour on the central issue in the appeal, holding that the tribunals were wrong to conclude that Mr Vassallo acquired a right of permanent residence in the United Kingdom under regulation 15 of the EEA Regulations, I am satisfied that the error was not material to the outcome and that there is therefore no basis for this court to set aside the determination of the Upper Tribunal.  I would dismiss the appeal.

Lady Justice Macur : 
69.	I agree.
Mr Justice Cranston :
70.	I also agree.