Supreme Court refers questions on free movement to the EU Court of Justice

27 Jul 2016

The Supreme Court today made its first reference to the Court of Justice since the EU referendum on one of the central issues in the referendum debate: the free movement of EU citizens who have committed crimes in the UK.

The case concerned a deportation order made by the Home Secretary against an Italian national living in the UK, following his conviction for manslaughter in 2002. Mr Vomero (FV) had challenged the deportation order and had succeeded before both the Upper Tribunal and the Court of Appeal. On the Home Secretary’s appeal to the Supreme Court, the central issue was whether FV was, as he argued, entitled to the highest level of protection against deportation provided to EU citizens under the Citizens’ Free Movement Directive (Directive 2004/38/EC). Such protection, which is provided to EU citizens who have resided in the UK for the previous ten years, precludes deportation unless it is justified by “imperative grounds of public security”.

The Supreme Court was split on whether this highest level of protection was available to persons who did not have a right of permanent residence in the UK under the Directive. The Court had accepted the Home Secretary’s submission that, because of his lengthy imprisonment for manslaughter, FV did not enjoy such a right, even though he had lived in the UK for over 20 years. Whilst the majority of the Court favoured the view that a right of permanent residence was not needed in order to enjoy the highest level of protection, a minority regarded the position as at least unclear. Accordingly, the Court referred several questions to the EU Court of Justice on the correct interpretation of the Citizens’ Free Movement Directive. The implications of the EU Court’s ruling on these questions for the UK’s ability to restrict the free movement of EU citizens is just one of the many issues that will need to be worked out as part of the Brexit negotiations.

Robert Palmer and Ben Lask acted for the Home Secretary.

To read the judgment, please click here here.