The Court of Appeal has in the case of Secretary of State for the Home Department v Vassallo [2016] EWCA Civ 13 rejected the Home Secretary’s efforts to deport an Italian man who has been resident in the UK for more than 60 years. Benedetto Vassallo came to the UK from Italy when he was four in 1952. He had married a British woman, has British children and grandchildren and, having only returned to Italy once for a holiday in the early 1970s, speaks little Italian and cannot read it.

In the UK, though, he had undoubtedly led a life of crime, racking up 31 separate convictions, in respect of 68 offences. Most of the offences involved dishonesty, including numerous offences of burglary, and resulted in custodial sentences ranging in length from 14 days to 54 months. The final straw for the Home Office was a burglary committed at the home of an elderly couple in 2012 for which Mr Vassallo received a 29 month sentence; this triggered deportation action.

The judgment was handed down on 14 January 2016 but it has taken a while for me to write it up, for which I apologise.

The Home Office was always going to lose this appeal in the sense that it would not be possible to deport Mr Vassallo. This is because the Home Office did not appeal tribunal findings that the removal of Mr Vassallo would be disproportionate in EU law. The key question of law in the case was whether Mr Vassallo had acquired permanent residence during his time in the UK by living for five years continuously exercising his Treaty rights. The problems for Mr Vassallo were multiple:

1. He had not actually undertaken much in the way of a qualifying activity in the UK during his losing years here, such as working, self employment, study or self sufficiency.

2. His continuous residence was frequently interrupted by non qualifying residence at Her Majesty’s expense. In prison.

3. The period of Mr Vassallo’s residence in the UK which was most likely potentially to qualify him for permanent residence — 1952 to 1963 — took place before the UK even joined the then European Economic Community in 1972.

4. The EEC/EC/EU itself did not exist for part of that period of residence, as it was only founded by the Treaty of Rome on 1 January 1958.

The Court considers the cases of Lassal Case C-162/09 and Dias Case C-325/09, which establish that residence exercising Treaty rights even before the commencement of the Citizen’s Directive do cause a person to have acquired a right of permanent residence, even thought that right did not actually exist at the time.

The Court also cites Ziolkowski and Szeja v Land Berlin Cases C-424/10 and C-425/10, in which the Court of Justice of the European Union held that residence by Polish nationals in a host Member State before Poland acceded to the European Union counted towards the acquisition of permanent residence.

While Lord Justice Richards, giving the lead judgment, expresses doubt about whether Mr Vassallo would have acquired a right of permanent residence between 1952 and 1963, he declines formally to decide the issue on the grounds that in any event Mr Vassallo would have lost that right later owing to his very long non qualifying period of residence subsequent to 1963. I confess I am unclear on the reasoning of the Court here, because I cannot for myself see how the later residence removes a right that had already been acquired. You can take a look for yourself at paragraphs 49 to 61 of the judgment. The finding is explicitly not on the basis that the periods in prison were such as to lose to the right that had already been acquired.

Finally, the Court concludes that although the tribunal had erred in law in finding that Mr Vassallo had acquired the right of permanent residence, the error was not material because the tribunal had already found that the removal of Mr Vassallo was disproportionate in EU law and this had not been challenged by the Home Office.

Hopefully Mr Vassallo will now be retiring from his life of crime.