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Doing Time Won’t Hasten EU Residency, Court Says

(CN) - Time behind bars does not count toward permanent residency requirements in the European Union, the EU's highest court ruled in a pair of opinions Thursday.

EU law allows European citizens and their family members - regardless of nationality - to move freely throughout the EU for work. Once a citizen has resided in another member state for five years continuously, he and his family members are automatically granted permanent residence in that country and after 10 years cannot be expelled except for serious public policy or security reasons.

Nigerian national Nnamdi Onuekwere married his Irish wife and moved legally to the U.K. When the couple applied for permanent residency, however, U.K. immigration officials discovered that Onuekwere had spent over three of the required five-year residency incarcerated for a variety of offenses. They denied the application.

Meanwhile, a Portuguese national identified only as Ms. G. faced deportation from the U.K. after she was sentenced to 21 months in prison for abusing one of her children. The woman argued that because she had lived legally in Britain for more than 10 years - six as a permanent resident - she qualified for the EU's highest level of protection against expulsion, despite her imprisonment.

The national courts involved in both cases asked the Court of Justice of the European Union whether prison time counted toward residency requirements in Onuekwere's case, and enhanced rights in Ms. G.'s situation.

For Onuekwere, the Luxembourg-based court said only the time he physically spent with his Irish wife counted toward his five-year requirement for permanent residency. But the man's troubles with the law mean other immigration difficulties as well, according to the ruling.

"The right of permanent residence is a key element in promoting social cohesion and was provided for by that directive in order to strengthen the feeling of EU citizenship," the court wrote. "The EU legislature accordingly made the acquisition of the right of permanent residence to the integration of the citizen of the Union in the host member state.

"Such integration is based not only on territorial and temporal factors but also on qualitative elements, relating to the level of integration in the host member state, to such an extent that the undermining of the link of integration between the person concerned and the host member state justifies the loss of the right of permanent residence," the court continued.

"The imposition of a prison sentence by the national court is such as to show the non-compliance by the person concerned with the values expressed by the society of the host member state in its criminal law, with the result that the taking into consideration of periods of imprisonment for the purposes of the acquisition by family members of a Union citizen who are not nationals of a member state of the right of permanent residence would clearly be contrary to the aim pursued by that directive in establishing that right of residence."

For Ms. G., the 10-year protection on which she relied counts back from the ordered expulsion date and excludes time spent in custody. Furthermore, like Onuekwere, Ms. G.'s incarceration broke the continuity required by EU immigration law - essentially counting as an absence from the U.K., according to the ruling.

But U.K. authorities must decide whether Ms. G. qualifies for enhanced protection, taking into account - again as in Onuekwere's situation - her integration into British society.

"A period of imprisonment is, in principle, capable both of interrupting the continuity of the period of residence for the purposes of that provision and of affecting the decision regarding the grant of the enhanced protection provided, even where the person concerned resided in the host member state for the 10 years prior to imprisonment," the court wrote. "However, the fact that that person resided in the host member state for the 10 years prior to imprisonment may be taken into consideration as part of the overall assessment required in order to determine whether the integrating links previously forged with the host member state have been broken."

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