Read the Chindamo judgment in full

Learco Chindamo has won the right to stay in Britain under a new law that gives him “higher protection” as a European Union citizen, lawyers said today.

The ruling by Judge David Allen makes clear that the decision to allow the killer of Philip Lawrence, the headmaster, to remain in Britain is based primarily on EU and not human rights law.

Chindamo, 26, as an Italian national who has been in Britain for about 20 years, has the higher protection afforded to all EU citizens against expulsion. The level of protection increases according to the time spent in Britain but Chindamo lost the argument that his time spent in jail should count towards his UK residency period, which would have brought him an even higher level of protection.

He also won an argument under the Human Rights Act that he was entitled to respect for a family life and that removal in his case would be disproportionate. But this was secondary to his case under EU law.

Under articles 27 and 28 of the EU Citizens’ Directive 2004, which took effect last year, an EU citizen can only be expelled on grounds of public policy, public security or public health. The court would decide whether the personal conduct of the individual represented a “genuine present and sufficiently serious threat affecting one of the fundamental interests of society”. The court would also take into account the time an individual had spent in the host country, his family links and what links he had with the country to which he might be deported.

The EU law makes clear that the court cannot only look at past convictions but must consider whether the offender represents a genuine and serious threat at the present time.

The tribunal panel of three under the senior immigration judge, David Allen, concluded that Chindamo's was clearly a serious offence but that his family life was here and that he had no family links or other connections with Italy. It would therefore be disproportionate to remove him.

The panel also concluded that there was no evidence that Chindamo posed a “present and sufficiently serious threat” to the fundamentals of society.

Laura Dubinsky, an immigration barrister at Doughty Street Chambers, said: “This was the key point of the decision and formed the bulk of the judgment. EU law provides special protections for EU citizens from explusion. A person in Chindamo’s position cannot be expelled unless there are grounds of public policy, security or health.”

The tribunal also then considered a further point argued by Chindamo’s lawyers, Ms Dubinsky said, namely his right to respect for a family life under article eight of the Human Rights Act.

“The tribunal then performs a balancing act, weighing the interests of the individual against the interests of the community,” Ms Dubinsky said. “It came down on the side that removal would be disproportionate interference with his right to a family life, given the special circumstances of his case which include the fact that he had no ties with Italy, heavy reliance on UK family and did not pose a risk of reoffending.”

The decision was a “proper application” of EU law and did not set any precedent, turning on the very particular facts of the case, Ms Dubinsky said. “It has gained notoriety because of those facts and is an important decision for the individual. But it is not setting a new direction.”

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