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Case Law update _ EEA Nationals
 

Reference to the European Court of Justice on rights of residence for stepchildren and their primary carers

 

Alarape & Anor (Article 12, EC Reg 1612/68) Nigeria [2011] UKUT 413 (IAC) (10 October 2011) 

 

In this case a Nigerian national had married a French citizen living in the UK, and her son thus became the French national’s stepchild.  Under European law, family members of an EEA citizen will derive their immigration status from that EEA citizen, where s/he is working or studying in another EEA state.  As such, the mother and her son applied for permanent residence as the family members of an EEA citizen working or studying in the UK (‘exercising treaty rights’), five years after the marriage (five years being the qualifying period for permanent residence under European law, as incorporated into UK law).  The application was refused.  On appeal, a court held that the appellants had failed to show that the French national had been exercising treaty rights for the full five year period. 

 

Had the appellants been able to show that the French national had exercised treaty rights as a worker or student during the five years of the marriage, under European law the first appellant would have ‘retained’ a right to reside on her divorce, and her son’s immigration status would have derived from her status as permanently resident in the UK. 

 

The other potential route open to the appellants is that European law (Article 12 of Regulation 1612/68) provides that the primary carer of a child in full time education might derive his/her immigration status from that of the child’s, who has a right to remain in full time education (Baumbast and R [2002] ECR I-7091).  Given that the second appellant is a child for the purposes of European law even though he is 21 (because ‘child’ can mean yet to complete studying – Gaal C-7/94 [1995] ECR I-1031), the only bar to the second appellant being considered a child for the purposes is that he was the stepchild of the French national concerned, as opposed to his natural child.  The question is whether stepchildren are included in the scope of the regulations. 

 

In terms of the first appellant’s case, it was difficult to determine whether she might properly be described as the second appellant’s ‘primary carer’.  In Teixeira [2010] Imm AR 487  it was held that unless a child over the age of 21 continued to need the primary carer’s ‘presence and care’ in order to complete his/her education, the primary carer would lose his/her right of residence. 

 

Given the key issues raised, the court determined to make a formal request for advice from the European Court of Justice (the ECJ), namely a ‘reference’, asking whether the regulations applicable to children include stepchildren, and what is the proper definition of a primary carer in this context.  In particular, the court requested guidance on whether in a case such as this one, the child would need to be dependent on the parent, residing in that parent’s household, and receiving emotional support from that parent.  Finally, if the appellants are to be identified as having been child and parent as defined by Article 12 of Regulation 1612/68, will the fact of their residence under Article 12 for a continuous period of five years qualify them for permanent residence?

 

Zoe Sutherland

 

 

Dependant Other Family Members of EEA nationals

Moneke and others (EEA - OFMs) Nigeria [2011] UKUT 341 (IAC) (22 August 2011)

This Upper Tribunal case was heard on 14th June 2011 at Field House. The facts of the case are as follows:

There are two appellants both Nigerian nationals who applied for EEA residence cards in order to remain in the UK as the dependant family members of an EEA national. The Secretary of State for the Home Department (herein after referred to as the SSHD) rejected their applications. The appellants appealed and came before the First Tier Tribunal. Both the appellants argued that they were dependant on the EEA national prior to and following their arrival in the UK. The Immigration Judge dismissed the appeal stating that the appellants were required to show dependency on the sponsor in the country they were living in before they came to the UK which, in this case, was Germany. The IJ concluded that the Upper Tribunal decision in the case of RK (OFM-membership of household–dependency) India [2010] UKUT 421 (IAC) was inconsistent with the Court of Appeal decision in the case of Bigia & Ors [2009] EWCA Civ 79.

The appellants appealed against the decision and the Upper Tribunal accepted that the decision was erroneous and contrary to how the Directive was to be interpreted. 

Legal Framework

The Upper Tribunal considered the relevant provisions of Directive 2004/38/EC and in particular Article 3(2) which deals with other family members (OFM’s). The Upper tribunal set aside the decision of the First Tier Tribunal and proposed a fresh hearing in this case. However, they identified the following which should be adopted by Immigration Judges (subject to any future high court decisions):

“A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: there are alternative ways of qualifying as an OFM.

ii.               In either case the dependency or membership of the household must be on a person who is an EEA national at the material time. For this reason it is essential that tribunal judges establish when the sponsor acquired EEA nationality.

iii.             By contrast with Article 2(2) family members, an OFM must show qualification as such before arrival in the United Kingdom and the application to join the EEA national who is resident here.

iv.             Membership of a household has the meaning set out in KG (Sri Lanka) [2008] EWCA Civ 13 and Bigia & Ors [2009] EWCA Civ 79; that is to say it imports living for some period of time under the roof of a household that can be said to be that of the EEA national for a time when he or she had such nationality. That necessarily requires that whilst in possession of such nationality the family member has lived somewhere in the world in the same country as the EEA national, but not necessarily in an EEA state.

v.               By contrast the dependency on an EEA national can be dependency as a result of the material remittances sent by the EEA national to the family member, without the pair of them having lived in the same country at that time before making those remittances.

vi.             The country from which the OFM has come can be either the country from which he or she has come to the United Kingdom or his or her country of origin.

vii.           Notwithstanding the preliminary reference to the Court of Justice made by the Upper Tribunal in MR & Ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC) tribunal judges can proceed to determine OFM appeals in accordance with the guidance given by the Upper Tribunal in this and related cases, making sure to make findings of fact based on a rigorous examination of the evidence.

viii.         Where relevant, findings need also to be made on whether it is appropriate to issue a residence card in accordance with the discretion afforded by regulation 17(4) of the Immigration (European Economic Area) Regulations 2006.

ix.             In deciding whether a person falls within the material scope of regulation 8 of the 2006 Regulations, policy considerations relating to such matters as the appellant’s immigration history, the impact of an adverse decision on the exercise by the EEA national of his or her Treaty rights, etc are irrelevant. Such policy considerations are relevant, however, to the exercise of regulation 17(4) discretion.”

September 2011

 

 

Other Family Members of EEA nationals

Ihemedu (OFMs - meaning) Nigeria [2011] UKUT 340 (IAC) (17 August 2011)

This Upper Tribunal hearing took place on 16th May 2011 at Field House. The determination was promulgated on 17th August 2011.

FACTS OF THE CASE

The claimant in this case is a Nigerian national and the appellant is the Secretary of State for the Home Department (herein after referred to as the SSHD). The appellant made a decision to refuse the claimants application for an EEA residence card pursuant to the Immigration (European Economic Area) regulations 2006 (herein after referred to as the 2006 Regulations). The claimant’s application was based on his relationship to his cousin an EEA (Belgium) citizen, as an extended family member. The SSHD did not accept that they were related as claimed and the claimant appealed against this decision. The case came before the First Tier Tribunal where evidence was presented to state that the claimant had lived with the EEA sponsor in Belgium in 2008 and that, because he was unable to find employment there, he travelled to the UK illegally. The sponsor lived in Belgium since 2002 and between 2002 and 2005- he was financially supporting the claimant. The Immigration Judge was satisfied that the sponsor and claimant were related and that they were residing together at the same property in the UK as they were both named on a lease agreement.

The immigration judge went on to conclude that, as the claimant was not permitted to work in the UK as an illegal entrant, he was financially dependent on the EEA sponsor and therefore, that he qualified as an extended family member of an EEA national exercising Treaty rights in the UK.

The SSHD was granted permission to appeal against the decision to the Upper Tribunal arguing that the Tribunal failed to consider the concerns raised by the SSHD with respect to the claimed relationship and, that the Judge had misdirected himself in failing to make a finding as to whether the claimant had been dependant on the EEA national both prior to and since his arrival in the UK.

The SSHD relied on Article 10(2)(e) of Directive 2004/38/EC (The Citizens Directive) which provides that applicants claiming to be other family members (OFM’s) under Article 3(2)(a) must produce a document from their country of origin certifying that they are dependants or members of the household of the EEA national.

CONCLUSIONS

The Upper Tribunal held that the First Tier Tribunal had materially erred in law and set aside the initial decision. A new decision was made upholding the SSHD’s decision to refuse the claimant a residence card. The Tribunal held as follows:

“i) Article 3(2) of Directive 2004/38/EC (“Citizens Directive”) treats other family members (“OFMs”) as a residual category and, in contrast to close family members (“CFMs”) within the meaning of Article 2(2), does not limit it to particular types of relatives (plus spouses or civil partners). There is nothing in the Immigration (European Economic Area) Regulations 2006 akin to the Immigration Appeals (Family Visitor) Regulations 2003 which in our domestic immigration law seeks to specify exhaustively the categories of family relationship that can qualify a person. Only relatives are covered, albeit with focus on those relatives with whom the Union citizen has significant factual ties.

ii) An important  consideration in the context of an OFM/extended family member case is that if a claimant had come to the UK without applying for a family permit from abroad (for which provision is made in reg 12 of the Immigration (European Economic Area) Regulations 2006), this will mean that the UK authorities have been prevented from conducting the extensive examination of the individual’s personal circumstances envisaged by reg 12(3) and in the course of such an examination check the documentation submitted. If an applicant chooses not to apply from abroad for a family permit under reg 12 of the 2006 Regulations, thereby denying the UK authorities an opportunity to check documentation in the country concerned, he cannot expect any relaxation in the burden of proof that applies to him when seeking to establish an EEA right.

iii) Regulation 17(4) makes the issue of a residence card to an OFM/extended family member a matter of discretion. Where the Secretary of State has not yet exercised that discretion the most an Immigration Judge is entitled to do is to allow the appeal as being not in accordance with the law leaving the matter of whether to exercise this discretion in the appellant's favour or not to  the Secretary of State.”

4th September 2011

Definition of Jobseeker in European Community Law considered

Begum (EEA - worker - jobseeker) Pakistan [2011] UKUT 275 (IAC) (13 July 2011)

This Upper Tribunal case was heard on 22nd March 2011.

Facts of the case:  The appellant made an application for an EEA residence card as the family member of an EEA national which was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD) in November 2009. The application was refused on the basis that the appellant had failed to provide sufficient evidence to demonstrate that her husband, an Italian national, was exercising his Treaty rights in the UK as a worker. The UK Border Agency had not been able to verify the existence of the employer whose details the appellant had provided. The appellant appealed against the decision and she came before the First Tier Tribunal. Her appeal was dismissed in a determination promulgated 18th February 2010 on the basis that

“There has been no evidence of [business] premises, equipment or relevant insurances being carried. There has been no suggestion that there was a business plan of any sort. In its totality the setting up of the business and employment of the Appellant’s husband in the circumstances described tended to give the impression that it was a business of convenience”.

The appellant applied for permission to appeal to the Upper Tribunal on the basis that

1.      The Immigration Judge had failed to consider the relevant provisions identifying a worker under Community law

2.      The Immigration Judge had failed to make findings of fact and did not have regard to the fact that the appellant’s husband was looking for a second job

Permission to appeal was subsequently granted and the matter came before the Upper Tribunal.

Upper Tribunal conclusion

Reference was made to multiple authorities and precedent cases that dealt with this matter most notably, the case of Lawrie-Blum v Land Baden-Wurttemberg (case no. 66/85). In this case, the Court considered the features required for a Union Citizen to be considered a worker. It was held that the concept should be applied broadly.  It provided that “The essential feature of an employment relationship is that for a period of time a person performs services for and under the direction of another person in return for which he receives remuneration”.

In the appellant’s case, the Tribunal was satisfied that the first Immigration Judge had correctly assessed that the appellant’s husband was not a worker within the meaning of Community law. She had considered all the material before her and concluded that the job was not genuine. There was no error of law on this point.  The question was whether she had erred in law by not considering whether the EEA national was a jobseeker. The appellant relied on a transcript which had been prepared by her legal representatives and which clearly had not been considered by the Immigration Judge. There was no other evidence to demonstrate that the appellant’s husband was looking for work nor was it covered in their statements or the skeleton argument. The appellant was professionally represented yet this was not presented to the Immigration Judge. The Tribunal concluded that there was no error of law on this point either.

Reference was made to the provisions in the Citizens Directive in particular 14(4)(b) which was given effect in the UK through reg. 6(4) of the Immigration (European Economic Area) Regulations 2006 which provides:

6(4) For the purposes of paragraph (1)(a), “jobseeker” means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.

The Tribunal dismissed the appellants appeal. They held as follows:

 

“(1)   When deciding whether an EEA national is a worker for the purposes of the EEA Regulations, regard must be had to the fact that the term has a meaning in EU law, that it must be interpreted broadly and that it is not conditioned by the type of employment or the amount of income derived.  But a person who does not pursue effective and genuine activities, or pursues activities on such a small scale as to be regarded as purely marginal and ancillary or which have no economic value to an employer, is not a worker.  In this context, regard must be given to the nature of the employment relationship and the rights and duties of the person concerned to decide if work activities are effective and genuine.

 

(2)   When considering whether an EEA national is a jobseeker for the purposes of EU law, regard must be had to whether the person entered the United Kingdom to seek employment and, if so, whether that person can provide evidence that they have a genuine chance of being engaged.  If a person does not or cannot provide relevant evidence, then an appeal is bound to fail on this ground.”

 

Revocation of EEA residence card must be communicated

Nkrumah (OFM- annulment of residence permit) Ghana [2011] UKUT 163 (IAC) (12 July 2011)

This appeal was heard by the Upper tribunal on 25th February 2011. The facts of the case are as follows:

The appellant is a Ghanaian national. His sister is a national of the Netherlands and arrived in the UK in July 2003 where she is in employment and where she has been living with the appellant.  The appellant was studying in the UK and was being supported by his sister, the EEA national both in the UK and whilst he was living in Ghana.

In 2008, the appellant applied for an EEA residence card on the basis of being an extended family member of an EEA national within the meaning of regulation 8(2) of the Immigration (EEA) Regulations 2006 (herein after referred to as the EEA regulations.

In October 2009, the Home office granted a residence card valid for 5 years was issued (until October 2014). The residence was endorsed in the appellant’s passport and was retained by the home office until December 2009 when it was returned to the appellant with a letter stating that the application had been refused and that the appellant had a right of appeal.

The appellant subsequently appealed against this decision to refuse his application despite the fact that he had a residence permit in his passport which had not been cancelled or revoked. At appeal, the Immigration Judge was not satisfied that the appellant was entitled to a residence card and his appeal was dismissed. The appellant applied for permission to appeal to the Upper tribunal which was granted.

Issue before the Upper Tribunal

The Upper Tribunal focussed on one main point “is the residence card stamped in the passport a valid card unless or until it is revoked?”

The respondent (home office presenting officer) argued that the grant of a residence permit was a mistake and that the mistake was obvious with respect to the accompanying refusal letter. The Upper Tribunal disagreed. The Tribunal provided that “The fact that it may have been granted by mistake does not make it a nullity. There is no suggestion that it was obtained by misrepresentation.” The Tribunal referred to the fact that the residence permit was stamped in the appellant’s passport two months before the date of the refusal letter. The home office had made an administrative error however, they were expected to communicate that error and properly revoke or cancel the residence permit.  Reference was made to the case of Samsam v Secretary of State [2011] UKUT 00165 IAC which considered the circumstances in which residence permits could be revoked.

Error of law

The Upper Tribunal held that the First Tier Tribunal decision contained an error of law as the immigration judge failed to recognise that the residence card had been validly issued and that this was communicated to the appellant.

The Tribunal set aside the decision and remade it. They held that the refusal of the application was not in accordance with the law. The residence permit should have been revoked in accordance with regulation 20 or cancelled and this should have been effectively communicated to the appellant.

It was still open for the home office to cancel the appellant’s residence card if they wished to do so. Reference was made to recent ‘other family members’ case law such as MR and ors (EEA Extended family members) Bangladesh [2010] UKUT 449 (IAC) where it was established that pre-entry dependency is necessary before a person can qualify for the favourable exercise of discretion under regulation 8.  The Tribunal confirmed that dependency meant financial support required to meet essential living requirements. The appellant could qualify for a residence permit if he could show continued dependency or a continued membership of his sister’s household.

The appeal was allowed.

July 2011

 

No need to prove former spouse was exercising treaty rights for continuous five years in order to establish retention of rights

Amos v Secretary of State for the Home Department [2011] EWCA Civ 552 (12 May 2011)

This case was heard in the Court of Appeal on appeal from the Upper Tribunal. There were two appellants: Mr. Amos and Ms. Theophilus.

Appellant no. 1 Mr Amos

 The appellant applied for permanent residence under the provisions of the Immigration (European Economic Area) Regulations 2006 (herein after referred to as the EEA regulations).  The appellant is a Nigerian national who married a French national (the EEA national) in the UK in January 2003. He was granted a five year residence card until 14th March 2008. On 1st March 2008, he commenced divorce proceedings and a decree absolute was received on 18th August 2008.

The appellant’s application was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD). The appellant appealed and his appeal was dismissed. The case went before the Upper Tribunal where it was also dismissed in a determination dated 23rd April 2010. He was refused on the basis that a family member of an EEA national must show that for the period of 5 years preceding the claim for the right of permanent residence, the EEA national on whom the applicant depends, must have been residing in the UK whilst exercising treaty rights. This decision was based on the earlier case of OA [2010] UKAIT 00003. The appellant could not show evidence that his EEA national spouse had worked in accordance with this and therefore, his appeal was dismissed.

Appellant no. 2 Ms Theophilus

This appellant was also a citizen of Nigeria and married to a French national in June 2003. She was granted a 5 year residence card from 27th August 2003 until 21st August 2008. Her marriage broke down in late 2007 and the couple separated. Divorce proceedings began in July 2008 and a decree absolute was granted in December 2008. The appellant had worked throughout her time in the UK. She was also rejected permanent residence and her appeal was dismissed on the grounds that she did not satisfy regulation 10(5)(b) as she could not show that her EEA national spouse had exercised treaty rights at the date of their divorce or even if he remained in the UK at that time.

Consideration of EEA Regulations

The Court looked at the principal provisions contained in the regulations dealing with the definition of ‘qualified persons’ in regulation 6. They also considered regulation 10 which deals with retained rights of residence. 

The Regulations provide that, a person who ceases to be the family member of a qualified EEA national, can retain rights provided certain provisions are met; namely, that the marriage lasted for three years, one year of the marriage was spent in the UK and the applicant in question, is not an EEA national but would, if her were an EEA national, be a worker, self-employed person or a self-sufficient person under regulation 6 or is the family member of a person who falls within paragraph (a).

The court also considered regulations 13 to 15 (dealing with initial right of residence, extended right of residence and permanent right of residence in the UK).

Permanent right of residence- Regulation 15

Regulation 15 provides that persons can acquire permanent residence in the UK provided they satisfy the conditions below:

(a)    An EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b)    a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these regulations for a continuous period of five years;

(c)     a worker or self-employed person who has ceased activity;

(d)    the family member of a worker or self-employed person who has ceased activity;

(e)    a person who was the family member of a worker or self-employed person where—

(i)                  the worker or self-employed person has died;

(ii)                the family member resided with him immediately before his death; and

(iii)               the worker or self-employed person has resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;

(f)     a person who-

(i)                  has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and

(ii)                was, at the end of that period, a family member who has retained a right of residence

In the case of Ms. Theophilus, it was argued that she should not be required to prove her former husband was or had been working as they were separated whereas the SSHD could undertake the necessary checks by checking national insurance contributions or tax records. The Court was asked to refer the question to the European Court of Justice for an interpretation of the Directive in the circumstances of the appellants.  The SSHD argued that Ms. Theophilus could have asked the Tribunal to issue an interlocutory order for the production of any documents in the possession of the HMRC or social security authorities and that the SSHD was not under a duty to prove her case for her.

Conclusion

The Court held that divorced spouses must establish that they have retained their rights of residence. Reference was made to Article 16.2 which applied to family members of EEA nationals who must have resided with the EEA national in the host Member State legally for a continuous period of five years. The word ‘legally’ meant in accordance with Community Law which essentially depends on the exercise of treaty rights.

Reference was made to the case of Diatta v Land Berlin ECR 567 in which the Court determined that family members of a migrant worker’s family are not necessarily required to permanently live with him in order to qualify for a right of residence under article 10. The Court stated that, following on from that case, ‘separation short of divorce does not affect that right of the non-national spouse under Article 16 of the Directive if both the EEA national and his or her non-national spouse continue to reside in the same Member State’.

Article 13

Article 13 deals specifically with the retention of the right of residence upon divorce. It does not confer an independent right of residence however; it uses the same language as that in Article 12 (which refers to widows or widowers acquiring the right of residence). The Court stated that the Directive could not require the widow/widower to show that her or his deceased partner continues to work in order for her or him to retain a right of residence. Therefore the same interpretation was to be applied to Article 13. The Court held that the appellants should not be required to show that their former partners were working for a continuous period of 5 years prior to their applications in order to establish a right of residence (see paragraph 25 of the determination). It was held that the case of OA (above) was incorrectly decided. The Court stated that ‘If, immediately before divorce, the requirements of Article 7.2 are satisfied, the non-national must then satisfy the requirements of Article 13.2’. Therefore, in order to qualify, the applicant must show that prior to the initiation of divorce (or annulment or termination of registered partnership), the marriage/registered partnership lasted for 3 years one of which was spent in the UK. This is subject to Article 13.2 which provides that the applicant can show that he or she is a worker, self-employed or that he or she has sufficient resources and that they will not become a burden on the host Member State.

In the case of Mr Amos, the Tribunal had focused on whether his former spouse had worked for a continuous period of five years and therefore, the Court decided to set aside the order made by the Tribunal and the hearing was remitted for a fresh hearing. In the case of Ms Theophilus, the SSHD was not required to assist her in establishing her case. This would be irrational. However, the SSHD conceded that her case be remitted as the Tribunal had misconstrued the requirements under the Regulations.

May 2011

 

BN (OFM- annulment of residence permit) Ghana [2011] UKUT 163 (IAC) (04 April 2011)

 

This case concerned an appeal before the Upper Tribunal (Immigration and Asylum Chamber) from one Mr. BN, regarding the refusal of his application for an EEA residence card. The respondent was the Secretary of State for the Home Department.

 

Appellant history

 

The appellant was born in Ghana in 1970. He has a sister, also born in Ghana, who subsequently became a national of the Netherlands and came to the United Kingdom in July 2003. Since then, she has been sharing accommodation in Reading with the appellant, who claimed to be dependent on her for financial support.

 

In 2008,  BN applied to the Home Office for an EEA (European Economic Area) residence card. He applied as a member of the sister’s extended family, as permitted by Regulation 8(2) of the Immigration (EEA) Regulations 2006 (the Regulations).

 

On October 21st 2009, a residence card valid for five years was endorsed in the appellant’s passport. However, the passport was retained by the Home Office until December before being sent back to the appellant with a letter stating that his application for a residence card had been refused.

 

BN  appealed against the refusal decision, basing his appeal on the grounds that he now had a residence permit that had not been cancelled or revoked in his passport. His appeal was initially dismissed by the Immigration Judge prompting BN to take his case before the Upper Tribunal.

 

The case

 

The Tribunal identified the key question as this: Was the residence card stamped in BN’s passport valid?

 

It was argued by the respondent that the apparent granting of the card by passport-stamp had been a mistake, and furthermore a mistake that should have been obvious to the appellant based on the rejection letter accompanying his passport on its return. The respondent maintained that the residence card stamped in the passport could not be taken as valid when the operative decision had clearly been refusal.

 

The tribunal did not concur with this reasoning, pointing out that the residence card had been “unambiguously” stamped in the passport- this was not simply a case of contradictory correspondence regarding the eventual issue of a card; the card had manifestly been provided. Based on precedents set forth in Rafiq v SSHD [1998] INLR 349 at 355 and discussed in Mcdonald Immigration Law and Practice (Eight Edition), residence cards enter effect as soon as communicated to the applicant. If a residence card is issued by mistake, it is nevertheless still issued and therefore valid. There was no suggestion that the card in this case was in any way obtained through misrepresentation.

 

Furthermore, it was pointed out that the residence card could have been annulled by the Home Office at any point prior to communicating the refusal letter- there was more than adequate time for this, since the stamping of the former was dated some two months before the issue of the latter. The card was not annulled.

 

Conclusion

 

It was firmly decided that the refusal of an already-granted residence card application was unlawful. However, the court did note that the Secretary of State still had the power to revoke BN’s residence card provided that a “lack of entitlement” on his part could be demonstrated. Under regulation 8, entitlement would require verifiable financial dependence on his sister (see SM (India) v ECO Mumbai [2009] EWCA civ 1426, applying the case of Lebon [1987] ECR 2811). Naturally, proof of such dependence would qualify Mr. BN for the residence card.

 

His appeal having been successful,BN’s residence card was deemed valid until its natural expiry in October 2014. The failure of his earlier appeal before the Immigration Judge was declared a material error of law.
May 2011
 
Elliot Gresswell 
 
 
Time spent in prison to be disregarded for the purposes of permanent residence

SO (imprisonment breaks continuity of residence) Nigeria [2011] UKUT 164 (IAC) (07 April 2011)

This Upper Tribunal case was heard on 24th March 2011 at Field House. The case considered whether time spent in prison could be taken into account for the purposes of long residence.

The Secretary of State for the Home Department (herein after referred to as the SSHD) appealed against the decision of Immigration Judge Neuberger in his decision promulgated 15th December 2010 allowing the respondents appeal. The SSHD had, by way of a decision dated 22nd September 2010, refused the respondent a residence card as confirmation of a permanent right to reside in the UK under Regulation 15(1) of the Immigration (European Economic Area) Regulations 2006 (herein after referred to as the EEA regulations).

The issue raised in this appeal was whether time spent in prison by the respondent SO could be calculated towards the 5 years continuous residence requirement (under Regulation 15 (1) (f))

Permanent Right of Residence - Regulation 15

Regulation 15 provides that persons can acquire the right to permanently reside in the UK if they have resided in the UK in accordance with the EEA regulations for a continuous period of 5 years. The respondent is a Nigerian national married to a Dutch national in September 2002. He was granted permission to remain in the UK as a family member of an EEA national. His marriage lasted for over 7 years however, the couple divorced in January 2010.

In April 2006, the respondent was convicted of using a false instrument and was sentenced to 20 months imprisonment. The respondent was released from prison in January 2007.  In March 2010, the respondent submitted an application for a residence card as confirmation of his right to reside in the UK. He sought a retained right of residence on the basis of having completed 5 years residence. The SSHD rejected his application and relied on the case of HR (Portugal) v SSHD [2009] EWCA Civ 371. In that case, the Court of Appeal ruled that the EEA national, convicted of a crime and who had spent a ‘significant period’ of time in prison, would be deemed not to be resident in the UK for the purposes of Regulation 21(4)(a).

The respondents representatives argued that he had only spent 4 months in prison and that this could not be considered to be a significant period of time and that the respondents continuity of residence had not therefore, been broken.

The SSHD on the other hand, argued that, imprisonment, no matter how long, broke the period necessary to qualify for permanent residence.

The Tribunal considered the recent case of Caesar Carvalho v SSHD and the SSHD v Omar Abdullah Omar [2010] EWCA Civ 1406 which also considered time spent in prison and calculation towards the qualifying period. It was held that the EEA worker was not legally resident during the period spent in prison and that imprisonment cannot count towards continuous legal residence required to acquire the right of permanent residence.

The Tribunal held that Immigration Judge Neuberger’s approach in considering whether the length of imprisonment was substantial or not was incorrect. In effect, the length of imprisonment did not matter as continuity would be deemed broken with the consequence that the five year continuous period starts afresh.

As a result, the SSHD’s appeal was allowed and the Immigration Judge’s decision was reversed.

May 2011

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
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