In a reconsidered appeal, the Senior Immigration Jjudge has overturned the appeal decision of the Immigration Judge, allowing three appellants to obtain registration certificates as confirmation of their right to residence in the UK.

The appellants were Bulgarian citizens who were husband, wife and child. The first appellant lawfully entered the UK in 1999, the second appellant married the first appellant and came to the UK in 2005. The third appellant was born in the UK in 2006.

The first appellant sought a registration certificate confirming his right to residence in the UK as a worker, and the second and third appellants sought registration certificates as family members of the first appellant. The Home Department refused to issue the certificates in January 2009. The Immigration Judge dismissed appeals against this decision by all three appellants in February 2009.

The argument before the Immigration Judge in the original appeal was that the first appellant fell within the exemption of reg 2(3) of the Accession Regulations 2006, which states that:

“A national of Bulgaria or Romania is not an accession State national subject to worker authorisation if he was legally working in the United Kingdom on 31st December 2006 and had been legally working in the United Kingdom without interruption throughout the period of 12 months ending on that date.”

During 2006 and 2007, the appellant had worked for a number of employers in the UK. However, the Immigration Judge correctly observed that there had been a period in excess of 30 days in 2006 when the appellant did not work, and therefore there had been interruption, contrary to reg 12(2)(c).

The grounds for reconsideration of the appeal were that the Immigration Judge had overlooked a separate exemption in reg 2(2) of the 2006 Regulations. This issue should have been addressed by the Immigration Judge as it appeared in the original grounds of appeal. The respondent argued that reg 2(2) was not free-standing and that regs 2(2)-(4) were linked. The senior immigration judge dismissed this argument and stated that the paragraphs of reg 2 were to be read as separate exemptions. This is due to the facts that none of them are expressed as cumulative requirements, and that they delineate different persons in different situations.

The Accession Amendment Regulations came into force in March 2007. Reg 2(2) in its amended form allows an A2 national to be exempt from worker authorisation either because of a historic position or a present position.

Therefore, the decision was made that the Immigration Judge had erred in law by failing to recognise that the first appellant had separate ground for exemption from worker authorisation, under reg 2(2) ) by virtue of the fact that on 31 December 2006 he had leave to enter or remain in the UK under the 1971 Act that was not subject to any condition restricting his employment.

However, an A2 national who is exempt from worker authorisation will still be ineligible for a registration certificate unless he can show he is a qualified person under the 2006 EEA Regulations, which state that a qualified person is either a student, jobseeker, self-employed, self-sufficient or a worker. The Immigration Judge’s approach to the exemption issue had led her to exclude consideration of the first appellant as a worker, and as a result, she had materially erred in law.

The senior immigration judge in the reconsidered appeal agreed that the first appellant did not qualify as a student, jobseeker, self-employed or self-sufficient. He then considered the appellant as a worker and found that he did qualify as a worker. He had worked for several employers, establishing ties with the national labour market. In October 2008 he applied for job seekers allowance, showing that once he fell unemployed he was seeking a benefit of a financial nature intended to facilitate his return to the labour market. He has commenced employment since September 2009.

Therefore, the first appellant was granted a registration certificate under reg 16(1) and the second and third appellants were granted registration certificates under reg 16(3) as family members.