Permanent residence - beware the Tribunal not seeing the wood for the trees
30 January 2012
Over the course of the last 12 months or so the Asylum and Immigration Chamber of the Upper Tribunal has issued a series of determinations covering the rights to reside in the United Kingdom which are conferred on the family members of nationals of the countries comprising the European Economic Area (EEA), who are themselves nationals of countries outside the EEA.
In the UK these rights are set out in the Immigration (European Economic Area) Regulations 2006 (known as "the EEA Regulations”), which implement the European Union law set out in the Citizens’ Directive (which is the short name for Directive 2004/38/EC of the European Parliament and Council on the Right of Citizens of the European Union and their Family Members to Move and Reside Freely within the Territory of the Member States).
In all cases like these reference is made to the "exercise of Treaty rights” by the "EEA national”. EEA nationals are nationals of the countries who comprise the European Union as well as those of Norway, Iceland, Liechtenstein and Switzerland. "Treaty rights” are the rights of such people to come to the UK as workers (which includes people who are "jobseekers”), as self-employed people, to study or if they are simply self-sufficient.
The most recent of these determinations is Idezuna (EEA - permanent residence) Nigeria [2011] UKUT 00474 (IAC), which concerns the approach to be taken by the First and Upper Tribunals in deciding whether the non-EEA national family member (of an EEA national) has or has not acquired the right to reside permanently in the UK.
The right of permanent residence is conferred by Article 16 of the Citizens’ Directive, which is transposed in the UK by Regulation 17 of the EEA Regulations. It is acquired by EEA nationals and their family members who have resided in the UK for a period of five years.
The Nigerian Appellant Mr Idezuna had married his Portuguese wife in April of 2004. The UK had given him a residence card showing that he was the family member of an EEA national. Such residence cards are valid for five years, and Mr Idezuna’s expired on 13 September 2009. The couple got divorced in March of 2010, and Mr Idezuna then asked the United Kingdom Border Agency (UKBA) for a residence card showing that he was entitled to live in the UK permanently.
Mr Idezuna’s application was refused. The UKBA said that he had not provided evidence showing that his Portuguese wife had been exercising Treaty rights at the time of their divorce or that he had been living in the UK in accordance with the EEA Regulations for a period of five years.
He appealed but the Immigration Judge in the First Tier Tribunal upheld the UKBA’s decision, saying that Mr Idezuna had not shown that his ex-wife had been exercising Treaty rights in the UK for the five years up to the divorce. He had also not shown that he had been living in the UK continuously since his marriage.
The Upper Tribunal found that the First Tier Tribunal judge had erred in law materially. First of all – the judge had failed to appreciate that Mr Idezuna had acquired the necessary five years living in the UK between the date of his marriage in April 2004 and April of 2009. During this time, his ex-wife had been in the UK "unbrokenly” exercising Treaty rights. The Immigration Judge’s error was in failing to include time prior to the coming into force of the Citizens’ Directive in his calculation of the five-year period.
The question of whether time before the Citizen’s Directive came into force was relevant to the acquisition of the right conferred by the Directive’s Article 16 – permanent residence – had been resolved by the European Court of Justice’s ruling in Secretary of State for Work and Pensions v Lassal [2011] Imm AR 134, in which the Court had held that any interpretation of the continuous residence requirement such that the first or last day of the period of five years' continuous residence had to fall after 30 April 2006 (when the Directive came into force) would be contrary to the purpose and effectiveness of the Directive.
Mr Idezuna had therefore acquired his right to permanent residence in the UK in April of 2009 (when he was still married to his wife). Whether or not he was living together with his wife for the whole of this period was irrelevant – all that mattered was that both of them were in the UK (PM (EEA – spouse – "residing with” Turkey [2011] UKUT 90 (IAC).
The second issue was whether Mr Idezuna had been living in the UK continuously since his marriage. The Immigration Judge in the First Tier Tribunal had taken this point against Mr Idezuna without giving him an opportunity to comment on it, which also comprised an error of law. As it turned out, there had been only two short absences which fell comfortably within those permitted by the Directive’s Article 16 (3) and Regulation 3 (2).
The Tribunal reported this case to warn the First Tier Tribunal against focussing so much on the nature of the relationship between the non-EEA national family member of the EEA national and the question of whether the EEA national had been exercising Treaty rights for the whole of the relevant period – to the extent of failing to notice that an Appellant may have acquired a right of residence on the basis of historical facts which were not disputed.
In other words it was important not to lose sight of the wood when confronted with an abundance of trees. What had happened up to and after Mr Idezuna’s divorce, and what his wife had been doing at those times had in fact been wholly irrelevant to the question of whether he had the right to reside in the UK.
European law and its implementation via the Immigration (European Economic Area) Regulations 2006 is complex. Anyone who is considering applying to the UKBA for residence documents or who has been refused such a document is strongly advised to seek professional legal advice.
