Babajanov (Continuity of Residence - Immigration (EEA) Regulations 2006) [Asylum and Immigration Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Dawson,Allen UTJ,Dawson UTJ,Allen |
| Judgment Date | 03 October 2013 |
| Neutral Citation | [2013] UKUT 513 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 03 October 2013 |
[2013] UKUT 513 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Allen
UPPER TRIBUNAL JUDGE Dawson
For the Appellant: Miss B Asanovic, Counsel, instructed by Turpin & Miller Solicitors
For the Respondent: Mr N Bramble, Senior Presenting Officer
Babajanov (Continuity of residence — Immigration (EEA) Regulations 2006)
(1) The right of permanent residence under regulation 15 of the Immigration (European Economic Area) Regulations 2006 is capable of being established whilst a national of a Member State or a family member of that national is outside the host country.
(2) Leaving aside military service, the reasons for that absence must come within regulation 3(2) (which corresponds with provisions 16(3) of Directive 2004/38/EC). The specific reasons set out in regulation 3(2)(c) are not exhaustive, given the phrase “such as”, which precedes them; but the absence must be for “an important reason”.
(3) Accordingly, in determining whether a period of absence falls within regulation 3(2)(c), regard must be had to the purpose giving rise to that absence. The purpose needs to be of an importance comparable to those specified in regulation 3(2)(c) and involve (i) compelling events and/or (ii) an activity linked to the exercise of Treaty rights in the host country.
We found an error of law in the determination of the First-tier Tribunal for reasons given in our decision dated 22 May 2013 which was in these terms:
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“1. The claimant, who is a citizen of Azerbaijan born 11 May 1991, appeals with permission the decision of First-tier Tribunal Judge Hart TD who dismissed his appeal against the Secretary of State's decision dated 19 April 2012 refusing to issue a document certifying permanent residence by the claimant in the United Kingdom under the Immigration (European Economic Area) Regulations 2006 (as amended).
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2. The claimant was the second appellant in the appeal before the First-tier Tribunal; his mother, also a national of Azerbaijan, succeeded on the basis of the judge's finding that she had acquired and not lost her right of permanent residence.
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3. The short immigration history of the parties is that the claimant's mother married an Irish national called Thomas McLean on 17 May 2003. They had met in Azerbaijan. In June 2003 he returned to the United Kingdom. The claimant and his mother were issued with a family permit and travelled to the United Kingdom on 30 April 2004. They had previously been in Ireland for a period that year. Residence cards were issued to the claimant and his mother on 8 August 2005 due to expire in July 2010 and the family took up residence in this country. On 7 August 2008 the family, including the claimant, travelled to Ireland where his mother gave birth to a daughter born 8 February 2009. She returned with her daughter to the United Kingdom on 2 April 2009. The claimant remained in Ireland until he returned to the United Kingdom in June 2010. He endeavoured unsuccessfully to find employment in Ireland. He also undertook a course of study.
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4. Following expiry of the residence cards for the claimant and his mother, in July 2010 applications were made for new residence cards which were issued in March 2011 following a successful appeal against an initial refusal which was heard on 4 February 2011. The First-tier Tribunal Judge found that Mr Mclean was a qualified person between June 2003 and August 2008.
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5. On 3 January 2012 the claimant's mother ceased cohabiting with Mr Mclean following a deterioration in their marriage from July 2011. The claimant (who turned 21 on 10 May 2012) and his mother applied for permanent residence cards on 19 March 2012.
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6. In allowing the appeal by the claimant's mother the judge concluded that by 30 April 2009 (and thus after she had returned to the United Kingdom); (i) she had acquired a permanent right of residence and, (ii) had not been absent from the United Kingdom since then save for brief visits between 16 May and August 2009 to her husband's parents in addition to visits which she had made to Russia. The judge was satisfied that all these visits were less than two years and as a consequence she had not lost her right to permanent residence.
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7. As to the claimant, after considering the decision by the Court of Justice of the European Union in Dias (European citizenship] [2011] 21 July 2011 and the accompanying opinion of the Advocate General, the judge reached these conclusions:
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(i) The claimant was the dependant child of his mother who was the spouse of an EEA national and that until 10 May 2012 he was the direct descendant of his mother and aged under 21.
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(ii) The claimant's absence in Ireland had been for 22 months and that this exceeded permitted absences of six months and exceptionally, twelve months (with reference to Regulation 15 of the 2006 Regulations).
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(iii) It was accepted that (these absences) broke the continuity of the claimant's residence in the United Kingdom as the dependant child of Mr McLean's spouse.
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(iv) Having now reached the age of 21, ceased education and established his own independent life, it was not asserted that the claimant remained dependent upon either Mr McLean or his mother.
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8. The judge noted argument from the claimant's counsel that these absences should not bar him from a right of permanent residence, however he went on to find that the claimant's residence in the United Kingdom was broken when he travelled on 7 August 2008 to Ireland and did not return until June 2010 during which he had lived with his stepfather's parents and had undertaken education.
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9. According to the judge, the inherent difficulty in the claimant's case was that he had not resided in the host member state for a period of 22 months and was not therefore integrated in this country for that period. The judge did not consider the decision in Dias to be authority for adding together two separate periods of residence in one country, “interspersed with a long continuous gap overseas to assemble a period for five years continuous residence”.
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10. An argument based on proportionality was also advanced by the claimant's counsel based on him having attained a significant degree of integration in the United Kingdom. This did not persuade the judge who considered it a stumbling block that he had “… not acquired a degree of integration in the United Kingdom when he spent 22 months in Ireland returning only in June 2010”. Whilst acknowledging the concept of proportionality in reg. 21 of the 2006 Regulations. he did not consider that this applied to the grant of recognition of permanent residence after a period for absence “… which does not comply with the precise Regulations”.
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11. We heard argument from Miss Asanovic supported by a detailed skeleton argument and a reply from Mr Bramble who acknowledged some difficulties with the judge's determination but steadfastly maintained that such errors were not material. We announced our decision at the hearing that we were satisfied the judge had made a material error of law on the first ground advanced by Miss Asanovic and adjourned the case for a further hearing in order to remake the decision, taking account of any new evidence the claimant wished to produce about his stay in Ireland and further argument on the second ground.
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12. The reasons for our decision are as follows.
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13. In respect of the first ground, Miss Asanovic was content that reg. 3(2) correctly transposed Article 16 of the Directive 2004/58/EC. The only discernible difference is that Article 16(3) provides that “continuity of residence shall not be affected by temporary absences ….” whereas Regulation 3(2) provides that, “Continuity of residence is not affected by …”
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14. We therefore will consider this appeal in accordance with the terms of the 2006 Regulations. Relevant to our decision are Regulations 15 and 3(2) as follows:
‘Regulation 15 – Permanent right of residence
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(1) The following persons shall acquire the right to reside in the United Kingdom permanently –
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(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;
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(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; …”
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(2) [The] right of permanent residence under this Regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.”
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15. Regulation 3(2) provides:
(2) Continuity of residence is not affected by –
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(a) periods of absence from the United Kingdom which do not exceed six months in total in any year;
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(b) periods of absence from the United Kingdom on military service; or
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(c) any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and child birth, serious illness, study or vocational training or an overseas posting.’
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16. The first ground of application argues that no formal admissions were made to the effect that it had been admitted that the continuity of residence had been broken by the claimant's absence for 22 months in Ireland. We accept this having regard to the subsequent findings by the judge at [60] that the claimant's residence in the United Kingdom was broken by the Irish absence. There would have been no need for such a finding to be made had there been a concession.
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17. In her oral argument, Miss Asanovic distinguished presence from residence so that a period of absence from the United Kingdom did not of itself break “residence”. She argued that neither the Directive nor the Regulations states that temporary...
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Upper Tribunal (Immigration and asylum chamber), 2013-10-03, [2013] UKUT 513 (IAC) (Babajanov (Continuity of residence - Immigration (EEA) Regulations 2006))
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