Oa (Eea - Retained Right of Residence)
| Jurisdiction | England & Wales |
| Judge | Senior Immigration Judge Storey |
| Judgment Date | 02 September 2009 |
| Neutral Citation | [2010] UKAIT 3 |
| Date | 02 September 2009 |
| Court | Asylum and Immigration Tribunal |
[2010] UKAIT 3
Asylum and Immigration Tribunal
THE IMMIGRATION ACTS
Senior Immigration Judge Storey
For the Appellant: Dr V Onipede, Counsel, instructed by De Soyza & Fernando Solicitors
For the Respondent: Mr J Parkinson, Home Office Presenting Officer
OA (EEA — retained right of residence) Nigeria
i. Reg 10 of the Immigration (European Economic Area) Regulations 2006 is a free-standing provision which enables a family member who would otherwise cease to have a right of residence to continue to do so in certain circumstances. So far as concerns persons who fall within reg 10(5), so long as their marriage or civil partnership is at least three years old it is possible for them to qualify for a retained right of residence after just one year of residence in the United Kingdom. But to achieve a permanent right of residence on the strength of a retained right of residence it is always necessary to show residence in the UK for a continuous period of five years.
ii. Under reg 10(5)(a) the phrase “termination of the marriage …” can only mean the lawful ending of the marriage by legal proceedings (i.e. divorce); it cannot mean “breakdown of the marriage”; see also WW (EEA Regs. — civil partnership) Thailand [2009] UKAIT 00014 .
iii. To count as a qualifying period of residence under reg 15(1)(b) a person must show, inter alia, that the five years in question are ones in which the said residence has been “in accordance with these Regulations”. That entails that during those five years the EEA national on whom the family member relies in order to establish his or her right must have been continuously in the UK exercising Treaty rights (save for certain periods of absence specified in reg 3).
iv. For the purposes of reg 15(1)(b) the period of time during which a person “has resided in the United Kingdom with the EEA national…” must commence from the date the person first became a family member, that being the date of marriage in the case of a spouse.
v. By contrast, Reg 15(1)(f) provides a route for acquiring a permanent right of residence based in part on a retained right of residence. Under reg 15(1)(f) the family member has to show that he was residing in the United Kingdom in accordance with the Regulations for a continuous period of five years, and at the end of that period he has a retained right of residence.
The appellant is a national of Nigeria. In a decision notified on 29 June 2009 Immigration Judge (IJ) Gillespie allowed her appeal. The respondent was successful in obtaining an order for reconsideration and so the matter comes before me.
The background to this reconsideration is as follows. The appellant entered the United Kingdom on February 2000 and in about November 2000 claimed asylum. On 28 April 2001 she married a French national, Mr Abdoul Aziz Diop. Soon after she applied for the issue of a residence permit as the spouse of an EEA national (under the Immigration (European Economic Area) Regulations 2000). On 14 October 2003 she was granted such a permit. On 29 August 2008 she applied for issue of a permanent residence card residence permit as the family member who had retained the right of residence under reg 10(5) of the Immigration (European Economic Area) Regulations 2006 (hereafter the “2006 EEA Regulations). In her application for this she stated that her husband had left home and she had begun divorce proceedings. On 12 December 2008 the respondent requested her solicitors to provide her marriage certificate, decree absolute, evidence that she had been residing in the UK for five years and evidence that her EEA spouse had been exercising Treaty rights in the UK up until the time of the divorce. In the course of further correspondence the appellant's solicitors provided a number of documents including a birth certificate for her son born on 17 December 2003 and a letter from Her Majesty's Court Service. The latter stated that the appellant was not entitled to the decree sought because:
“The Petitioner continued to live with the respondent for sixteen months or so after finding out about the adultery. She says she found out in December 2004 and he did not leave till April 2006. She cannot therefore rely on adultery as grounds for divorce, see Matrimonial Causes Act 1973, s.2 (1).”
On 29 April 2009 the respondent made a decision refusing to issue her a permanent residence card.
It will assist, before proceeding further, to set out the relevant legal provisions and to note relevant jurisprudence of the European Court of Justice (ECJ).
Reg 6 of the 2006 EEA Regulations defines “qualified person” as meaning “a person who is an EEA national and in the United Kingdom as (a) a jobseeker; (b) a worker; (c) a self-employed person; (d) a self-sufficient person; or (e) a student”.
Reg 7(1) states that:
“Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person —
(a) his spouse or his civil partner…”
Reg 10, headed “Family member who has retained the right of residence”. provides
“10.–(1) In these Regulations, “family member who has retained the right of residence” means, subject to paragraph (8), a person who satisfies the conditions in paragraph (2), (3), ( 4) or (5).
(2) A person satisfies the conditions in this paragraph if—
(a) he was a family member of a qualified person when the qualified person died;
(b) he resided in the United Kingdom in accordance with these Regulations for at least the year immediately before the death of the qualified person; and
(c) he satisfies the condition in paragraph (6).
(3) A person satisfies the conditions in this paragraph if—
(a) he is the direct descendant of—
(i) a qualified person who has died;
(ii) a person who ceased to be a qualified person on ceasing to reside in the United Kingdom; or
(iii) the person who was the spouse or civil partner of the qualified person mentioned in sub-paragraph (i) when he died or is the spouse or civil partner of the person mentioned in sub-paragraph (ii); and
(b) he was attending an educational course in the United Kingdom immediately before the qualified person died or ceased to be a qualified person and continues to attend such a course.
(4) A person satisfies the conditions in this paragraph if the person is the parent with actual custody of a child who satisfies the condition in paragraph (3).
(5) A person satisfies the conditions in this paragraph if—
(a) he ceased to be a family member of a qualified person on the termination of the marriage or civil partnership of the qualified person;
(b) he was residing in the United Kingdom in accordance with these Regulations at the date of the termination;
(c) he satisfies the condition in paragraph (6); and
(d) either—
(i) prior to the initiation of the proceedings for the termination of the marriage or the civil partnership the marriage or civil partnership had lasted for at least three years and the parties to the marriage or civil partnership had resided in the United Kingdom for at least one year during its duration;
(ii) the former spouse or civil partner of the qualified person has custody of a child of the qualified person;
(iii) the former spouse or civil partner of the qualified person has the right of access to a child of the qualified person under the age of 18 and a court has ordered that such access must take place in the United Kingdom; or
(iv) the continued right of residence in the United Kingdom of the person is warranted by particularly difficult circumstances, such as he or another family member having been a victim of domestic violence while the marriage or civil partnership was subsisting.
(6) The condition in this paragraph is that the person—
(a) is not an EEA national but would, if he were an EEA national, be a worker, a self-employed person or a self-sufficient person under regulation 6; or
(b) is the family member of a person who falls within paragraph (a).
(7) In this regulation, “educational course” means a course within the scope of Article 12 of Council Regulation (EEC) No. 1612/68 on freedom of movement for workers.
(8) A person with a permanent right of residence under regulation 15 shall not become a family member who has retained the right of residence on the death or departure from the United Kingdom of the qualified person or the termination of the marriage or civil partnership, as the case may be, and a family member who has retained the right of residence shall cease to have that status on acquiring a permanent right of residence under regulation 15.”
Reg 15, headed “Permanent right of residence”, provides:
“15.–(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(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 had 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)...
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