OA (Prisoner – not a qualified worker)
| Jurisdiction | England & Wales |
| Judge | SENIOR IMMIGRATION JUDGE |
| Judgment Date | 01 August 2006 |
| Neutral Citation | [2006] UKAIT 66 |
| Court | Asylum and Immigration Tribunal |
| Date | 01 August 2006 |
[2006] UKAIT 66
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Senior Immigration Judge Jordan
Senior Immigration Judge Goldstein
For the Appellant: Mr M. O'Connor, counsel, instructed by Cranbrook, solicitors
For the Respondent: Mr P. D'Silva, Home Office Presenting Officer
OA (Prisoner — not a qualified worker) Nigeria
A serving prisoner is not a worker for the purposes of the Immigration (European Economic Area) Regulations 2000 or 2006 and a spouse is not, therefore, entitled to a residence card.
The appellant, born 27 October 1972 is now aged 33. She seeks reconsideration of the determination of Immigration Judge S. Clarke, promulgated on 28 July 2005 in which she dismissed the appellant's appeal against the decision of the Secretary of State made under the Immigration (European Economic Area) Regulations 2000. The basis of the respondent's decision was that he was not satisfied that her husband was in the United Kingdom and a qualified person within the meaning of the 2000 regulations. Accordingly, on her arrival in the United Kingdom from Marseilles, he revoked her residence permit and cancelled her leave to remain in the United Kingdom.
On further inquiry, it transpired that her husband, Mr R, a Portuguese national, was serving a seven-year term of imprisonment imposed at Croydon Crown Court on 9 March 2005 for an offence of being knowingly concerned in the importation of a Class A drug. The Secretary of State therefore took the view that, as a person serving a term of imprisonment, the appellant's husband was not a qualified person exercising treaty rights pursuant to the 2000 regulations, thereby justifying the respondent's earlier decision, albeit on different grounds.
By a decision made on 16 May 2005, the Secretary of State notified the appellant of the material immigration decision revoking her residence permit and refusing her admission to the United Kingdom. This deprived the appellant of any lawful basis for remaining in the United Kingdom and the Secretary of State required her to leave by giving directions that she be removed to Nigeria. In the Notice of Immigration Decision — Refusal of Admission under European Community Law, the appellant's removal was proposed in accordance with Regulation 21 (3) and 26 of the Immigration (European Economic Area) Regulations 2000 as amended. This was an appealable decision under section 82 (1) of the Nationality, Immigration and Asylum Act 2002. The appellant appealed.
At a hearing before the Tribunal on 21 April 2005, Senior Immigration Judge Storey found that there was a material error of law for the following reasons:
“1. At paragraph 5 the Immigration Judge wrote: ‘I told the parties that I would not consider the interview transcript or the report dated 17 May 2005 in so far as it was a source of facts.’ The aforementioned report was the only source of evidence before her stating that the appellant's spouse was imprisoned. However, at paragraph 17 and 18 she gave as her reasons for dismissing the appeal the fact that the appellant's husband, being a detainee, could not be a ‘qualified person’ under the Immigration (EEA) Regulations 2000. This contradictory approach to the evidence and to the issue of whether it was right to exclude such evidence (even though going on to rely on it) amounts to a material error of law.
2. I agree with the parties that I am not in a position to deal with the second-stage reconsideration at this stage, as it is clearly relevant for there to be evidence presented and considered as to (1) the relationship between the appellant and her husband, and (2) his economic activities in the United Kingdom, prior to being imprisoned and whilst in prison.”
At the material time, the rights of the appellant were determined by the Immigration (European Economic Area) Regulations 2000. These were replaced by the Immigration (European Economic Area) Regulations 2006 (S.I. 2006 No. 1003) which came into force on 30 April 2006. Under paragraph 5 of Schedule 4 (Transitional Provisions) to the 2006 Regulations, where an appeal against an EEA decision under the 2000 Regulations is pending immediately before 30 April 2006, the appeal is to be treated as a pending appeal under the corresponding EEA decision under the 2006 Regulations. This appeal falls to be determined under the 2006 Regulations. See MG and VC (EEA Regulations 2006; “conducive” deportation) Ireland [2006] UKAIT 00053 in which the Tribunal stated:
“15. We need only add that the previous statutory regime, contained in the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326 as amended) is for present purposes entirely revoked with no savings or transitional provisions.
16. The first thing that is apparent is that the new Regulations came into force immediately on 30 April 2006, and that the previous law is no longer in effect. The effect on existing decisions and appeals is quite remarkable: they are to be treated as decisions and appeals under the new Regulations. The consequence may be that a decision lawful when it was made, and a determination by the Tribunal containing no error of law when it was made, may now disclose an error of law because of the retrospective change of the decision and its authority.
17. Those considerations apply directly in relation to decisions under the previous Regulations and appeals against EEA decisions under those Regulations.”
At the commencement of the hearing before us, Mr D'Silva, who appeared on behalf of the Secretary of State, conceded that there was no issue in relation to the first of the matters identified by the Senior Immigration Judge, namely, the state of the relationship between the appellant and her husband. For the purposes of both the 2000 and the 2006 Regulations, a spouse is defined in Part 1 as not including “a party to a marriage of convenience”. Whilst there was a considerable volume of material directed towards this issue before us, as a result of the concession made by Mr D'Silva, we approach this appeal on the basis that this was not a marriage of convenience.
Whilst it is not now necessary to consider the Immigration Judge's determination in any detail, she found that the appellant's husband was not a qualified person because the appellant had provided no evidence on the issue other than the fact that her husband was then in prison. She found as a fact that a detainee is not capable of falling within the definition of a qualified worker. There was no evidence that he was registered with an unemployment office. In paragraph 19 of her determination, she said:
“I find that Mr R is not a qualified person because he is imprisoned and there is no evidence before me that he is engaged in an economic activity, or ever was, other than paragraph 3 of the statement of Mr R which simply states that he was employed.”
She dismissed the appellant's associated claim under Article The Immigration Judge was not satisfied that the evidence provided by the appellant was sufficient to establish that it would be disproportionate to require the appellant to leave the United Kingdom, notwithstanding the presence of her husband in prison.
In a statement provided by the appellant on 11 July 2005, prior to the hearing, the appellant stated that she met her husband in July 2002 and the relationship started in the following month. They started living together in early 2003 and were married on 18 December 2003. On 12 February 2004, the Home Office provided the appellant with the right to reside in United Kingdom on the basis that she was married to a qualified person exercising treaty rights. Some 9 months later, on 4 October 2004, Mr R was arrested at Gatwick Airport for the offence for which he was subsequently sentenced to imprisonment on 9 March 2005. Bearing in mind the nature of the offence, the Immigration Judge considered it likely that Mr R remained in custody after his arrest. Accordingly, whatever work Mr R was doing prior to his arrest, it ceased on 4 October 2004. Evidence from the prison authorities reveals that his release date is 4 June 2009 although, were he to be successful for parole, he might be released as early as 4 April 2008.
The 2006 Regulations define a qualified worker and the rights that attach to a qualified worker and his spouse:
6. (1) In these Regulations, “qualified person” means a person who is an EEA national and in the United Kingdom as–
(b) a worker;
(2) A person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if–
(a) he is temporarily unable to work as the result of an illness or accident;
(b) he is in duly recorded involuntary unemployment after having been employed in the United Kingdom, provided that he has registered as a jobseeker with the relevant employment office and–
(i) he was employed for one year or more before becoming unemployed;
(ii) he has been unemployed for no more than six months; or
(iii) he can provide evidence that he is seeking employment in the United Kingdom and has a genuine chance of being engaged;
(c) he is involuntarily unemployed and has embarked on vocational training; or
(d) he has voluntarily ceased working and embarked on vocational training that is related to his previous employment.
14. (1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.
(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a...
To continue reading
Request your trial
-
Re Begum (EEA: Worker: Jobseeker: Pakistan)
...whether the appellant was a ‘worker’? 5 In settling the first ground, the appellant refers to two reported decisions, OA (Prisoner – Not a qualified worker) Nigeria [2006] UKAIT 00066 and RP (EEA Regs – worker – cessation) Italy [2006] UKAIT 00025, which discuss Community law about who is......
-
OA (Prisoner-not a qualified worker) Nigeria
...van JustitieECAS (Case 344/75); [1989] ECR 1621 Kempf v Staatssecretaris van JustitieECAS (Case 139/85); [1986] ECR 1741 [2006] UKAIT 00066 Asylum and Immigration Tribunal Jordan SIJ and Goldstein SIJ OA (Prisoner—Not a Qualified Worker) Nigeria Representation Mr M O'Connor instructed by C......
-
Upper Tribunal (Immigration and asylum chamber), 2006-08-01, [2006] UKAIT 66 (OA (Prisoner, Not a qualified worker))
...serif; so-language: ar-SA; font-weight: normal } ASYLUM AND IMMIGRATION TRIBUNAL OA (Prisoner – not a qualified worker) Nigeria [2006] UKAIT 00066 THE IMMIGRATION ACTS Heard at: Field House On 21 July 2006 Determination Promulgated On 1 August 2006 Before: Senior Immigration Judge Jordan Se......
-
Upper Tribunal (Immigration and asylum chamber), 2011-06-23, [2011] UKUT 275 (IAC) (Begum (EEA - worker - jobseeker))
...‘worker’? In settling the first ground, the appellant refers to two reported decisions, OA (Prisoner – Not a qualified worker) Nigeria [2006] UKAIT 00066 and RP (EEA Regs – worker – cessation) Italy [2006] UKAIT 00025, which discuss Community law about who is a worker. They are a starting p......