TM (EEA Nationals – Meaning; NI Practitioners) Zimbabwe
| Jurisdiction | UK Non-devolved |
| Judge | Rintoul,Rintoul UTJ |
| Judgment Date | 14 March 2017 |
| Neutral Citation | [2017] UKUT 165 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 14 March 2017 |
[2017] UKUT 165 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Rintoul
(Anonymity Order Made)
For the Appellant: Ms F Connolly, Counsel
For the Respondent: Mr S Whitwell, Presenting Officer (7 November 2016)
Ms M O'Brien, Presenting Officer (23 February 2017)
TM (EEA nationals — meaning; NI practitioners) Zimbabwe
-
1. Schedule 1, paragraph 1 (d) of the Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547) amended the definition of EEA national to exclude those who are also British Citizens, but that change was subject to the transitional provisions set out in Schedule 3 of those regulations. Similar provisions were added to the Immigration (European Economic Area) Regulations 2016 by the Immigration (European Economic Area) (Amendment) Regulations 2017 (SI 2017/1) which amended schedule 6 of the 2016 Regulations by adding a new paragraph 9.
-
2. Although the reg 1 (2) of the 2016 regulations revoked the Immigration (European Economic Area) Regulations 2006, they are preserved for the purposes of appeals, as are the rights of appeal by an amendment to Schedule 4 of the new EEA Regulations made by the Immigration (European Economic Area) (Amendment) Regulations 2017 (SI 2017/1).
-
3. While the representatives regulated by OISC and members of the Bar of Northern Ireland are both entitled under section 84 of the Immigration and Asylum Act 1999 to provide immigration services, section 11 of the Code of Conduct of the Bar of Northern Ireland precludes barristers from taking instructions from persons other than lawyers who are governed by a professional body (which does not include OISC).
The appellant appeals with permission against the decision of First-tier Tribunal Judge S T Fox, dismissing his appeal under the Immigration (European Area) Regulations 2006 (“the 2006 EEA Regulations”) against a decision made by the respondent on 6 February 2015 to refuse to issue him with a residence card as confirmation of his permanent right of residence as the spouse of an EEA citizen.
The appellant is a citizen of Zimbabwe. He is married to CM who holds dual Irish and British citizenship. It is his case that she was exercising Treaty rights as an EEA national, from February 2009 until September 2014, and that as he had been married to her during the whole of that period, he was entitled to a residence card pursuant to reg. 15 of the 2006 EEA Regulations.
Although the respondent accepted that CM had been exercising Treaty rights between February 2009 and February 2013 and again from November 2013 until present, she was not satisfied that she had been exercising Treaty rights between those dates, and thus there was a break of continuity of residence. The respondent noted that although it had been said that this period had been due to unpaid maternity leave, no evidence to that effect had been provided, nor was there sufficient evidence to show that she had the relevant sickness insurance policy to demonstrate that she was self-sufficient during this period.
On appeal, Judge Fox found:
-
(i) Following McCarthy v SSHD [2012] EUECJ C-434/09, as CM had not exercised Treaty Rights, she could not at any point be said to be exercising Treaty Rights, and so the appeal fell to be dismissed in any event [17];
-
(ii) Even were the appellant to have shown McCarthy did not apply, there was insufficient evidence to show that CM was self-sufficient, or that she had been in receipt of Employment and Support Allowance and/or Disability Living Allowance, despite claiming that she had been unable to work owing to being ill [14], [19] – [20].
The appellant sought permission to appeal to the Upper Tribunal on the grounds that Judge Fox had erred:
-
(i) In failing to take account of the transitional provisions in the Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547) (“the 2012 Regulations”), the effect of which was that the appellant fell to be treated as the family member of an EEA national, the decision in McCarthy notwithstanding;
-
(ii) In misapplying reg.6 (2) of the 2006 EEA Regulations in holding that in order to show CM was ill or unable to work, she needed to show that had been in receipt of either Employment and Support Allowance (“ESA”) or Disability Living Allowance (“DLA”); and, had failed to explain why he had rejected the evidence of Ms M's GP.
As at the date of decision, and the hearing on 7 November 2016, the relevant regulations were the 2006 EEA Regulations. Although Schedule 1, paragraph 1 (d) of the Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547) amended the definition of EEA national to exclude those who are also British Citizens, (subsequent to the ECJ handing down judgment in McCarthy), that change was subject to the transitional provisions set out in Schedule 3 which provided, so far as is relevant:
Amendments to the definition of EEA national
2.—(1) Where the right of a family member (“F”) to be admitted to, or reside in, the United Kingdom pursuant to the 2006 Regulations depends on the fact that a person (“P”) is an EEA national, P will, notwithstanding the effect of paragraph 1(d) of Schedule 1 to these Regulations, continue to be regarded as an EEA national for the purpose of the 2006 Regulations where the criteria in subparagraphs (2), ( 3) or (4) are met and for as long as they remain satisfied in accordance with subparagraph (5).
(2) …
(3) The criteria in this subparagraph are met where F-
(a) was on the 16th July 2012 a person with a right to reside in the United Kingdom under the 2006 Regulations; and
(b) on the 16th October 2012-
(i) held a valid registration certificate or residence card issued under the 2006 Regulations;
(ii) had made an application under the 2006 Regulations for a registration certificate or residence card which had not been determined; or
(iii) had made an application under the 2006 Regulations for a registration certificate or residence card which had been refused and in respect of which an appeal under regulation 26 could be brought while the appellant is in the United...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2022-04-25, HU/01586/2020 & Ors.
...previous appeals notwithstanding their revocation by the Immigration (EEA) Regulations 2016 (“the 2016 Regulations”): TM (Zimbabwe) [2017] UKUT 165 (IAC). I should nevertheless note that the 2016 Regulations came generally into force on 1 February 2017. The definitions of ‘family member’ an......
-
Upper Tribunal (Immigration and asylum chamber), 2022-04-25, [2022] UKUT 00278 (IAC) (Ali & Ors (EU Law equivalence, §276B, s3C))
...previous appeals notwithstanding their revocation by the Immigration (EEA) Regulations 2016 (“the 2016 Regulations”): TM (Zimbabwe) [2017] UKUT 165 (IAC). I should nevertheless note that the 2016 Regulations came generally into force on 1 February 2017. The definitions of ‘family member’ an......
-
Upper Tribunal (Immigration and asylum chamber), 2017-03-14, [2017] UKUT 165 (IAC) (TM (EEA nationals – meaning; NI practitioners))
..."Times New Roman", serif } Upper Tribunal (Immigration and Asylum Chamber) TM (EEA nationals – meaning; NI practitioners) Zimbabwe [2017] UKUT 00165 (IAC) THE IMMIGRATION ACTS Heard at Belfast Decision & Reasons Promulgated On 7 November 2016 And 23 February 2017 ………………………………… Before UPPER ......
-
Upper Tribunal (Immigration and asylum chamber), 2017-10-31, IA/00442/2012
...Regulations does not apply” The background to those changes is set out in TM (EEA nationals - meaning; NI practitioners) Zimbabwe [2017] UKUT 165 (IAC) and I do not therefore need to deal with this point in any more 73. I can also deal very shortly with the level of protection against depor......