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Upper Tribunal (Immigration and asylum chamber), 2011-02-11, [2011] UKUT 89 (IAC) (PM (EEA - spouse - "residing with"))

Judgment Cited authorities 7 Cited in Precedent Map Related
Vincent
JurisdictionUK Non-devolved
JudgeMr J Perkins, Dr HH Storey, Mr Justice Blake
StatusReported
Date11 February 2011
Published date07 March 2011
CourtUpper Tribunal (Immigration and Asylum Chamber)
Hearing Date21 December 2010
Subject MatterEEA - spouse - "residing with"
Appeal Number[2011] UKUT 89 (IAC)



Upper Tribunal

(Immigration and Asylum Chamber)


PM (EEA – spouse –“residing with”) Turkey [2011] UKUT 89 (IAC)


THE IMMIGRATION ACTS



Heard at Field House

Determination Promulgated

On 21 December 2010



…………………………………


Before


MR JUSTICE BLAKE, PRESIDENT

SENIOR IMMIGRATION JUDGE STOREY

SENIOR IMMIGRATION JUDGE PERKINS


Between


pm

Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT


Respondent


Representation:


For the Appellant: Mr A. Berry of Counsel instructed by Turpin Miller Solicitors

For the Respondent: Ms F. Saunders, Home Office Presenting Officer



Regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 applies to those who entered a genuine marriage where both parties have resided in the United Kingdom for five years since the marriage; the EEA national’s spouse has resided as the family member of a qualified person or otherwise in accordance with the Regulations and the marriage has not been dissolved. The “residing with” requirement relates to presence in the UK; it does not require living in a common family home.


DETERMINATION AND REASONS


Introduction


  1. This is an appeal from a decision of Immigration Judge (IJ) Harmston given on the 16 March 2010 upholding the respondent’s refusal of 16 January 2010 to issue the appellant with a permanent residence card under reg 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 SI 2006/1003 (“the Regulations”).


  1. The material facts can be taken from the decision of the IJ and may be summarised as follows:-


  1. the appellant is a Turkish national now 28 years old;


  1. she first came to the UK in September 2001 when she had entry clearance for two years as an au pair;


  1. a few months later she met PM, an Italian national exercising Treaty rights by working in the UK;


  1. the couple started cohabiting as man and wife in September 2003 by which time the appellant had secured an extension of her stay;


  1. on the 21 February 2004 the couple married and the appellant gave birth to their son Leo on 6 August 2004;


  1. in April 2004 the appellant was given a residence card as the spouse of an EEA national for a period of 5 years until 29 March 2009;


  1. in December 2007 PM left the matrimonial home and the couple have not cohabited since;


  1. they remain married to each other and in social contact with each other. PM visits his son twice a week and provides financial support in the sum of £50.


  1. In 2009 the appellant applied for permanent residence. This was refused on the basis that there was insufficient evidence that PM had worked for the requisite period and thus resided in the United Kingdom for five years in accordance with the Regulations. This issue of fact was decided in favour of the appellant by the IJ and is no longer in contention.


  1. The IJ nevertheless dismissed the appeal because he was not satisfied that the appellant had resided in the United Kingdom with PM for five years. Permission to appeal to the UT was granted by SIJ Nichols on 22 April and the appeal heard by SIJ Perkins on 3 September 2010.


  1. On 13 October 2010 he decided that the appeal should be heard by a panel of this chamber for consideration to be given to whether a reference needs to be made to the Court of Justice of the European Union (CJEU) as to the meaning of Article 16(2) of Directive 2004/38/EC (the Citizens Directive) that the Regulations endeavour to transpose into national law.


  1. We heard the appeal on 21 December 2010. Having heard from Ms Saunders in response to Mr Berry’s skeleton argument we indicated that:


  1. the IJ made a material error of law;


  1. we would set aside the decision and remake it on the basis of the factual findings reached below;


  1. we could decide this appeal without the need to make a reference to the CJEU since we could find the meaning of the legislative provisions in issue with complete confidence;


  1. the appeal was allowed and directions given that the appellant be issued with a permanent residence card;


  1. we would give our reasons in writing for this conclusion as soon as practicable.


The Regulations


  1. Regulation 15(1) provides as follows:


“ 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 -

  1. 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;


  1. a person who –


(i) has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and


(ii) was, at the end of that period, a family member who has retained the right of residence.”



  1. Regulation 15(1)(a) and (b) both refer to a person “who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years”. Regulation 15(1)(a) deals with EEA nationals while reg 15(1)(b) concerns a family member of an EEA national who is not herself an EEA national; in such a case the words “with the EEA national” are added after the United Kingdom.


  1. Before us the parties were agreed that the issue of construction is whether the words “resided in the United Kingdom with the EEA national” mean:


      1. The family member (in this case the spouse) and the EEA national must both reside in the United Kingdom for the requisite period, or


      1. The family member should be residing in a common family home with the EEA national in the United Kingdom for the requisite period.


  1. The IJ concluded that the second meaning was the correct one. In reaching this conclusion he considered that support for this conclusion could be found in the reported decision of the AIT in OA (EEA-retained right of residence) Nigeria [2010] UKAIT 00003 a judgment of SIJ Storey. The IJ was wrong about that. The decision was concerned with a retained right of residence under regulation 15(1)(f) and turned on the point that the EEA national in that case had not worked for the requisite period and thus could not show that he had resided in the United Kingdom in accordance with the Regulations. For the same reason the family member could not qualify under reg 15(1)(b) and at [22] the AIT stated it was not necessary to consider the precise meaning of the phrase “with the EEA national”.


  1. No other national case law was referred to by either side, and we are aware of none. We will first consider whether the meaning can be discerned from the language of the regulation itself and its relevant context, before considering Community legislation and case law.


The text of the Regulations


  1. As to the words used, we note first that the words “with the EEA national” come after “United Kingdom”. Putting the disputed words in parenthesis, the words appear to address attention to the question of whether the non–EEA national family member has resided in the United Kingdom as opposed to elsewhere.


“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;


  1. Second, that the regulation is concerned with any family member and not just spouses, and cannot therefore be construed as meaning “living together as husband or wife” or conjugal cohabitation. The range of family members within the ambit of reg 15(1)(b) includes children under 21 and dependent relatives in the ascending and descending line (see reg 7).


  1. Third, the legislator has not used words such as “resided as a member of the household in the United Kingdom” (contrast the provision for extended family members in reg 8).


  1. Each of these observations is a pointer to the first of the two possible meanings being the appropriate one.


The context of the words to be construed


  1. Turning to the context of the regulations, the scheme (reflecting the requirements of Community law) deals with initial residence, then extended rights of residence, next retained rights of residence and finally permanent rights of residence. Regulation 13(2) concerns the right of initial residence of a non-EEA family member of an EEA national. The position of such a family member is distinguished from that of EEA...

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