Upper Tribunal (Immigration and asylum chamber), 2019-07-31, [2019] UKUT 281 (IAC) (ZA (Reg 9. EEA Regs; abuse of rights))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Rintoul |
| Status | Reported |
| Date | 31 July 2019 |
| Published date | 17 September 2019 |
| Hearing Date | 22 May 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Reg 9. EEA Regs; abuse of rights |
| Appeal Number | [2019] UKUT 281 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 00281 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
|
On 14 November 2018 |
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And 22 May 2019 |
………………………………… |
Before
UPPER TRIBUNAL JUDGE RINTOUL
Between
Z A
(ANONYMITY DIRECTION MADE)
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr M Alison, instructed by Rahman & Co Solicitors (14/11/19)
Ms G Kiai, instructed by Rahman & Co, Solicitors (22/05/19)
For the Respondent: Mr I Jarvis, Senior Home Office Presenting Officer (14/11/19)
Ms A Holmes, Senior Home Office Presenting Officer (22/05/19)
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The requirement to have transferred the centre of one’s life to the host member state is not a requirement of EU law, nor is it endorsed by the CJEU.
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Where an EU national of one state (“the home member state”) has exercised the right of freedom of movement to take up work or self-employment in another EU state (“the host state”), his or her family members have a derivative right to enter the member state if the exercise of Treaty rights in the host state was ”genuine” in the sense that it was real, substantive, or effective. It is for an appellant to show that there had been a genuine exercise of Treaty rights.
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The question of whether family life was established and/or strengthened, and whether there has been a genuine exercise of Treaty rights requires a qualitative assessment which will be fact-specific and will need to bear in mind the following:
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Any work or self-employment must have been “genuine and effective” and not marginal or ancillary;
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The assessment of whether a stay in the host state was genuine does not involve an assessment of the intentions of the parties over and above a consideration of whether what they intended to do was in fact to exercise Treaty rights;
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There is no requirement for the EU national or his family to have integrated into the host member state, nor for the sole place of residence to be in the host state; there is no requirement to have severed ties with the home member state; albeit that these factors may, to a limited degree, be relevant to the qualitative assessment of whether the exercise of Treaty rights was genuine.
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If it is alleged that the stay in the host member state was such that reg. 9 (4) applies, the burden is on the Secretary of State to show that there was an abuse of rights.
DECISION AND REASONS
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The appellant appeals with permission against a decision of First-tier Tribunal Judge S H Smith, promulgated on 17 May 2018, dismissing her appeal against the decision of the respondent made on 13 February 2017 under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) to refuse her application for a residence card as the family member of an EEA national.
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The appellant is a citizen of Afghanistan. She and her husband, a British citizen, were married in Pakistan in 2003. Her applications for entry clearance as a spouse in 2006 and 2008 were refused.
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As stated by the First-tier Tribunal at [6] the appellant’s case is that her husband decided to leave the stress of London and move to Ireland to exercise his free movement rights he enjoyed under the EU Treaties, with the intention of settling in May 2015. He worked while there and learned from friends that it would be possible for him to apply for a visa for his wife to accompany him pursuant to EU law. He successfully applied for a family permit on behalf of the appellant and she joined him in Ireland shortly afterwards. His job came to an end in May 2016 and the couple, along with her children, returned to the United Kingdom at the end of the month. On return, the appellant applied for a residence permit.
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The respondent concluded from the information provided that the appellant and her husband’s residence in Ireland was not genuine and that the purpose of the residence in Ireland was as a means of circumventing the UK’s domestic Immigration Rules.
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On appeal the judge noted [24] that the central issue is whether the residence of the appellant and sponsor was “genuine”, the starting point for his analysis being that the motive for exercising free movement rights in another member state is not a determinative factor in assessing whether residence was genuine, following AA (Nigeria) v SSHD [2017] CSIH 38. The judge also directed himself [13] that the Secretary of State bore the burden of demonstrating that Regulation 9 (4) applied but that this arises only if the applicant has succeeded in establishing that the residence was genuine in the first place.
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The judge did not accept that the family’s residence in Ireland was genuine, noting that the picture that emerges from her evidence was a period of residence in Ireland which bears the hallmarks of having been staged or created in order to generate the conditions in order to benefit from a free movement right. He found that the centre of the appellant’s life had not been transferred to Ireland [32] and that while she and her husband lived in Ireland for a year, a weighty factor capable of potentially tipping the balance in favour of the conclusion that the residence was genuine, he was not satisfied the residence was genuine.
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The appellant sought permission to appeal on the grounds that the judge had erred:-
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in failing to take into account the fact that the motivation for exercising treaty rights was irrelevant, following Akrich [2003] EUECJ C-109/01;
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in failing properly to apply the correct Regulations, with the respondent purportedly applying the 2006 Regulations rather than the amendments brought in in 2013;
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in failing properly to apply AA (Nigeria).
The Law
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Schedule 6 of the 2016 Regulations provides at section 4, so far as is relevant:
4. (1) an application for –
…
(c) a residence card
…
Made but not determined before 1st February 2017 is to be treated as having been made under these regulations.
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Schedule 2 to the 2016 Regulations provides, so far as is relevant:
section 84 (grounds of appeal), as though the sole permitted ground of appeal were that the decision breaches the appellant's rights under the EU Treaties in respect of entry to or residence in the United Kingdom (“an EU ground of appeal”);
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The Immigration (European Economic Area) Regulations 2006 contained, as at the date of application, the same provision within schedule 1 to those Regulations.
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The core issue in this case is correct interpretation of Regulation 9 of the 2016 Regulations which (as at the date of decision) provide as follows:-
9.—(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“f”) of an British Citizen (“BC”) as though the BC were an EEA national
(2) The conditions are that—
(a) BC—
(i) is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom; or
(ii) has acquired the right of permanent residence in an EEA State;
(b) F and BC resided together in the EEA State; and
(c) F and BC’s residence in the EEA State was genuine.
(3) Factors relevant to whether residence in the EEA State is or was genuine include—
(a) whether the centre of BC’s life transferred to the EEA State;
(b) the length of F and BC’s joint residence in the EEA State;
(c) the nature and quality of the F and BC’s accommodation in the EEA State, and whether it is or was BC’s principal residence;
(d) the degree of F and BC’s integration in the EEA State;
(e) whether F’s first lawful residence in the EU with BC was in the EEA State.
(4) This regulation does not apply—
(a) where the...
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