Weldemichael and Another (St Prix 120141 Euecj C-507112; Effect) v Upper Tribunal (Immigration and Asylum Chamber)

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeStorey,Reeds,Rintoul,Reeds UTJ,Storey UTJ,Rintoul UTJ
Judgment Date23 September 2015
Neutral Citation[2015] UKUT 540 (IAC)
Date23 September 2015

[2015] UKUT 540 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

UPPER TRIBUNAL JUDGE Storey

UPPER TRIBUNAL JUDGE Reeds

UPPER TRIBUNAL JUDGE Rintoul

Between
(1) Mizan Mahder Weldemichael
(2) George Odijie Obulor
Appellants
and
The Secretary of State for the Home Department
Respondent
Aire Centre
Intervener
Representation:

For the First Appellant: Ms O Umoh-Abudu, Solicitor

For the Second Appellant: no appearance or representation

For the Intervener: Mr A Berry, Counsel, instructed by the AIRE Centre

For the Respondent: Ms J Smyth Counsel, instructed by the Treasury Solicitor

Weldemichael and another ( St Prix [2014] EUECJ C-507/12; effect)

An EEA national woman will retain continuity of residence for the purposes of the Immigration (European Economic Area) Regulations 2006 (the 2006 EEA Regulations) for a period in which she was absent from working or job-seeking owing to the physical constraints of the late stages of pregnancy and the aftermath of childbirth if, in line with the decision of the CJEU in Jessy St Prix:

  • (a) at the beginning of the relevant period she was either a worker or seeking employment;

  • (b) the relevant period commenced no more than 11 weeks before the expected date of confinement (absent cogent evidence to the contrary that the woman was physically constrained from working or seeking work);

  • (c) the relevant period did not extend beyond 52 weeks; and,

  • (d) she returned to work.

So long as these requirements are met, there will be no breach of the continuity of residence for the purposes of regulation 15. Time spent in the United Kingdom during such periods counts for the purposes of acquiring permanent residence.

DECISION AND REASONS
1

These appeals have been heard together as they raise similar issues regarding the interpretation and applicability of Jessy St Prix v DWP [2014] CJEU C-507/12 (hereafter St Prix). As the parties agreed, the appeals are concerned with the continuity of residence for the purposes of acquiring permanent residence under the immigration (European Economic Area) Regulations 2006 (“the EEA Regulations”), not entitlement to benefits. In both appeals, whether or not there has been lawful residence for the required continuous five year period turns (to a greater or lesser extent) on how time spent out of employment due to the relevant EU national's pregnancy is characterised.

2

We are aware that the Administrative Appeals Chamber of the Upper Tribunal has also been considering the impact of St Prix in appeals CIS/204/2013, CIS/1288/ 2012, CH/1312/2013 & CH/1440/2013.

The Appellants
3

Ms Weldemichael, the First Appellant, is a citizen of the Netherlands born on 15 December 1979 who entered the United Kingdom in February 2006. In June/July 2012 she applied to the respondent for a residence card as confirmation of her right of permanent residence. That application was refused 16 January 2013, and her appeal against that decision was dismissed by the First-tier Tribunal in a determination promulgated on 11 May 2013. Permission to appeal to the Upper Tribunal was granted on 10 July 2013.

4

Mr Obulor, the Second Appellant, is a citizen of Nigeria. On 4 November 2006 he married Ms Jurgita Pocuite, a citizen of Lithuania who has been resident in the United Kingdom since 5 May 2004. On 30 November 2012 he applied for a residence card as confirmation of his right of permanent residence. That application was refused on 15 April 2013, and his appeal against that decision was dismissed by the First-tier Tribunal in a determination promulgated on 25 October 2013. Permission to appeal to the Upper Tribunal was granted on 17 December 2013

5

Subsequent to the grants of permission, there have been a number of case management hearings, and directions issued. In addition, permission was granted to the AIRE centre to intervene. It was, however, only on the morning of the hearing that Mr Obulor let it be known that he would not be attending for personal reasons; he confirmed to Court staff that he was content for the matter to proceed in his absence. With our agreement, and without demur from Ms Smyth, he submitted additional material to which we refer below.

Preliminary Matter – withdrawal of the respondent's concession in Obulor
6

As a preliminary issue, Ms Smyth sought permission to withdraw a concession made before the First-tier Tribunal in Mr Obulor's appeal that Ms Jociute had been working/exercising Treaty Rights between 2004 and 2008, it being submitted that it was open to us to do so, there being no prejudice to the appellant.

7

In the circumstances of his non-attendance, we deferred consideration of that matter, and it is dealt with below.

Legislative framework
8

The EEA Regulations provided, as at the date of decision in these appeals and as far as is relevant, as follows:

6.—“Qualified person” 1

(1) In these Regulations, “qualified person” means 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.

(2) Subject to regulation 7A (4), 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.

(3) A person who is no longer in self-employment shall not cease to be treated as a self-employed person for the purpose of paragraph (1)(c) if he is temporarily unable to pursue his activity as a self-employed person as the result of an illness or accident.

(4) For the purpose of paragraph (1)(a), “jobseeker” means a person who enters the United Kingdom in order to seek employment and can provide evidence that he is seeking employment and has a genuine chance of being engaged.

15.—Permanent right of residence

(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) 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.

3.—Continuity of residence

(1) This regulation applies for the purpose of calculating periods of continuous residence in the United Kingdom under regulation 5(1) and regulation 15.

(2) Continuity of residence is not affected by—

(a) periods of absence from the United Kingdom which do not exceed six months in total in any year;

(b) periods of absence from the United Kingdom on military service; or

(c) any one absence from the United Kingdom not exceeding twelve months for an important reason such as pregnancy and childbirth, serious illness, study or vocational training or an overseas posting.

(3) But continuity of residence is broken if a person is removed from the United Kingdom under these Regulations

9

Given that it is argued that the EEA Regulations do not, in these cases (and more particularly in the light of St Prix reflect the provisions of European Law, we consider that these too must be set out.

10

The relevant provisions of European Union law are article 45 of the TFEU and the Directive 2004/38/EC (“the Citizenship Directive”). Article 45 enshrines the principle of freedom of movement for workers and requires ‘the abolition of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work and employment’. Neither article 45 TFEU nor the Citizenship Directive defines ‘worker’.

11

The recitals to the Citizenship Directive provide:

(1) Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.

(2) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty

(9) Union citizens should have the right of residence in the host Member State for a period not exceeding three months without being subject to any conditions or any formalities other than the requirement to hold a...

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