ZA (R 9. EEA Regs; Abuse of Rights) Afghanistan

JurisdictionUK Non-devolved
CourtUpper Tribunal (Immigration and Asylum Chamber)
JudgeRintoul
Judgment Date31 Jul 2019
Neutral Citation[2019] UKUT 281 (IAC)

[2019] UKUT 281 (IAC)

UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

Rintoul UTJ

ZA (Reg 9. EEA Regs; Abuse of Rights) Afghanistan
Representation

Mr M Alison and Ms G Kiai instructed by Rahman & Co Solicitors, for the Claimant;

Mr I Jarvis and Ms A Holmes, Senior Home Office Presenting Officers, for the Secretary of State.

Cases referred to:

AA (Nigeria) v Secretary of State for the Home Department [2017] CSIH 38; [2018] Imm AR 1

British Gas Trading Limited v Lock and Secretary of State for Business, Innovation and Skills [2016] EWCA Civ 983; [2017] 4 All ER 291; [2017] 1 CMLR 25

Cadbury-Schweppes v Commissioners of Inland Revenue (Case C-196/04); [2006] ECR I-7995; [2006] 3 WLR 890; [2007] All ER (EC) 153; [2007] 1 CMLR 2

Di Paolo v Office National de I'Emploi (Case C-76/76); [1977] ECR 315; [1977] 2 SMLR 59

Emsland-Stärke GmbH v Hauptzollamt Hamburg-Jonas (Case C-1 10/99)

Ghandan v Godin-Mendoza [2004] UKHL 30; [2004] 2 AC 557; [2004] 3 WLR 13; [2004] 3 All ER 411

Knoch v Bundesanstalt für Arbeit (Case C-102/91); [1992] ECR I-4341

Levin v Staatssecretaris van Justitie (Case C-53/81); [1982] ECR 1035; [1982] 2 CMLR 454

M v M [2007] EWHC 2047 (Fam)

Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C-106/89); [1990] ECR I-4135; [1992] 1 CMLR 305

O v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie; Integratie en Asiel v B (Case C-456/12); [2014] QB 1163; [2014] 3 WLR 799; [2014] 3 CMLR 17; [2014] All ER (EC) 843; [2014] Imm AR 828; [2014] INLR 748

R v Immigration Appeal Tribunal and Surinder Singh ex parte Secretary of State for the Home Department (Case C-370/90); [1992] ECR I-4265; [1992] 3 All ER 798; [1992] 3 CMLR 358; [1992] Imm AR 565

R (on the application of Gureckis) v Secretary of State for the Home Department [2017] EWHC 3298 (Admin); [2018] 4 WLR 9; [2018] 2 CMLR 26; [2018] Imm AR 613

Robertson v Swift [2014] UKSC 50; [2014] 1 WLR 3438; [2014] 4 All ER 869; [2015] 1 CMLR 15

Rosa v Secretary of State for the Home Department [2016] EWCA Civ 14; [2016] 1 WLR 1206; [2016] 2 CMLR 15; [2016] Imm AR 402; [2016] INLR 514

S v Minister voor Immigratie, Integratie en Asiel and Minister voor Immigratie, Integratie en Asiel v G (Case C-457/12); [2014] QB 1207; [2014] 3 WLR 843; [2014] 3 CMLR 18; [2014] All ER (EC) 843; [2014] Imm AR 843; [2014] INLR 816

Sadovska v Secretary of State for the Home Department [2017] UKSC 54; [2017] 1 WLR 2926; [2018] 1 All ER 757; [2018] 1 CMLR 37; [2017] Imm AR 1473; [2017] INLR 944

Secretary of State for the Home Department v Akrich (Case C-109/01); [2003] ECR I-9607; [2004] QB 756; [2004] 2 WLR 871; [2003] 3 CMLR 26; [2004] All ER (EC) 687; [2004] INLR 36

Secretary of State for the Home Department v Banger (Case C-89/17); [2019] 1 WLR 845; [2019] 1 CMLR 6; [2018] Imm AR 1205; [2018] INLR 628

Swaddling v Adjudication Officer (Case C-90/97); [1999] ECR I-1075; [1999] 2 CMLR 679; [1999] All ER (EC) 217

Vodafone 2 v Commissioners for Her Majesty's Revenue and Customs [2009] EWCA Civ 446; [2010] 2 WLR 288

Legislation and international instruments judicially considered:

Directive 2004/38/EC (“the Citizens Directive”), Articles 3(2), 8 & 35

Immigration Act 1971, section 3(5)(a)

Immigration (European Economic Area) Regulations 2016, regulations 9 & 44; section 1 of Schedule 2; Schedule 5 & section 4 of Schedule 6

European Union law — family members — free movement — genuine exercise of Treaty rights — qualitative assessment — regulation 9 of the 2016 Regulations — centre of life test — abuse of rights — burden of proof on Secretary of State

The Claimant, a citizen of Afghanistan, married her husband, a British citizen, in Pakistan in 2003. Her applications for entry clearance as a spouse in 2006 and 2008 were refused. In May 2015, the Claimant's husband decided to move to Ireland to exercise his free movement rights under the EU treaties, with the intention of settling. He worked while there. He successfully applied for a family permit on behalf of the Claimant and she joined him in Ireland shortly thereafter. When his job came to an end in May 2016, the couple and their children returned to the United Kingdom. In June 2016, the Claimant applied for a residence permit as the family member of an EEA national. In February 2017, the Secretary of State for the Home Department refused the application under the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”), concluding that the couple's residence in Ireland was not genuine and that the purpose of the residence was a means of circumventing the United Kingdom's domestic immigration laws. The Claimant appealed against that decision.

The First-tier Tribunal (“FtT”) Judge dismissed the appeal in May 2018. The Judge did not accept that the family's residence in Ireland was genuine, noting that the period of residence in Ireland bore the hallmarks of having been staged or created in order to generate the conditions to benefit from a free movement right. He also found that the centre of the Claimant's life had not been transferred to Ireland.

Before the Upper Tribunal, the Claimant submitted that the FtT had erred in failing properly to apply the correct Regulations. She also submitted that the Judge had failed to take into account the fact that the motivation for exercising treaty rights was irrelevant. She further contended that the Judge had improperly considered motivation in assessing “genuine residence” and had, in effect, confused the issue of abuse of rights. In so doing he had imported the abuse of rights concept improperly into his consideration.

Held, substituting a fresh decision allowing the Claimant's appeal:

(1) The Claimant's application was made on 9 June 2016. On 25 November 2016, while the application was still under consideration, the 2016 Regulations came into force but only in respect of regulation 44 and Schedule 5 of the 2016 Regulations. The effect of that was to bring regulation 9 of the current 2016 Regulations into the 2006 Regulations. On 1 February 2017, regulation 44 and Schedule 5 of the 2016 Regulations were revoked. That had the effect of removing regulation 9 from the 2006 Regulations but paragraph 4(1) of Schedule 6 of the 2016 Regulations provided that applications outstanding at that date were to be considered in line with the 2016 Regulations. The decision in the instant case was made on 13 February 2017 and thus regulation 9 of the 2016 Regulations was the correct regulation, as the Judge properly noted (paras 12 – 13).

(2) Where an EU national of one state (“the home member state”) had 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 had a derivative right to enter the member state if the exercise of Treaty rights in the host state was genuine. “Genuine” must be interpreted in the sense that it was real, substantive, or effective. An analysis of “genuine” residence could not involve the consideration of the motives of the persons who moved except in the limited sense of what they intended to do in the host member state. Whether family life was established and/or strengthened required a qualitative assessment which would be fact-specific. The burden of doing so lay on the appellant. There must in fact have been an exercise of Treaty rights. Any work or self-employment must have been “genuine and effective” and not marginal or ancillary. The assessment of whether a stay in the host state was genuine did 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. There was 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 was no requirement to have severed ties with the home member state. Those factors might, however, to a limited degree, be relevant to the qualitative assessment of whether the exercise of Treaty rights was genuine. The requirement to have transferred the centre of one's life to the host member state was not a requirement of EU law, nor was it endorsed by the CJEU. If it was alleged that the stay in the host member state was such that regulation 9(4) applied, the burden was on the Secretary of State to show that there was an abuse of rights (para 75).

(3) Whilst evaluating the quality of the residence in Ireland and noting that it was for a period of around a year, the FtT Judge had erred in that he had conflated the issue of a qualitative nature of the residence with motivations to an extent which was not permissible. Those factors might well have been relevant to an assessment under regulation 9(4) but it was the Secretary of State who bore the burden of proof in respect of such an allegation. The decision of the FtT had involved the making of an error of law as the Judge had effectively interpreted regulations 9(3) and 9(4) in such a way as to reverse the burden of proof with regard to an abuse of rights (paras 76 – 79).

(4) In re-making the decision, it was noted that the couple resided in Ireland for a year in rented accommodation and did not maintain accommodation in the United Kingdom. Accordingly, the residence was genuine in the sense that what was intended was achieved, namely, the exercise of treaty rights whereby the Claimant's husband worked but that the couple then returned to the United Kingdom when he lost employment. Whilst there was significant evidence as documented by the FtT indicating that the motivation was to circumvent the immigration rules, it could not be considered when assessing whether the residence and exercise of treaty rights was in fact genuine in the proper sense. Thus regulation 9(3) of the 2016 Regulations had been met. The Secretary of State's conclusion in the refusal letter that the purpose of the stay in Ireland was to circumvent the...

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11 cases
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    • Upper Tribunal (Immigration and Asylum Chamber)
    • 31 December 2019
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