De Brito & Anor v Secretary of State for the Home Department

This is an appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 2 February 2011. It raises questions as to the qualification of a national of the European Economic Area (“EEA”), who is a ‘worker’ within the meaning of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”), for the right to permanent residence in the United Kingdom (“UK”) under regulation 15(1)(c).

The first appellant Mr Aurelio de Brito (born 12 July 1955) is a Portuguese national, formerly resident in India, who entered the UK on 24 January 2004. Mr de Brito was joined by his wife Lizette, the second appellant, and their son, Godfrey, on 21 July 2004. Between 5 March 2004 and 29 July 2005 Mr de Brito worked as a production worker assigned by a recruitment agency in Leicester called A la Carte Recruitment Ltd. Mr de Brito stopped work on 11 February 2005 suffering a painful and ulcerated leg and received sick pay from his employer until 29 July 2005 when his employment was terminated on the grounds of his ill health. Between 2 August 2005 and 4 April 2006, on which date he was awarded incapacity benefit, Mr de Brito was issued with sick notes by his general practitioner, Dr Patel. Mr de Brito qualified for incapacity benefit by reason of chronic osteomyelitis, first diagnosed in November 2005. A surgical procedure on 15 February 2006 failed to improve Mr de Brito’s health and he has never returned to work.

On 1 April 2009 Mr Aurelio de Brito made an application to the UK Border Agency for a permanent residence card under regulation 18 of the Regulations. On the same date applications for permanent residence cards were also made by Lizette and Godfrey as family members. All three applications were refused.

It is common ground that the three applications depended upon the evidence supporting the application of Mr de Brito senior. In its refusal letter of 15 December 2009 the Agency wrote:

“In order to qualify as a person who has terminated their activity in the United Kingdom as a worker or self-employed person as a result of a permanent incapacity to work, evidence must be submitted to demonstrate that she/he resides in the United Kingdom continuously for more than two years prior to the termination, such as P60s, wage slips, etc.; or that the incapacity is as a result of an accident at work or an occupational disease that entitles him/her to a pension payable in full or in part by an institution in the United Kingdom.

Although requested on 17 November 2009, you have failed to provide evidence to demonstrate that you have exercised Treaty rights in the United Kingdom for two years prior to becoming incapacitated or evidence in the form of a consultant’s letter/medical report confirming that your incapacity is permanent. You have therefore failed to provide evidence that you are a qualified person.

Therefore, it has been decided to refuse to issue the confirmation you seek with reference to Regulation 15(1)(c) of the Immigration (EEA) Regulations 2006.” [emphasis added]

Appeals against refusal were considered by Immigration Judge (“IJ”) Napthine on 9 March 2010 and by a determination promulgated on 23 March 2010 all three appeals were allowed.

Permission to appeal was granted to the Secretary of State on 16 April 2010 and the appeal was heard in the Upper Tribunal (“UT”) on 9 December 2010 by Senior Immigration Judge (“SIJ”) Hanson. SIJ Hanson concluded that Mr de Brito had failed to establish the relevant residence qualification under the Regulations, which was fatal to all three applications, and the appeals were allowed. The appellants were given limited permission to appeal to this court by Carnwath LJ (as he then was). Godfrey de Brito has since withdrawn his appeal.

It is common ground that Mr Aurelio de Brito has lived in the UK since 24 January 2004. It follows that by the time of his application to UK Border Agency on 1 April 2009 he had been residing in the UK for a period just in excess of 5 years. For reasons which will appear the success of his application for permanent residence status depended not upon 5 years residence but upon the question whether his period of residence between 29 July 2005 and 24 January 2006 qualified for the purposes of regulation 15(1)(c) of the Regulations. If it did not, he was not entitled to permanent residence.

The right of permanent residence in a host Member State is created by Directive 2004/38/EC of the European Parliament and of the Council, dated 29 April 2004, “On the right of citizens of the European Union and their family members to move and reside freely within the territory of the Member States”. The Directive amended and repealed several previous versions commencing in 1964. By Article (“Art”) 6 citizens of a Member State of the European Union (“Union citizens”) have the right of residence in another Member State for a period of up to 3 months; no restrictions may be placed on that right save as to production of a valid identity card or passport. By Art 7.1(a) Union citizens have the right of residence in another Member State for a period longer than 3 months if they are “workers”, and by Art 7.2 that right of residence extends to family members who join them. It is not in dispute that Mr de Brito’s employment through A la Carte Recruitment Ltd rendered him a “worker” for the purposes of Art 39 of the Treaty establishing the European Community (now Article 45 TFEU) and, accordingly, for the purposes of the Directive and the Regulations. He was therefore entitled to reside in the UK for a period in excess of 3 months. A Union citizen who is not working will, nevertheless, by Art. 7.3(a) retain the status of “worker” when, among other circumstances, he “is temporarily unable to work as a result of an illness or accident”.

Under Chapter IV “Rights of Permanent Residence”, Section 1 “Eligibility”, Art 16 provides:

“General rule for Union citizens and their family members

1.

Union citizens who have resided legally for a continuous period of five years in the host Member State shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III.

2.

Paragraph 2 shall apply also to family members who are not nationals of a Member State and have legally resided with the Union citizen in the host Member State for a continuous period of five years.

3.

Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another Member State or a third country.

4.

Once acquired, the right of permanent residence shall be lost only through absence from the host Member State for a period exceeding two consecutive years.” [emphasis added]

Art. 17 provides for alternative means of acquisition of the right to permanent residence. Art 17.1 provides:

“Exemptions for persons no longer working in the host Member State and their family members

1.

By way of derogation from Article 16, the right of permanent residence in the host Member State shall be enjoyed before completion of a continuous period of five years of residence by:

a)

Workers, or self-employed persons who, at the time they stop working, have reached the age laid down by the law of that Member State for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that Member State for at least the preceding twelve months and have resided there continuously for more than three years.

If the law of the host Member State does not grant the right of an old age pension to certain categories of self-employed persons, the age condition shall be deemed to have been met once the person concerned has reached the age of 60;

b)

Workers or self-employed persons who have resided continuously in the host Member State for more than two years and stop working there as a result of permanent incapacity to work;

If such incapacity is the result of an accident at work or an occupational disease entitling the person concerned to a benefit payable in full or in part by an institution in the host Member State, no condition shall be imposed as to length of residence;

c)

Workers or self-employed persons who, after three years of continuous employment and residence in the host Member State, work in an employed or self-employed capacity in another Member State, while retaining their place of residence in the host Member State, to which they return, as a rule, each day or at least once a week.

For the purposes of entitlement to the rights referred to in points (a) and (b), periods of employment spent in the Member State in which the person concerned is working shall be regarded as having been spent in the host Member State.

Periods of involuntary unemployment duly recorded by the relevant employment office, periods not worked for reasons not of the person’s own making and absences from work or cessation of work due to illness or accident shall be regarded as periods of employment.” [emphasis added]

In performance of the UK’s obligations under the Directive the Secretary of State made the 2006 Regulations pursuant to the power given by section 109 Nationality, Immigration and Asylum Act 2002.

The Articles of the Directive to which I have just referred were transposed into domestic law as follows: Art. 17.1(b) is reflected in regulations 5 and 15(1)(c). Regulation 5 in its material parts provides:

“Worker or self-employed person who has ceased activity.

5 (1) In these Regulations, “worker or self-employed person who has ceased activity” means an EEA national who satisfies the conditions in paragraph (2), (3), (4) or (5).

.......

5 (3) A person satisfies the conditions in this paragraph if -

(a)

he terminates his activity in the United Kingdom as a worker or self-employed person as a result of a permanent incapacity to work; and

(b)

either:

(i)

he resides in the United Kingdom continuously for more than two years prior to the termination; or

(ii)

the incapacity is the result of an accident at work or an occupational disease that entitles him to a pension payable in full or in part by an institution in the United Kingdom.

…….

5 (7) Subject to regulation 7A, for the purpose of this regulation –

(a)

periods of inactivity for reasons not of the person’s own making;

(b)

periods of inactivity due to illness or accident; and

(c)

in the case of a worker, periods of involuntary unemployment duly recorded by the relevant employment office,

shall be treated as periods of activity as a worker or self-employed person, as the case may be.” [emphasis added]

Regulation 6 provides the saving given by the concluding words of Art. 7.3(a). In its material parts regulation 6 reads:

“Qualified persons

6 (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.”

.... [emphasis added]

Permanent rights of residence for which provision is made in Art 16 and Art 17 of the Directive are conferred by regulation 15 which reads, as is relevant to the present context, as follows:

“Permanent right of residence

15 (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...”

As we have seen a “worker or self-employed person who has ceased activity”, for the purposes of the present appeal, has the meaning assigned by regulation 5(3) at paragraph 12 above.

The appellants’ case has changed since the grounds were argued before Carnwath LJ. Mr de Brito at first sought recognition of a right of permanent residence through the 5 year residence qualification given by regulation 15(1)(a). It is now conceded that the Directive was accurately incorporated into domestic law by regulations 15, 5 and 6, and it is no longer contended that Mr de Brito qualified for permanent residence under regulation 15(1)(a). As to the latter claim, Mr de Brito had, by 23 January 2009, resided in the UK for a continuous period of 5 years, but his own case is that he became permanently incapacitated for work on 4 April 2006. For that reason he could not take advantage of the saving provided by regulation 6(2)(a). He was not, therefore, even on his case, residing, for the purposes of regulation 15(1)(a), as a qualified person under the Regulations after 4 April 2006. This appeal, it is now submitted, turns upon the proper interpretation and application of regulation 15(1)(c) and regulation 5(1), (3) and (7).

Mr Manjit Gill QC’s argument for the appellants proceeds as follows:

(1)

IJ Napthine properly concluded that between 29 July 2005 and 4 April 2006 Mr de Brito remained temporarily and not permanently incapable of work.

(2)

Mr de Brito satisfied the qualification for permanent residence provided by regulation 15(1)(c) because:

(a)

he terminated his activity as a worker in the United Kingdom on or about 4 April 2006 “as a result of a permanent incapacity to work”; and

(b)

he had “for more than two years prior to the termination” resided as a ‘worker’ in the United Kingdom.

(3)

On the facts of the present case, the issue as to whether Mr de Brito was temporarily or permanently incapable of work, should be decided as at 24 January 2006, the second anniversary of Mr de Brito’s residence in the United Kingdom. If, on 24 January 2006, Mr de Brito was out of work as a result of a temporary unfitness for work he nevertheless continued to be a qualified person by reason of the application of regulation 6(2)(a) and regulation 5(7). Mr de Brito qualified for permanent residence because he terminated his ‘activity’ as a result of his “permanent incapacity to work”, within the meaning of regulation 5(3), on 4 April 2006, at which date he had more than two years qualifying residence in the UK.

(4)

The issue at (3) above was not to be resolved purely objectively. The purpose of the Directive is to facilitate the free movement of workers between Member States. That purpose would be frustrated by a purely objective assessment given with the wisdom of hindsight. The question to be addressed is whether the worker himself reasonably believed that his absence from work during the critical period 29 July 2005 to 4 April 2006 was the result of temporary incapacity for work.

(5)

The UT failed to address the correct question. It asked only whether it turned out that the incapacity was permanent. Having answered that question positively it wrongly concluded that on 29 July 2005 Mr de Brito terminated his activity as a result of a permanent incapacity for work; accordingly, that he had not resided continuously in the United Kingdom for more than two years before the termination of his activity as a worker.

(6)

This court should re-instate the decision of IJ Napthine; alternatively, remit the matter to the UT for a rehearing in the light of the court’s judgment; alternatively, if the meaning of Art 17.1 and regulation 5(3) is unclear, refer the issue to the European Court for decision.

Mr Kieron Beal QC, for the Secretary of State, responded that the recitals to the Directive reveal the twin purposes of encouraging cross border integration of workers within the EEA (recital (1): “...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”), and the discouragement of welfare tourism (recital (16: “As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host Member State...”). The meaning and purpose of Art 17.1 and regulation 5(1), (3) and (7), Mr Beal submits, are clear. The decision maker must first ask whether it is established, the burden being upon the appellant, that the worker “terminated” (in the sense that he ceased) his activity as a worker as a result of permanent incapacity to work. That activity terminated on 29 July 2005, the date when Mr de Brito’s employment with A la Carte Recruitment Ltd came to an end. The issue whether it was terminated “as a result of a permanent incapacity to work” is a purely objective one to be resolved upon all the evidence available to the decision maker. In assessing whether the appellant had resided in the UK as a qualified person (i.e. a “worker”), temporary periods off work due to illness were nevertheless to be counted (regulation 6(2)(a) and regulation 5(7)). It was submitted that Mr de Brito did not become a qualifying ‘worker’ until 5 March 2004. The appellant was required to establish that he had resided as a qualifying worker for two years before the termination of his activity as a worker on 29 July 2005. The UT correctly concluded that the findings of fact made by IJ Napthine were defective for absence of proper reasons and correctly resolved to treat the appeal as a rehearing upon all questions of fact. The UT was entitled to conclude that on 29 July 2005 Mr de Brito terminated his activity as a worker as a result of his permanent incapacity. It followed that the requisite period of residence for two years before that date was not established.

I propose, first, to examine the evidence before IJ Napthine and the Upper Tribunal upon the issue of termination of Mr de Brito’s activity as a worker and the reason for it.

In his first witness statement on 15 February 2010 Mr de Brito said:

“(3)

I confirm that I came to the United Kingdom on 24 January 2004 and was allowed leave to remain until 15 April 2009. I am a Portuguese national.

(4)

When I arrived in the UK I immediately started working as a production operative through an employment agency called A La Carte. After approximately 16 months of working I was diagnosed with bone disease in my leg which seriously affected my mobility. I had to cease employment. I did not make an application under Regulation 15 (1) (c) of the Rules but under Regulation 15 (1) (a). I confirm that I have resided in the UK continuously for the past 5 years and shall bring to the Court a copy of the letter from my GP confirming the dates I have attended the surgery in the past 5 years and my bank statements for the past 5 years by way of confirmation that I have resided in the UK. I have only left the UK twice during this period for two short holidays in India. I shall bring my original passport to the Court for examination.”

In his second witness statement of 3 March 2010, Mr de Brito said:

“(3)

I confirm that whilst I was employed by A la Carte, I began to suffer severe pain in my left lower leg. The pain was so intense I could no longer work. My GP provided me with a sick note from my GP from 2 August 2005 to July 2006 and I continued to receive statutory sick pay. I was diagnosed with chronic osteomyelitis in November 2005 and I had an operation on my leg on 12 February 2006 and it was not successful.

(4)

I was unable to return to work as my leg had deteriorated. On 4 April 2006, I was awarded incapacity benefit. I attach at page 1 of my Exhibit, a copy of my GP’s letter confirming this information.

(5)

I confirm that had I recovered from my illness I would have returned to work, however due to my incapacity I am unable to work.

(8)

Both my wife and I have had serious medical problems. This is the reason for us both having to terminate our respective employment.”

The letter from Dr Patel to which Mr de Brito was referring at paragraph 4 of his second witness statement was dated 18 February 2010. It reads as follows:

“Mr Aurelio Francisco Antonio De Brito dob 12.07.1955

The above named patient developed a discharging ulcer on his left lower leg over five years ago. It was associated with pain in the left lower leg. In November 2005 he was diagnosed with chronic osteomyelitis of the left lower leg. This was the reason for his discharging ulcer. On 15.02.06 he had an operation on this leg, but the surgeon was unable to eliminate the osteomyelitis. He was issued sick notes from 02.08.05 to July 2006. On 04.04.06 he was awarded Incapacity Benefit, and so did not need further sickness certificates. He continues with pain in the left lower leg and intermittent discharge from the chronic osteomyelitis.” [emphasis added]

In his written application to UK Border Agency on form EEA3 (Permanent Residence), at Part 3.1, Mr de Brito marked the box “Permanent Incapacity” and added “AUG/05 TO DATE”. This seems to amount to a concession that Mr de Brito had ceased employment due to permanent incapacity at the end of July 2005. This does not appear to be a concession on which either the IJ or the UT relied and, in my view, they were right, if they were aware of it, to attach no importance to it. The form of the questionnaire was such that there was no invitation to distinguish between temporary and permanent incapacity for work and it would have been unfair to draw any inference adverse to Mr de Brito in the absence of any opportunity to provide an explanation. None was sought by the representatives of the Secretary of State since no cross examination was conducted at either hearing.

Mr de Brito also produced a handwritten letter from Dr Patel dated 20 March 2009 addressed “To Whom It May Concern”. It read:

“The above named was certified off sick from 01.07.05 [sic] till July 2006 with chronic osteomyelitis left lower leg. Since 04.04.06 he has been on Incapacity Benefit.”

Mr de Brito provided a copy of his P45 certificate declaring his salary to date from A la Carte Recruitment Ltd. It gave as his “leaving date” 29 July 2005. In his application for statutory sick pay Mr de Brito said that he had last worked on 10 February 2005. No evidence was produced in support of a claim that Mr de Brito became permanently incapable of work on any date after 10 February 2005. In particular, there was no evidence adduced to establish that the date of first receipt of incapacity benefit (4 April 2006) signified the commencement of a permanent incapacity for work.

I turn to the decision made by the IJ promulgated on 23 March 2010. It will be recalled that in his first witness statement Mr de Brito complained that he had applied for permanent residence under regulation 15(1)(a) but he thought that his application had been refused under regulation 15(1)(c). In her Determination at paragraph 7 IJ Napthine purported to set out the relevant law. However, she referred only to regulation 15(1)(a) and (b) and not to regulation 15(1)(c). (As I have said at paragraph 14 above, it now conceded that the claim under regulation 15(1)(a) could not succeed). There was no description or analysis of the evidence. Having recorded the bare facts of the claim and the terms of the UK Border Agency’s refusal, the IJ proceeded immediately to her findings as follows:

“11.

I have given careful consideration to all the documents and evidence before me.

12.

The Respondents’ representative did not ask any questions of the Appellants when they gave their evidence. They adopted their witness statements in their entirety.

13.

On behalf of the Appellants, Mr Ahmed submitted that in defining a “worker” as a “Qualified person” it is clear in Paragraph 6(2)

“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.”

14.

On a balance of probabilities I find that the First Appellant was temporarily unable to work due to illness. By the time his condition had been assessed as permanent incapacity, he had been present exercising treaty rights as a “worker” for well over two years and therefore he was a “qualified person”.

15.

On a balance of probabilities I find that the First Appellant has resided in the UK for a continuous period of over five years and as such is entitled to a Permanent Residence Card.

16.

The Second and Third Appellants have lawfully resided in the UK for a period of 5 years as family members and as such are entitled to Permanent Resident Cards.

17.

On the totality of the evidence before me, I find that the Appellants have discharged the burden of proof and the reasons given by the Respondent do not justify the refusals. Therefore the Respondent’s decisions are not in accordance with the law and applicable Immigration Rules.”

The IJ referred at paragraph 14 of her Determination to an assessment of Mr de Brito’s permanent incapacity. There was no evidence that any such assessment took place. Mr Gill QC conceded that proof of permanent incapacity for work is not required for eligibility to receive incapacity benefit. Indeed, recipients of the benefit are entitled to work within the limitations imposed by the statutory scheme. None of the documents generated by Mr de Brito’s successful application for incapacity benefit were produced, presumably because they were not material or were inconclusive. The IJ offered no other reason for concluding that Mr de Brito’s absence after 29 July 2005 was due to a temporary inability to work, did not identify the date upon which she concluded Mr de Brito became permanently unable to work, and did not identify the evidence upon which such a conclusion could be reached. The IJ did not identify the reason why she considered that a two year period of residence was relevant to the question whether Mr de Brito was a “qualified person” for the purpose of regulation 15(1)(a), which required 5 years residence, or by what process of reasoning she reached the conclusion that because, on those grounds, Mr de Brito was a “qualified person” his five years residence entitled him to a permanent residence card.

Permission to appeal to the UT was granted by SIJ Ward in the following terms:

“1.

The grounds argue that the judge erred in finding that the lead appellant was “temporarily incapable of work”. It is submitted that the lead appellant had suffered from a chronic condition, that of osteomyelitis since July 2005.

2.

It is arguable that the judge’s finding was perverse and/or that she misdirected herself regarding the meaning of “temporarily unable to work” in the 2006 EEA Regulations.

3.

The determination suffers from very brief and unclear reasoning. It is far from clear on what basis the appellant succeeded. The Immigration Judge also appears to have failed to address the reasons for refusal in any adequate way or explain why she found that a medical condition which started in 2005 and has continued since then could be regarded as one which rendered the lead appellant “temporarily available to work.”

At paragraph 30 of his Determination SIJ Hanson gave the following reasons for his decision to set aside the determination of IJ Napthine without preserved findings:

“30.

Having considered the submissions and the evidence I find that Immigration Judge Napthine did make a material error of law in failing to give adequate reasons to support his finding that Mr de Brito was able to satisfy the definition of a worker to be found in Regulation 6(2) of the 2006 Regulations and in failing to make adequate findings relating to whether Mr de Brito’s medical condition rendered him temporarily or permanently unavailable to work.”

Mr Gill QC argued that SIJ Hanson was wrong to conclude that IJ Napthine made no adequate findings. She made specific findings (1) that Mr de Brito had been temporarily off work due to illness by the time his work activity ceased on the grounds of permanent incapacity and (2) that he had by that time been resident in the UK for at least two years. I agree that those findings were made but they were undoubtedly inadequately reasoned. In my judgment, SIJ Hanson was correct to re-assess the evidence in order to reach his own findings of fact.

I would not, without further argument, accept Mr Beal’s argument that Mr de Brito’s qualifying period for residence commenced on his first day of employment, 5 March 2004, rather than his date of entry, 24 January 2004. The decisions in the Tribunals seem to have proceeded upon the assumption that Mr de Brito could establish qualifying residence as from 24 January 2004, presumably because he was lawfully residing in the UK (Art 6) or because he was a jobseeker (regulation 6(1)(a)). We have not received full argument on the subject and I would be reluctant to regard this issue as determinative. It was not disputed that Mr de Brito had ceased to work on 29 July 2005. The issue was whether that was the result of temporary or of permanent incapacity. The burden was upon the appellant to establish that at any time after 29 July 2005 his absence from work was due to temporary incapacity (regulations 6(2)(a) and 5(7)).

A similar issue was considered by the President of the UT, Blake J, sitting with SIJ Deans, in Secretary of State for the Home Department v FB [2010] UKUT 447 (IAC). In that case the issue was whether a four year period off work due to illness could be described as temporary, as found by the First Tier Tribunal (“FTT”). At paragraph 10 of its determination the UT described the interaction of Regulations 6(2)(a), 5(3) and 15(1)(c) as follows:

“10.

The immigration judge noted in the EEA Regulations the distinction between a worker who is temporarily unable to work as a result of illness or accident, and remains a worker under reg 6(2)(a), and a worker who has ceased activity because of permanent incapacity to work in terms of reg 5(3)(a). While a worker who is temporarily unable to work remains a qualified person under reg 6, a person who terminates his activity as a worker as a result of permanent incapacity to work is not a qualified person under reg 6 but may be a worker who has ceased activity under reg 5(3) provided the conditions therein are satisfied. If those conditions are satisfied, then the worker who has ceased activity will acquire a permanent right of residence under reg 15(1)(c).”

I agree and, with respect, adopt this analysis. As to the meaning of the terms “temporary” and “permanent”, the UT continued at paragraph 23:

“23.

For our part we consider that there is considerable merit in the argument advanced on behalf of the claimant as to the meaning of the words “temporary” and “permanent”, in the sense that if a person’s inability or incapacity is not permanent, then it should be regarded as temporary. The definition of “permanent” in Collins English Dictionary (1991) is given as ″1. Existing or intending to exist for an indefinite period″ and ″2. Not expected to change for an indefinite time; not temporary″. The definition of “temporary” is given as ″1. Not permanent; provisional″ and then ″2. Lasting only a short time; transitory″. These definitions give strong support for the argument that a state of affairs which is not permanent is temporary although, reflecting Mr Gulvin’s submission, temporary is also regarded as lasting only a short time. We note that reg 5(3)(a) refers to “permanent incapacity to work” while reg 6(2) refers to a person who is “temporarily unable to work” but we do not consider that in this appeal anything material hinges on any distinction between being incapable of work or unable to work.”

The UT, when making the observation that a state of affairs which is not permanent is temporary, used the present tense which might signify an intention to examine the issue of permanence without regard to subsequent events. It is clear, however, that this was not an issue which the UT was then addressing. The UT did indeed examine all relevant events before reaching its conclusion that the IJ had made no error of law. The UT used the present tense merely to describe, for the purpose of definition, a present state of affairs.

I accept that a purposive construction should be given to the Directive and the Regulations. As I have noted above the appellant accepts that the UK’s obligations under the Directive have been accurately transposed by the Regulations into domestic law. In my judgment, the meaning to be given to regulations 5, 6 and 15 is clear. The phrase “terminates his activity in the United Kingdom as a worker” in its regulation 5(3)(a) context does not require a subjective decision by the worker to terminate his employment on the grounds of permanent incapacity. It contemplates a state of affairs in which his activity as a worker has ceased “as a result of a permanent incapacity to work”. I accept that the worker’s understanding of his own situation may be relevant to the objective decision whether his absence from work was temporary or amounted to a termination as a result of permanent incapacity. However, the ultimate decision is an objective one. The issue cannot, it seems to me, be determined solely by reference to the worker’s belief or intention, reasonable or unreasonable. Both Art 17(1)(b) and regulation 5(3)(a) use the words “as a result of”, rather than “by reason of” or “because of”, “permanent incapacity to work”. It seems to me that this choice of words reveals the draftsmen’s intention. The determining factor was to be not the worker’s statement of his intention and reasons but the objective state of affairs which existed at the relevant times. I accept Mr Gill QC’s submission that on the facts of the present case the relevant time is 29 July 2005 onwards.

The UT identified the legal issue for decision at paragraph 48 of its determination:

“48.

This is of course a question of fact and not a question of law and a matter of which the Tribunal may in appropriate cases be assisted by medical evidence. The question the Tribunal needs to consider is whether based on all the available evidence relating to Mr de Brito’s health there were realistic prospects of his being able to return to work and therefore remaining engaged with the labour market. This is an important issue as a person whose inability to work as a result of illness or accident is not permanent is only temporarily unable to work and can therefore remain a qualified person.”

In my judgment, this was an accurate statement of the legal test and Mr Gill QC, despite his plea for a partially subjective test, did not seek to criticise it. As Mr Beal QC conceded, it does not automatically follow that because the worker remained permanently off work he had terminated work activity as a result of a permanent incapacity for work. It may be that a new cause for absence intervened. A temporary absence caused by an illness may be followed, without any return to work, by the development of a more serious condition which causes permanent incapacity. During the first period of absence the incapacity is temporary; during the second period of absence the incapacity is permanent. The reverse situation may also arise. A worker may be permanently incapacitated for work unless corrective surgery or other curative treatment for which he is waiting is successful. The prospect of success may be bleak or it may be virtually certain depending on the condition and the treatment. In SSHD v FB, for example, the worker was awaiting a new prescription for drugs. The FTT held that during this period off work the incapacity was temporary, a decision which the UT determined revealed no error of law. As SIJ Hanson stated at paragraph 48 of the present determination, the decision maker may require medical evidence in order to resolve the issue of permanence. Each case must be decided upon the evidence available. Here, the natural inference from the diagnosis of chronic osteomyelitis in November 2005 was that Mr de Brito was permanently unfit for work. I note also that the view of the UK Border Agency, expressed in its letter of refusal, was that medical evidence on the issue of permanence was required and the Agency gave the appellant the opportunity to submit it. Mr de Brito was informed on 17 November 2009 of the need for such evidence but none was forthcoming.

SIJ Hanson reached the following conclusion of fact:

“49.

The burden is upon Mr de Brito to prove that his condition means he is only temporarily unavailable to work. In this appeal it is clear that Mr de Brito became ill and was unable to work. His first medical note is dated the 1^st July 2005 but he only ceased to be a potential employee for the recruitment agency on 29^th July 2005. It is clear that from July 2005 Mr de Brito was unable to engage with the labour market and since that date has been unable to work as a result of his illness. He has not shown on the evidence that his condition could be classified as being temporary as it has in fact proved to be permanent.”

Mr Gill QC criticises the final sentence of paragraph 49 since it implies that the judge may have applied a different test from that which he had identified in paragraph 48. In other words, he may have regarded the fact that Mr de Brito remained continuously out of work after 29 July 2005 as conclusive of the issue whether Mr de Brito terminated his activity on that date as a result of a permanent incapacity for work. It would be surprising if, having posed the correct test, the judge then applied a different one. I do not consider that he did. He was, in the final sentence of paragraph 49, referring to the effect of the evidence upon the test correctly posed in paragraph 48. He found that the appellant had failed to establish that there was, at any time after 29 July 2005, a realistic prospect of a return to work, as later events demonstrated. In my view, this conclusion is supported by the evidence which I have outlined above. Mr de Brito stopped work in February 2005 because he was suffering intense pain associated with a discharging ulcer caused by osteomyelitis, diagnosed in November 2005 as chronic osteomyelitis. It was resistant to treatment and even surgery in February 2006 failed to bring about any improvement. No medical evidence was tendered by Mr de Brito to demonstrate that between 29 July 2005 and 15 February 2006 he was temporarily, and not permanently, incapacitated because, until 15 February 2006, medical treatment and surgery had provided a realistic prospect of a return to work. In paragraph 49 the judge was not expressing a different legal test but making a finding that Mr de Brito had failed to discharge the burden of proving his case.

I do not consider that the UT erred in law. The finding made was justifiable on the evidence and I would dismiss the appeal.

I agree.

I also agree.