OP v The Secretary of State for the Home Department

The Appellant is a citizen of Colombia who was born on 29 September 1966. He arrived in the United Kingdom on 12 August 1992 and was granted leave to enter for six months as a visitor. On 3 June 1992 he married a Portuguese national who was resident in the United Kingdom exercising her Treaty rights. Following the marriage, the Appellant was granted (what was then) a family permit as the family member of an EEA national exercising Treaty rights in the United Kingdom, valid until 22 October 1997. That family permit was subsequently renewed until 28 September 2003.

On 22 August 2003, the Appellant was convicted of indecent assault on a female and gross indecency with a child at the Horseferry Road Magistrates Court. On 23 September 2003 he was sentenced at the Middlesex Guildford Crown Court to a total of two years imprisonment and ordered to sign the Sex Offenders Register for ten years. Subsequently, the Appellant was released from prison on (surprisingly) according to his evidence on 31 June 2004.

On 4 October 2007, the Respondent made a decision to deport the Appellant on the basis that his deportation was conducive to the public good under section 3(5)(a) of the Immigration Act 1971. The Appellant appealed and in his “Statement of Additional Evidence” relied on the fact that he was married to an EEA national and claimed that he had a permanent right of residence in the UK. On 11 January 2008, the Respondent issued a supplementary reasons for refusal letter rejecting the Appellant’s reliance upon any rights derived from EU law. The Appellant’s appeal was dismissed by a panel of the Tribunal (Immigration Judge Chana and Dr J O de Baros) in a determination promulgated on 4 February 2008. The panel concluded that the Appellant had failed to establish that he had a permanent right of residence under regulation 15 of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) and thus could not rely upon the more limited basis for removing him which would otherwise have been applicable under regulation 19(3) read with regulation 21. The panel went on to dismiss the appeal concluding that his removal would not breach Article 8 and the discretion to deport the Appellant had been correctly exercised under Paragraph 364 of the Immigration Rules (HC 395).

On 22 February 2008, Senior Immigration Judge Waumsley ordered reconsideration. The sole basis upon which reconsideration was sought and was ordered was that the Panel had erred in law in concluding that the Appellant had not established a permanent right of residence and thus had failed to consider the merits of the Appellant’s deportation appeal on the basis of the more limited ground for removal in Regulations 19(3) and 21 of the 2006 Regulations.

We begin with the relevant provisions of the EEA Regulations 2006. Regulation 15(1) provides for certain individuals to have “permanent right of residence” and, so far as relevant, provides as follows:

“15(1) The following persons shall acquire the right to reside in the United Kingdom permanently - ….

(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; …”

Regulation 15(2) makes it clear that once acquired, a right of permanent residence will “be only lost through the absence from the United Kingdom for a period exceeding two consecutive years”. Regulation 15(3) states that “this regulation is subject to Regulation 19(3)(b)”. That is a reference to the basis upon which a person with a permanent right of residence may be removed on ‘public policy, public security or public health’ grounds.

Regulation 21 provides for the circumstances in which a decision may be taken on the grounds of public policy, public security or public health. In particular, in this appeal, Regulation 21(3) is relevant. It provides that:

“A relevant decision may not be taken in respect of a person with a permanent right of residence under Regulation 15 except on serious grounds of public policy or public security. “

The final provision that we must set out is paragraph 6(1) of Schedule 4 to the 2006 Regulations which is in the following terms:

“Periods of Residence Under the 2000 Regulations

6(1) Any period during which a person carried out an activity or was resident in the United Kingdom in accordance with the 2000 Regulations shall be treated as a period during which the person carried out that activity or was resident in the United Kingdom in accordance with these Regulations for the purpose of calculating periods of activity and residence under these Regulations.”

Mr Bobb, who represented the Appellant before us, submitted that on 30 April 2006 when the EEA Regulations 2006 came into force, the Appellant acquired a permanent right of residence under regulation 15(1)(b) of those Regulations on the basis that the Appellant had resided with his wife (the EEA national) in the United Kingdom in accordance with the 2006 Regulations for a continuous period of five years. Mr Bobb accepted that the Appellant and his wife had not lived together since the Appellant went to prison on 22 August 2003. Mr Bobb accepted that the Appellant’s marriage had broken down thereafter. Indeed, we were told that the Appellant and his wife are in the process of being divorced. However, Mr Bobb submitted that taking a period of five years back from that date the Appellant had lived with his wife, she was a qualified person being a worker and as a result the Appellant had the requisite continuous period of five years required by regulation 15(1)(b) of the 2006 Regulations.

Mr Bobb submitted that periods of residence in accordance with the predecessor EEA provisions to the 2006 Regulations, namely the Immigration (European Economic Area) Order 1994 (SI 1994/1895) which came into force on 20 July 1994 and the Immigration (European Economic Area) Regulations 2000 (SI 2000/362) which replaced it with effect from 2 October 2000, also counted for this purpose. Mr Bobb pointed out that the Appellant had valid family permits from 26 October 1992 which expired in 2003.

Mr Bobb relied upon the Tribunal’s decisions in MG and VC (EEA Regulations 2006; “conductive” deportation) Ireland [2006] UKAIT 00053, especially paras [16]-[21] and NB and JN (Right of Permanent Residence) France [2007] UKAIT 00039.

Ms Ong, who represented the Respondent, submitted that regulation 15 did not apply to the Appellant. First, she submitted that he could not acquire a permanent right of residence on the date regulation 15 came into force based upon residence in accordance with the EEA Regulations which had ceased prior to that date. She pointed out that the Appellant had not resided with his wife since 2003 and, therefore, he could not suddenly acquire a permanent right of residence based upon five years continuous residence with her when that had ceased some three years before regulation 15 came into force. Secondly, in any event, Ms Ong submitted that only periods of relevant residence under the 2006 Regulations or, by virtue of Schedule 4, paragraph 6(1) to the 2006 Regulations, periods of residence under the 2000 EEA Regulations could count towards the five years required under regulation 15(1)(b). She submitted that the deeming provision in Schedule 4, paragraph 6(1) which allowed periods of residence under the 2000 Regulations to count as if they were periods of residence under the 2006 Regulations excluded from consideration any periods of residence under the earlier 1994 EEA Order. There was no error of law in the panel’s decision.

The right of EEA nationals and their family members to be admitted to and reside in the United Kingdom when an EEA national is exercising Treaty rights has existed since the UK’s accession to the Treaty of Rome on 1 January 1973. Those rights were reflected in both the 1994 and 2000 EEA Regulations and are currently given effect to in the 2006 Regulations. However, the 2006 Regulations, transposing the right found in the Art 16 of Citizens Directive (Directive 2004/38/EC), creates for the first time a “permanent right of residence” for EEA nationals and their family members in certain circumstances. Thus, there can be no question that an EEA national or a relevant family member could acquire a permanent right of residence prior to 30 April 2006 when the 2006 Regulations came into force.

We did not understand Mr Bobb to assert the seemingly impossible, namely that the Appellant acquired a right of permanent residence no later than 22 August 2003. Rather, we understood Mr Bobb to submit that the Appellant’s right arose on 30 April 2006 as a consequence of the (then) historic period of residence with his wife in accordance with the relevant Regulations for a continuous period of five years running back from 22 August 2003. We reject that submission. We see no basis upon which the Appellant could acquire a right on 30 April 2006 in such circumstances. It seems to us clear that regulation 15 is intended to recognise the “permanent right of residence” of individuals who ‘clock up’ the relevant five years continuous residence on or after the date it came into effect. It is not intended, in our view, to reflect the acquisition of a right of permanent residence based upon a merely historic period of relevant residence in the United Kingdom. We are not aware of any provision in the Citizen’s Directive itself which supports Mr Bobb’s contention. Indeed, the wording of Recital (17) suggests otherwise:

“A permanent right of residence should therefore be laid down for all Union citizens and their family members who have resided in the host Member State in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an exclusion measure.” (our emphasis)

Of course, the 2006 Regulations go further, as we shall see, in that Schedule 4, paragraph 6(1) allows a period of residence in accordance with the 2000 Regulations also to count towards the 5 years continuous residence. But that, in our view, provides no support for a purely historic period of residence in accordance with those Regulations that has ceased before 30 April 2006.

If Mr Bobb were correct in his submissions, it would in our view create the potential for reliance upon EEA free movement rights where there could be no justification for recognising them. Take for example a person who resided in the UK with his EEA spouse for a period of five years prior to 30 April 2006: however, before that date the marriage broke down the individual left the UK and the parties divorced. Sometime after April 2006, that individual claims a right to be admitted and reside in the UK on the basis that he acquired a permanent right of residence on 30 April 2006 in reliance on his earlier residence with his (now) former spouse in the UK. Nothing in these circumstances tugs in the direction of recognising an EU free movement right to the spouse including one that gives a permanent right of residence in the UK. The parties are no longer married and it is impossible to see how the EU national’s right of free movement would be affected by not recognising the former ‘family member’s’ right of admission and residence. Indeed, there would be no necessity for the EU national to even be in the UK for the ‘family member’ to assert his own permanent right of residence.

In this case it is not suggested that the Appellant has had any EU basis for remaining in the UK since 2003. We can see no foundation for saying that some three years later the effect of regulation 15 was that on the morning of 30 April 2006 he awoke with a permanent right to reside in the UK. Ex nihilo nihil fit. No community law notion, that a Union Citizen’s right of free movement will be “seriously obstructed” (see Metock, Case C-127/08 at [62]) if the (former) family member’s permanent right of residence is not recognised, can possibly be engaged in this case. Equally, where the EU basis for that individual’s right to reside in the UK has disappeared before 30 April 2006, there is no rational basis for asserting that the earlier period of residence warrants the recognition of a permanent right on 30 April 2006 in order to promote Union Citizenship and “social cohesion” (see Recital (17) of the Directive).

Mr Bobb relied upon the Tribunal’s decision in NB and JN (Right of Permanent Residence) France [2007] UKAIT 00039 which he submitted established that a right of permanent residence could be derived from a five year period accruing prior to the 2006 Regulations coming into force. With respect, we do not think the case should be so read. In that case, the Tribunal considered whether an EU citizen had acquired a permanent right of residence on the basis of five years continuous residence in the UK as a qualified person. It transpired at the reconsideration hearing that the Appellant had a valid residence permit between 11 November 2000 and 8 November 2005. In reliance upon that, it was argued on behalf of the Appellant that regulation 15 applied. For unrelated reasons, the Tribunal held that the original decision dismissing the Appellant’s appeal could not stand on the basis that there was a material error of law. Apparently relying on the period of the residence permit (which curiously seems to have not been quite 5 years in duration), the Tribunal substituted a decision allowing the appeal, inter alia, on the basis that the first Appellant had a right of permanent residence under regulation 15.

On the face of it, NB and JN provides some support for Mr Bobb’s contention about the retrospective application of regulation 15. However, it is clear that the Tribunal did not have the benefit of full argument on this issue. The Tribunal specifically records at paragraph [55] that the Appellant’s representative did not develop his argument in respect of regulation 15 in any detail. It does not seem to have been suggested before the Tribunal that regulation 15 could not have the effect contended for in this appeal. In fact, the Tribunal’s decision merely, in our view, assumes uncritically that regulation 15 can apply in this way. The Tribunal’s own words are somewhat tentative in paragraph [59] that

“we are also prepared to accept that the Appellant appears to meet the requirements of regulation 15….”

We have had full argument on the issue and, for the reasons we have given, we do not consider that regulation 15 has the effect contended for by Mr Bobb and nothing in the reasoning in NB and JN forces us to reconsider that conclusion.

In any event, there is in our view an even clearer reason why Mr Bobb’s submissions cannot succeed on the facts of this appeal. It is accepted that the Appellant must rely upon a period of residence in the UK with his wife not only under the 2000 Regulations but also under the 1994 Order. It seems to us that Ms Ong is correct in her submission relying upon paragraph 6(1) of Schedule 4 to the 2006 Regulations. Regulation 15(1)(b) requires a continuous period of five years’ residence by a family member with the EEA national “in accordance with these Regulations”. Without more, this phraseology would restrict any residence period to that in accordance with the 2006 Regulations themselves. The effect of paragraph 6(1) of Schedule 4 is to deem a period of residence in accordance with the 2000 Regulations to be residence under the 2006 Regulations.

There is an important point that arises on the difference in wording in the 2006 Regulations between regulation 15 and Schedule 2, paragraph 6(1). The former, mirroring the wording in Art 16.2 of the Directive, requires the family member to be both resident in the UK “in accordance” with the 2006 Regulations and that that residence be “with the EEA national”. Schedule 2, paragraph 6(1) only deems residence in accordance with the 2000 Regulations to be residence “in accordance with the 2006 Regulations”. It does not deem it to be residence “with the EEA national”. That, it would seem, must be established on the evidence in addition to lawful residence under the 2000 Regulations. An EEA national’s family member could be lawfully resident under the 2000 Regulations, and indeed under the 2006 Regulations, whilst in the UK even if he is not living with the EEA national, for example, his spouse (see regulation 14(2), 2000 Regulations). Under the 2000 Regulations, the relationship alone, or in other cases the relationship plus dependency upon the EEA national, sufficed to make the individual a “family member” and confer a right of admission and residence. (The same is true under the 2006 Regulations: see regulations 11 (admission), 13 (initial right of residence) and 14 (extended right of residence).) None of this affects the outcome of this appeal. Any residence that the Appellant can establish under the 2000 Regulations was, in fact, whilst he was living with his spouse. However, for the reasons we shall see shortly, that residence fell short of the required 5 years’ duration.

Subject to that point, a family member may accumulate continuous periods of residence falling either side of 30 April 2006 together so as to acquire the necessary five years’ residence with the EEA national and that residence will be “in accordance with the [2006] Regulations”. As Ms Ong pointed out to us, the 2006 Regulations make no reference to residence under the earlier 1994 Order counting towards residence in accordance with the 2006 Regulations. That omission is, in our view, telling of the intention of the draftsman of the 2006 Regulations. Of course, the absence of such a deeming provision in respect of the 1994 Order is entirely explicable given the view we have taken that regulation 15 can only bite when a family member has established the relevant five years residence on or after 30 April 2006. Any period of residence under the 1994 Order would, necessarily, fall outside a five year period dating back from 30 April 2006. Thus, no provision for taking into account residence in accordance with the 1994 Order was necessary. Such periods would simply be irrelevant to the calculation of the five year period in, for example, regulation 15.

Mr Bobb referred us to the High Court decision in Kungwengwe [2005] EWHC 1427 (Admin) in which Mr Bobb said the Judge treated documents issued pursuant to the 1994 Order as if they had been issued under the 2000 Regulations. Unfortunately, Mr Bobb failed to provided us with, or refer us specifically to any part of, the judgment in that case. We have nevertheless obtained a copy of the decision after the hearing and it suffices for us to say we did not find the case of any assistance in resolving the point for which it was relied upon by Mr Bobb. The point in that case was whether an individual could rely upon a period of residence as the family member of any EEA national in establishing the requisite period of continuous lawful residence under the long residency provisions of the Immigration Rules. Those Rules, on the face of it, appeared not to include such periods of residence as they are not periods where the individual has leave to enter or remain (see paragraph 276A(b)). Wilkie J agreed in dismissing the appellant’s application for judicial review but he noted that it was the Secretary of State’s policy to take such periods into account.

From the judgment, it appears that the applicant had been issued with a five year residence document on 7 October 1999. Throughout his judgment, Wilkie J dealt with the case on the basis that the relevant applicable provisions were the 2000 Regulations and that the Appellant’s residence was in accordance with those Regulations. Of course, the 2000 Regulations did not come into force until 2 October 2000 and thus the Applicant’s residence document must have been issued under the earlier 1994 Order and the Applicant’s residence for the first year of the period of that residence document was prior to the 2000 Regulations coming into force on 2 October 2000. However, the basis of the Applicant’s residence – whether under the 1994 Order or 2000 Regulations – was irrelevant in that case. All that was relied upon by the applicant was that their residence in the UK was lawful in pursuance of their EEA right as a family member. In our judgement, in reality the case takes Mr Bobb’s point no further. Wilkie J was not concerned with a specific provision, as are we, in the 2006 Regulations which expressly ties the family member’s residence in the UK to residence in accordance with the 2006 EEA Regulations (and by a deeming provision the 2000 Regulations).

Mr Bobb also placed some reliance upon passages in the Tribunal’s decision in MG and VC, especially paras[16]-[21]. That case was, in fact, concerned with the effect of the transitional provisions in Schedule 4 to appeals heard after 30 April 2006 which were either pending on that date or related to decisions made under the 2000 Regulations. That these earlier documents and subsequent appeals must be dealt with as if the 2006 Regulations were always in force does not, in any way, cast light on the distinct issues in this appeal. The transitional provisions necessarily needed to deal with pending appeals and post-30 April 2006 appeals against earlier decisions made under the 2000 Regulations because the 2006 Regulations repealed the 2000 Regulations and re-categorised the EEA documentation that would have been the subject of any original decisions. The case provides no support either for recognising a permanent right of residence based upon a period of residence in accordance with the 2000 Regulations which has ceased by 30 April 2006, or for treating periods of residence under the 1994 Order as if that were residence “in accordance with the [2006] Regulations”.

Consequently, in seeking to bring himself within regulation 15(1)(b) and establish a continuous period of five years residence in the UK with his spouse “in accordance with these Regulations”, the Appellant may only rely upon residence in accordance with the 2000 and 2006 Regulations. That residence is limited to a period between 2 October 2000 and 22 August 2003. On any calculation, that is less than five years.

For these reasons, we are satisfied that the panel’s decision does not disclose any material error of law. The decision to dismiss the appeal stands.