EN v The Secretary of State for the Home Department

This is an appeal against the decision of Immigration Judge Warner who dismissed the appellant’s appeal against the respondent’s decision made on 11 February 2010 refusing to issue him a permanent residence card as the family member of an EEA national under the provisions of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”).

The appellant is a citizen of Nigeria born on 9 February 1976.  He married his wife, a Swedish national, in the United Kingdom on 3 October 2003 and he was issued with a residence document on 13 May 2004 valid until 13 May 2009.  On 21 December 2008 he sought a permanent residence document but the application was refused for the following reasons:

“The evidence you have submitted is not enough to prove that you have resided in the United Kingdom for five continuous years.  Also evidence provided suggests that your EEA national sponsor has resided in Sweden for some periods and also has been paid in Swedish kronas.

You have failed to provide evidence that your EEA family member and yourself are qualified people.”

At the hearing before the Immigration Judge the appellant and his wife gave oral evidence and documentary evidence identified in paras 14 and 15 of the judge’s determination was produced primarily on the issue of where the appellant and his wife have been living.

The judge was satisfied that from the date of the marriage in October 2003 to November 2006 the appellant’s wife was working in the UK for the purposes of the 2006 Regulations but he found that since 2006 she had spent a substantial proportion of her time working in Sweden.  He was not satisfied applying the test in reg. 3(2)(a) that since 2006 she had not been absent from the UK for a period which did not exceed six months in total in any year and found that the continuity of her residence with the appellant in the UK had been broken.  This led him to conclude that the appellant had not been able to show that he had been residing in the United Kingdom with his wife in accordance with the 2006 Regulations for a continuous period of five years as required by reg. 15(1)(b).

However, the judge went on to say in para 30 of his determination that he was satisfied that the appellant’s wife had been working since 2006 not only in Sweden but also in the UK and was exercising treaty rights in the UK.  She was therefore a qualified person under reg. 6 and it followed that the appellant as her family member had the right under reg. 14(2) to reside in the UK but he was not satisfied that he was entitled to permanent residence and his appeal was dismissed.

At the hearing before us the appellant relied on three submissions.  Firstly, he argued that the continuity of his wife’s residence had not been raised as an issue by the respondent and therefore was not in issue before the judge.  Mr Jafferji referred to the terms of the refusal letter arguing that the respondent had been well aware of his wife’s absences from the UK but had only raised the issue of whether the appellant had resided for a continuous period of five years and whether his wife had been exercising treaty rights for a continuous period of five years.  He submitted that the appellant’s evidence and submissions at the hearing did not address the question of the continuity of residence of the appellant’s wife and if that was a matter which had concerned the judge, he should have drawn it to the parties’ attention so that the issue could be properly considered.

His second submission was that the judge had failed to make sufficient findings of fact on the issue of the continuity of his wife’s residence and had not dealt with the evidence with sufficient particularity to make it clear what his findings were.  The judge had referred to the fact that there was inconsistent evidence from the appellant and his wife about the frequency of her periods of work in Sweden.  He had said that he was satisfied that she had spent some periods of time working there since 2006 and that on her own evidence she had worked there six or seven times a year for an average of one or two months.  Mr Jafferji argued that the lack of clarity in the judge’s findings was compounded by his reference in para 30 to being satisfied that the appellant’s wife had been exercising treaty rights in the UK and was a qualified person under reg. 6.

Mr Jafferji’s final argument was that in any event the continuity of the residence of the appellant’s wife was not relevant to the issue of whether he had acquired the right of permanent residence.  He referred to Directive 2004/38/EC (“the 2004 Directive”) and in particular to recital 17 and Article 16.  He submitted that reg. 15 had to be interpreted in the light of the fundamental importance of the status of Union citizens, referring in this context to (Case C-162/09) Lassal (2010), and the importance placed upon the rights of family members so that Union citizens are able to exercise their rights freely, effectively and with dignity.  The objective of the 2004 Directive was to give protection to the rights of family members of a Union citizen regardless of their nationality and independently of their relationship to the Union citizen. He argued that it was clear the appellant had been residing lawfully in the UK pursuant to rights granted by the 2004 Directive for a continuous period of five years and these were derived rights as the spouse of a Union citizen.  His wife had been travelling and residing outside the UK pursuant to her exercise of the right of freedom of movement and, if her actions had a detrimental affect on his rights, it would deter her from exercising those fundamental freedoms

Mr Kyriacou submitted in relation to the first point that it was clear from the respondent’s decision letter that it was not accepted that the appellant’s wife had been residing continuously in  the UK in accordance with the 2006 Regulations because she had been living and working in Sweden at times during the relevant period.  There was, therefore, no ambiguity in the decision letter.  The sole issue for the judge to determine had been whether his wife’s alleged breaks in continuous residence were relevant to the appellant’s application for permanent residence under reg. 15.  So far as the second issue was concerned, he accepted that the judge had failed to make adequate findings of fact or give sufficient reasons for his decision.

However, so far as the third issue was concerned, he submitted that in order to succeed under reg. 15 the appellant had to show that he was living with his Union national wife, they were both living in accordance with the Regulations and had been living together for five continuous years.  He submitted that the wording of reg. 15 was not materially different from Article 16 of the 2004 Directive.  The general principle, so he argued, was that a non-Union family member derived his right of residence from the Union national and that it would be an absurd situation if a non-Union national was entitled to permanent residence in circumstances where he entered the UK, married a Union national, remained in the UK working and living continuously whilst his spouse left the UK and then lived and worked at all times in another Union country.

He argued that it could not be intended in such circumstances that the non-Union spouse would be entitled to permanent residence when the Union national spouse would not so qualify.  The Regulations were designed to ensure that a Union national could exercise freedom of movement and were not intended to allow a situation where the status of the Union citizen became of secondary relevance to that of a non-Union citizen.  If there had been a break in the continuity of the residence of the appellant’s wife, it must follow that he could not meet the requirements of reg. 15(1)(b).

We will deal firstly with the issue of whether the appellant needs to prove that his Union national spouse has been residing in the UK exercising Treaty rights for a continuous period of five years in order to qualify for permanent residence within reg. 15(1)(b). The calculation of continuity of residence is set out in reg. 3 which provides as follows:

“3(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;

…

(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.”

Regulation 15(1)(a) and (b) dealing with permanent right of residence provide as follows:

“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.”

We have been referred to recital 17 and Article 16 of the 2004 Directive which read as follows:

“17.

Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host Member State would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion which is one of the fundamental objectives of the Union.  A right of permanent 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 expulsion measure.”

Article 16

“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 1 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.”

We have also been referred to Lassal which set out a number of general principles for the interpretation of EU provisions.  We note in particular the following in paras 31- 32:

“31.

The Court has also observed that, having regard to the context and objectives of Directive 2004/38, the provisions of that Directive cannot be interpreted restrictively and must not in any event be deprived of their effectiveness (see Metock and Others, para 84).

32.

As recital 17 in the preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that Directive in order to strengthen the feeling of Union citizenship.”         

The Court went on to emphasise in its judgment, particularly in para 49, that when interpreting a provision of EU law it was necessary to consider not only its wording but also the context in which it occurred and the objective pursued by the Rules of which it was a part.

Applying these principles to the wording of reg.15(1)(b) we are satisfied that a family member has to show that not only he but also his Union national spouse has been residing in the UK in accordance with the Regulations for a continuous period of five years.  If the continuity of the residence of the Union national is broken, having taken into account the provisions of reg.3, neither the Union national nor the spouse can acquire permanent residence.

The requirement for continuity of residence applies to the Union national by virtue of reg. 15(1)(a) and we are not satisfied that the Regulations or the Directive could have intended that a family member whose rights derive from residence with the Union national should be able to acquire permanent residence when the Union national is unable to do so.  The wording of reg. 15(1)(a) and (b) is clear.  To acquire the right to permanent residence the Union national must have resided in the UK “in accordance with these Regulations for a continuous period of five years” and a family member must have resided in the UK “with the EEA national” also “in accordance with these Regulations for a continuous period of five years”.  It follows that both the Union national and the family member must meet the requirement of continuity of residence. 

We are not satisfied that this interpretation in any way inhibits the exercise by a Union citizen of rights of free movement or freedom to work in another Member State.  We do not accept the argument that there is any loss of social cohesion or a detriment to the feeling of Union citizenship by a non-Union spouse not acquiring permanent residence in circumstances where the Union spouse does not meet the requirements for such residence.

We are therefore satisfied that if the appellant’s wife is unable to meet the requirements of continuity of residence in accordance with the Regulations, the appellant cannot succeed in his own application for permanent residence simply on the basis that he has the necessary continuity.  For these reasons the appellant was not able to succeed simply on the basis of his continuity of residence and the judge did not err in law in that respect.

We now go on to deal briefly with the other two submissions made by Mr Jafferji.  We are not satisfied there is any substance in his first point that the issue of continuity was not clear from the respondent’s decision.  We have already referred to the respondent’s reasons in para 2 above.  If there was any ambiguity as to whether the continuity of the exercise of treaty rights in the UK by the appellant’s wife was put in issue, the point is made clear in the previous paragraph in the decision which records that the respondent had written requesting further evidence to support the application including:

 “evidence that your EEA family member … has exercised Treaty rights in the United Kingdom for a period of a five year continuous period, i.e. pay slips, P60, end of tax year certificates and employer’s letters if employed or if self employed national insurance, contribution and tax and earnings records in a letter from HM Revenue and Customs, business bank statements, audited accounts from a certified account and recent business invoices …”.

We are satisfied, however, that the judge erred in law by failing to make adequate findings of fact on when the appellant’s wife was living and working in Sweden as opposed to the UK and in consequence failed to deal adequately with the issue of the continuity of her residence.  

This hearing will be adjourned for findings of fact on the issue of continuity of residence.  Permission is given to the appellant to adduce further oral or documentary evidence on that issue to be filed in accordance with directions.  The resumed hearing will be listed before SIJ Latter, if available.