Igor Babajanov v The Secretary of State for the Home Department

We found an error of law in the determination of the First-tier Tribunal for reasons given in our decision dated 22 May 2013 which was in these terms:

At the resumed hearing on 19 August we heard evidence from the claimant and his mother. They were accompanied by Mr Maclean but he was not tendered. We reserved our determination.

Although there were some discrepancies in the evidence that emerged in the course of hearing when considered with that given before the First-tier Tribunal and as between the witnesses at the hearing before us, Mr Bramble did not take any issue on credibility. We consider that he was sensible to do so as the inconsistencies principally arose out of the claimants' understanding of matters when he was a minor.

The time frame of events is important in this appeal. The relevant dates are set out in paragraphs 3 to 5 of our error of law decision above. Reminding us of the most significant dates, 30 April 2009 was the fifth anniversary of the arrival of the claimant and his mother in the United Kingdom with a family permit. By then the claimant's mother had returned to the United Kingdom and will have benefited from the decision of the First-tier Tribunal that by 30 April 2009 she had acquired a right of permanent residence which she had not lost through any absence. The claimant joined his mother in the United Kingdom in June 2010 following a completion of a course of study in Ireland. By then he had been outside the United Kingdom for 22 months.

Taking into account the evidence we heard at the hearing and the statements adopted, the following core facts have been established:

Whilst in the United Kingdom the claimant studied at John Mason School from 2004 until 2008 when he was awarded certain GSCEs.

The decision to go to Ireland in August 2008 was made jointly by the claimant’s mother and his stepfather, the purpose being that she should give birth there. Their daughter was born 8 February 2009.

The claimant as a minor travelled to Ireland on his mother’s passport. Her wish was that he should not be idle and wanted him to work or study. The claimant endeavoured to enrol at a college in Ireland for a higher diploma course in March 2009. The college considered he was not suitable for that course and he therefore pursued a foundation course at the Ballyfermot College of Further Education in Art evidenced by an award dated 7 July 2010 with results ranging from distinction (for 6 units) merit (for 2) and pass (for 1) all of which were assessed in May 2010. The course fees were paid by the claimant's mother and stepfather.

The claimant’s mother visited the United Kingdom on occasion whilst she was in Ireland. The claimant received his own Azerbaijan passport before his graduation but he did not accompany his mother on those visits. He understood that he did not return with his mother in March 2009 because she could not afford for him to travel with her. Her explanation was that there was no accommodation available for her son as she planned to stay with a friend. Her long term plan was for him to return to the United Kingdom. She had not given thought to any financial implications of her son accompanying her.

On his return to the United Kingdom in June 2010 the claimant re-established contact with his close friends whose identities he gave at the hearing. The claimant has had a succession of jobs since his return, the most recent involving accounting work in a bingo hall.

We conclude that by the time the claimant and his mother left the United Kingdom, they were integrated here and had built up connections. The purpose in going to Ireland was only a temporary one. Why the claimant did not return with his mother was for a combination of reasons and it appears on balance that the absence of suitable accommodation and the desirability that the claimant should complete the course of studies he was pursuing were the principal ones.

Echoing the issues we identified in our error of law decision and taking account of Miss Asanovic’s most recent skeleton argument we need to address the following questions:

Did the claimant remain continuously resident in the United Kingdom for the purposes of Directive 2004/38/EC (“the Citizens Directive”) and the Regulations on 30 April 2009 notwithstanding his presence in Ireland?

If so, would the claimant have acquired by 30 April 2009 a right of permanent residence in the United Kingdom?

What is the effect on any right of permanent residence the claimant may have had of his mother returning to the United Kingdom without him, one month before the fifth anniversary?

On the assumption the claimant had acquired a right of permanent residence by 30 April 2009 what is the effect on that right of the claimant continuing to live in Ireland until June 2010?

If the claimant is unable to demonstrate that by virtue of his absence from the United Kingdom from August 2008 or from his mother returning in March 2009, can the periods of residence in the United Kingdom disregarding the interlude in Ireland be aggregated for the purposes of establishing a right of permanent residence?

We were referred to a number of authorities including

Lassal [2010] EUECJ Case C- 1629/09

Tsakouridis [2009] EUECJ Case C – 145/09

Dias [2011] EUECJ Case C-325/09

Onuekwere (Imprisonment – residence) [2012] UKUT 00269 (IAC)

Essa (EEA: rehabilitation – integration) [2013] UKUT 00316 (IAC)

Teixeira [2010] EUECJ Case C-480/08

In the course of her submissions, Miss Asanovic confirmed there was no authority on the question whether a permanent right of residence in the host country can be acquired whilst someone is outside the host country.

We have set out above the relevant Regulations in paragraphs 14 and 15 of our error of law decision but we repeat them for ease of reference below:

As we observed in the error of law decision there is only a minor difference between the provision in Article 16 of the Citizens Directive and the above Regulations ( shall in lieu of is ) in Article 16(3). The full text of Article 16 is as follows:

We were also directed to recitals in the preamble to the Directive by Mr Bramble:

In summary Mr Bramble’s submissions were

When read with Recital 17 of the preamble, Article 16 has as a key element a choice to settle long term (in the host country) and the Directive is quite clear as to the level of integration required.

The categories in reg 3(2) were exhaustive.

Any time spent outside the United Kingdom cannot count towards the qualifying period except for reasonable absences.

If the absence exceeds the periods provided for in Reg. 3(2) there is no opportunity to aggregate and the accumulation must begin again.

Such rights as the claimant had acquired before leaving for Ireland had been lost and he therefore cannot succeed in obtaining a right of permanent residence.

With reference to the decision in Dias, the claimant’s absence for 22 months resulted in him losing his rights. This receives support from the decision in Onuekwere .

With reference to Reg. 15(1)(b) there is no difference between presence and residence.

Miss Asanovic developed aspects of her most recent skeleton argument in the course of her submissions. In summary the skeleton argues:

There is nothing on the face of the Directive to state that a person must be present in the Member State in order to claim the right of permanent residence. It is contrary to the basic principles of interpretation of Union law to interpret this differently. An interpretation contrary to residence not being equated with presence would deprive the national of residence which includes absences of its meaning in the context of Article 16. This provides that some absences would count and some would not.

Given that the purpose of permanent residence is integration, how can it be said that a person who had an unbroken period of residence with no absences during four years followed by twelve months for important reasons is less integrated than the person who was present in the member state for two years, absent for one and then present for another two years with reference to the analysis of purpose in Teixeira at [38]? Such an interpretation would deprive the provision for permitted absences of any useful effect. If that approach is adopted no anomaly is created, given that once one has acquired a permanent rights of residence, loss of that right by virtue of loss of level of integration is by reference to an absence of more than two years.

As to whether the claimant’s continuity of residence in the United Kingdom was interrupted having regard to his mother returning on 2 April 2009 (an absence of seven months and 26 days) and the claimant remaining for an additional 28 days before qualifying for permanent residence, it is disproportionate to assess that additional absence as not falling into the category of permitted absences. Had the claimant returned with his mother on 2 April 2009 to the United Kingdom and gone back to Ireland to commence and complete his studies, he would have also acquired permanent residence and his subsequent absence would have been immaterial. The claimant had not taken any steps which reflected an intention of living in Ireland nor had he become integrated there and his absence in any event was less than twelve months in duration.

The right of residence for the claimant is a reflection of the purpose of maintaining family unity of a migrant worker’s family in the context of which the principle of freedom of movement for workers must be given a broad interpretation, see Lassal .

Dias is authority for the proposition that “the integration objective which lies behind acquisition of the right of permanent residence ... is based not only on territorial and time factors but also on qualitative elements relating to the level of integration in the host Member State”. [64] There is nothing about the claimant’s presence in Ireland the United Kingdom to 30 April 2009 that indicates that he lost his integration in the UK.

In the alternative the whole period of 22 months he was absent needs to be assessed on the basis of the principles in Tsakouridis and the conclusion of the court at [33]:

As to whether the period of residence can be aggregated, the principles in Dias at [62] are applicable to the present situation for the claimant and with reference to Essa which provides that for the purposes of the qualifying period of residence periods before and after incarceration can be aggregated.

This remains the case if there had been an absence for an important reason, where the centre of one’s life had not moved elsewhere ( Tsakouridis ) and the quality of integration had not been compromised through absences ( Dias ).

Miss Asanovic’s skeleton ends with a request for a reference broadly along the lines that when interpreting the conditions for the acquiring of the right under Article 16(3) is the National Court obliged to interpret permissible periods of absence which have no impact on acquisition of permanent residence literally as being no longer than twelve months in duration or assess them in the light of their length, purpose and impact on the quality of the integration. This short summary does not do justice to the detailed points of reference which we have been invited to make. We indicated to Miss Asanovic that if our view is that reference is required, we would invite further submissions from the parties.

Article 16(3) of Directive 2004/58/EC provides that continuity of residence for the purposes of establishing a right of permanent residence shall not be affected by temporary absences which do not exceed a total of six months a year. There is no requirement to explore the purpose or reason for that absence which is described solely with reference to the duration of time. Longer absences for an undefined period for compulsory military service are also deemed not to affect continuity of residence. Separate from these two categories is a third which provides that one absence of a maximum of twelve consecutive months shall not affect continuity of residence, “... for important reasons such as pregnancy and child birth, serious illness, study or vocational training or a posting in another Member State or third country”.

We consider that the right of permanent residence under regulation 15 of the Immigration (European Economic Area) Regulations 2006 is capable of being established whilst a national of a Member State or a family member of that national is outside the host country provided the reasons for the absence come within Article 16(3) (and reg 3(2)). The reasons in these provisions are not exhaustive in the light of the reference to “such as” (reg 3 (2)(c)) but the absence must be for an important reason. For the interpretation of that phrase, regard needs to be had to the purpose giving rise to the absence. The purpose needs to be of a kind comparable to those illustrated which embrace compelling events and/or an activity which by implication, is linked to the exercise of treaty rights in the UK. The reason should be sufficiently compelling to require the Union citizen (or family member) to leave the host Member State for a purpose connected with his continued integration in that Member State or for a reason that is triggered by considerations of importance that need to be met notwithstanding that integration.

As observed in Dias ( where the court notes the Opinion of the Advocate General) at [64]:

It follows therefore that the purpose of absence of not more than twelve months must be examined in the light of the degree of integration present in the host Member State before the absence and the manner in which that integration has been affected by the absence.

In the case of the claimant, he was a minor at the time his mother decided to go to Ireland to give birth. Her decision to go to Ireland was for a reason provided for in Article 16(3) (and reg 15). As her son and a minor, the claimant was not taking a decision of his own in travelling with her to Ireland. Her decision to return to the United Kingdom without the claimant seven months and twenty six days after her departure did not arise out of a decision by her that he should remain in Ireland permanently but because there was inadequate accommodation for him in the United Kingdom. The further reason was because of the time which had already been invested in the claimant pursuing a course of studies.

Accordingly we are satisfied that the decision by the claimant’s mother that he should accompany her to Ireland did not result in a break in the continuity of his residence in the United Kingdom and furthermore her decision to return to the United Kingdom without him similarly did not result in a break of the continuity of his UK residence. We have quoted above in our summary of the submissions from Miss Asanovic the relevant passage from Tsakouridis at [33]. We are satisfied there was not a transfer of parental responsibility from the claimant's mother to another party and accordingly the fact that the claimant did not accompany his mother did not mean that by 30 April 2009 he had broken the continuity of his UK residence.

Since the circumstances of the claimant fall within regulation 3(2) we are satisfied that by 30 April 2009 the claimant had acquired a right of right of permanent residence in the United Kingdom.

The next question relates to the impact on that right of the claimant's continued absence from the United Kingdom until June 2010. Article 16(4) (and regulation 15 (1A)(2)) provides the answer. We do not consider it necessary therefore to examine the nature of the claimant's absence after he acquired the right of permanent residence unless it can be said he was away for more than 24 months. He returned 22 months after his departure and accordingly had not lost his right of permanent residence.

In the light of these findings it is unnecessary for us to journey further into the questions posited at [7].

For the reasons we have given above the First-tier Tribunal made an error of law. We set aside its decision insofar as the appeal by the claimant is concerned. We allow his appeal.