The Court of Appeal, in Secretary of State for the Home Department v Ojo  EWCA Civ 1301 has strictly interpreted Regulation 7(1) of the EEA 2006 Regulations with the result that an adult non – EEA family member previously dependant upon her EEA national mother was unable to continue relying upon EEA law to show that she had acquired a right of permanent residence in the UK since during her period of residence here she had temporarily been economically independent from her mother…
The Court of Appeal, in Secretary of State for the Home Department v Ojo  EWCA Civ 1301 has strictly interpreted Regulation 7(1) of the EEA 2006 Regulations with the result that an adult non – EEA family member previously dependant upon her EEA national mother was unable to continue relying upon EEA law to show that she had acquired a right of permanent residence in the UK since during her period of residence here she had temporarily been economically independent from her mother.
Upon the Respondent’s initial arrival in the UK at the age of 18years, but being a direct descendant of the EEA national under the age of 21years and living with her EEA national sponsor, the Respondent clearly had a right to reside here. Matters however changed when the Respondent later on sought to live independently of her EAA sponsor, initially in order to undertake employment but then subsequently to form her own independent family unit by marrying and having children and also having turned 21years of age. Her later decision to start living once again with her EEA national mother could not however cover the gap she had created. The Court of Appeal, followed the letter of the law restrictively and counted the break in dependency against the Respondent to her detriment as she had not shown that she had resided in the United Kingdom with the EEA national in accordance with the Regulations.
The Citizens Directive 2004/38/EC provides:
2) “Family member” means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the
basis of the legislation of a Member State, if the legislation of the host Member State
treats registered partnerships as equivalent to marriage and in accordance with the
conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the
spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as
defined in point (b);
General rule for Union citizens and their family members
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.
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.
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 twelve 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.
The amended EEA 2006 Regulations provide:
“Continuity of residence 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;
(b)periods of absence from the United Kingdom on military service; or
(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.
(3) But continuity of residence is broken if a person is removed from the United Kingdom under these Regulations”.
“Family member 7.
(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—
(a)his spouse or his civil partner;
(b)direct descendants of his, his spouse or his civil partner who are—
(i)under 21; or
(ii)dependants of his, his spouse or his civil partner;
(c)dependent direct relatives in his ascending line or that of his spouse or his civil partner;
(d)a person who is to be treated as the family member of that other person under paragraph (3).
(2) A person shall not be treated under paragraph (1)(b) or (c) as the family member of a student residing in the United Kingdom after the period of three months beginning on the date on which the student is admitted to the United Kingdom unless—
(a)in the case of paragraph (b), the person is the dependent child of the student or of his spouse or civil partner; or
(b)the student also falls within one of the other categories of qualified persons mentioned in regulation 6(1).
(3) Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.
(4) Where the relevant EEA national is a student, the extended family member shall only be treated as the family member of that national under paragraph (3) if either the EEA family permit was issued under regulation 12(2), the registration certificate was issued under regulation 16(5) or the residence card was issued under regulation 17(4)”.
“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;
(d)the family member of a worker or self-employed person who has ceased activity
(e)a person who was the family member of a worker or self-employed person where—
(i)the worker or self-employed person has died;
(ii)the family member resided with him immediately before his death; and
(iii)the worker or self-employed person had resided continuously in the United Kingdom for at least the two years immediately before his death or the death was the result of an accident at work or an occupational disease;
(f)a person who—
(i)has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years; and
(ii)was, at the end of that period, a family member who has retained the right of residence.
1A) Residence in the United Kingdom as a result of a derivative right of residence does not constitute residence for the purpose of this regulation.
(2) The right of permanent residence under this regulation shall be lost only through absence from the United Kingdom for a period exceeding two consecutive years.
(3) A person who satisfies the criteria in this regulation will not be entitled to a permanent right to reside in the United Kingdom where the Secretary of State or an immigration officer has made a decision under regulation 19(3)(b), 20(1), 20A(1) or 23A”.
FACTS OF THE CASE
The Respondent, a Nigerian national came to the UK in July 2007 with her three sisters and her mother who is a national of Austria. The EEA national had come to the UK to work. At the time of arrival, the Respondent was aged 18years and was living with her mother.
In January 2009, the Respondent moved to Manchester to take up employment as a care assistant in a residential home. In early 2010 she became pregnant and in May 2010 gave up work as a result of complications with the pregnancy. Her first child was born in September 2010. The Respondent then moved back to live with her mother in November 2010, her mother having by that time moved from Surrey, where she had been living to Manchester. A second child was born in November 2012. The Respondent had been unable to work since May 2010 and her husband had no immigration status in the UK.
On 15th April 2011 , the Respondent and her husband applied to the Secretary of State for residence cards on the grounds that she was financially dependent on her mother. The applications were refused on the basis that the Respondent was no longer a member of her mother’s family, having reached the age of 21, and had failed to show that she had been throughout, and continued to be, financially dependent on her. She was therefore considered not to fall within the scope of Regulation 15(1)(b).
The Respondent’s appeal to the First Tier Tribunal was dismissed. The Upper Tribunal however set aside therefore set aside the decision of the First-tier Tribunal and allowed the Respondent’s appeal both under the EEA Regulations and on Article 8 grounds. The Upper Tribunal accepted that the Respondent and her husband, as well as their children, were all financially dependent on her EEA national mother. Applying by analogy the provisions of Article 16(3) of the Directive (transposed by Regulation 3(2)(a)), which the Upper Tribunal Judge considered to be an approach permitted by the decision of the Court of Justice of the European Union in Secretary of State for Work and Pensions v Dias (Case C325-09)  3 C.M.L.R. 40, the Upper Tribunal held that a break in dependency of less than 6 months did not interrupt the Respondent’s residence so as to prevent her from acquiring a permanent right to residence under Regulation 15(1)(b).
The Secretary of State appealed the Upper Tribunal’s decision to the Court of Appeal.
COURT OF APPEAL’S CONSIDERATIONS AND DECISION
In summary, it was argued on behalf of the Secretary of State that the Upper Tribune Judge had misunderstood the decision in Dias. Far from supporting the Respondent’s case, it undermined it, because it proceeded on the basis that a break in status (as opposed to residence) cannot be disregarded when calculating the period of continuous residence required for the purpose of Article 16 (Regulation 15).
It was however submitted on behalf of the Respondent that the decision in Dias reflected the intention of the Court of Justice to apply the concept of integration, which underpins the acquisition of a permanent right of residence, when considering the effect of short breaks in other qualifying factors, such as economic activity or (as in this case) economic dependency.
The Court of Appeal had regard to the following caselaw:
Secretary of State for Work and Pensions v Lassal (Case C-162/09) ;
Secretary of State for Work and Pensions v Dias (Case C325-09)  3 C.M.L.R. 40;
Onuekwere v Secretary of State for the Home Department (Case C-378/12)  1 W.L.R. 2420.
Referring to the decision in Onuekwere, the Court of Appel stated that that decision served to underline the fact that in order to acquire a right of permanent residence a person must live in a way that reflects a sufficient degree of integration into the host member state, but it does not follow that integration is sufficient in itself to enable a third-country national to acquire a permanent right of residence. If it were otherwise, the provisions of the Directive defining the classes of persons who can acquire such a right would be otiose.
The Court of Appeal further took the view that neither Dias nor Onuekwere touched directly on the question now before them, however it was noted by the Court of Appeal that in each of the two cases, the Court made certain comments which tended to support the conclusion that it is the continuity of legal residence which satisfied the need for integration. The Court of Appeal emphasised the word “legal” in this context, because it was considered that the concept of legal residence connotes residence in accordance with the requirements of the Directive. The Court of Appeal found nothing in either of these cases to suggest that it was possible to satisfy that requirement by aggregating periods of residence in different capacities at different times.
The Court of Appeal further stated that the present case was concerned not with losing the right of permanent residence, but with acquiring it.
The Court of Appeal also referred to the case of Ziolkowski v Land Berlin (Joined Cases C-424/10 & C-425/10)  3 C.M.L.R. 1013 , where the court held that lawful residence in the territory of the host member state without satisfying the conditions laid down in the Directive was not a “legal” period of residence for the purposes of acquiring a permanent right of residence. The Court of Appeal thus considered that decision supported the submission made on behalf of the Secretary of State that in order to acquire a permanent right of residence it is necessary to comply strictly with the requirements of the Directive, and in the present case, of the Regulations.
In the Court of Appeal’s view, none of the authorities referred to supported the proposition that the court can treat the period during which the Respondent ceased to be dependent on her mother as analogous to a period of absence from the United Kingdom. The Court stated that the acquisition of a permanent right of residence depends on continuous residence in a qualifying status .
The Court of Appeal also took the view that the Directive made no provision for changes in status of the kind which occurred in this case and stated that neither was there any reason why it should do so.
The Court of Appeal emphasised that there was a distinction to be drawn between residence and status which makes it inapposite to draw an analogy between the two.
The Court therefore held that the Upper Tribunal was wrong to hold that the provisions of Regulation 3(2) could be applied to the present case by analogy.
The Court of Appeal allowed the appeal, set aside the decision of the Upper Tribunal and dismissed the Respondent’s appeal against the Secretary of State’s decision.
The Court of Appeal noted in their judgement that the Secretary of State had provided a supplementary reasons for refusal letter stating that the decision not to issue residence cards to the Respondent and her husband did not require them to leave the UK if they could demonstrate that they had some other right to reside here under the Regulations. The Secretary of State also stated that the Respondent and her husband had not sought to obtain leave to remain on the basis of their rights under Article 8 of the European Convention on Human Rights, but that they could do so if they made a separate application, for which a fee would be payable.
In practice however having regard to the facts of the case, the purported resort to Article 8 rights appears illusory. It was shown that dependency at some point between the Respondent and her mother had not applied; as such having in effect formed an independent family unit of her own at some point and being now an adult, arguments based on a right to family life with her mother such that it would be disproportionate to remove her could be difficult to establish.
Although some reference could be made to Section 55 as regards the welfare of the Respondent’s children, where some bond can be shown to exist between the EEA national sponsor and her grandchildren, the fact also remains that the Respondent’s children themselves are also quite some way off the mark in regards to the “7year Rule”. Further the Secretary might upon consideration, refuse the Article 8 claim on the basis that the Respondent, her husband and their two children could leave the UK and live as a family unit abroad.
Having regard to the outcome in the Court of Appeal, the decision in practice appears unfairly to leave vulnerable and open to removal those who come to the UK in the circumstances that the Respondent did but however subsequently move away from their EEA Sponsor and form an independent family unit of their own. Having regard to the strict interpretative approach taken by the Court of Appeal, perhaps then the Respondent might have been better off putting her life on hold for 5 continuous years thus confining herself to provable dependency upon her EEA national mother- simply so as to satisfy the Secretary of State that she continued to have a right to reside in the UK under EEA law.