Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/07923/2016

THE IMMIGRATION ACTS

Heard at: Field House
Decision Promulgated
On: 29 June 2018
On: 10 October 2018

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

Stephen [M]
[NO ANONYMITY ORDER]
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Ms Althea Radford, Counsel instructed by Greater London
Solicitors Ltd
For the respondent: Mr Ian Jarvis, a Senior Home Office Presenting Officer

AMENDED DECISION AND REASONS
Pursuant to paragraph 41 (2)(d) of The Tribunal Procedure (Upper Tribunal) Rules 2008
1. The appellant appealed with permission against the decision of the First-tier Tribunal dismissing his appeal against the respondent's decision to refuse him a permanent right of residence pursuant to Regulations 5, 6 and 15 of the Immigration (European Economic Area) Regulations 2016. The appellant is a citizen of Ghana.
2. The decision in this appeal will turn on the proper interpretation of Regulation 6(2) of the Immigration (European Economic Area) Regulations 2016, and the decision of the Court of Justice of the European Union in Saint Prix v Secretary of State for Work and Pensions (Aire Centre, intervening) [2014] EUECJ C-507/12, [2015] 1 CMLR 5 (Case C-507/12) (the Saint Prix issue).
3. The appellant's application is based on his marriage to a Swedish citizen said to be exercising Treaty rights in the United Kingdom at the material times. The parties have two children, born on 15 September 2011 and 18 March 2013. Both children have sickle cell anaemia. The sponsor's mother is also in the United Kingdom and helps with their care. The sponsor has not worked since her children were born, though she may have studied for a time in 2014.
4. The sponsor's failure to return to work after the birth of her first child extended well beyond the maternity leave period, which is why she lost her job. The evidence before the First-tier Tribunal was not such as to indicate that the sponsor herself was ill as a result of her pregnancy, but both of her children have sickle cell disease and have been very unwell since birth as a result, such that even with her mother helping with the children's care, she has not felt able to work since they were born.
The Saint Prix issue
5. The EEA Regulations provision relevant to this appeal is Regulation 6(2):
"6?(2). A person who is no longer working must continue to be treated as a worker provided that the person-(a) is temporarily unable to work as the result of an illness or accident;"
6. In Saint Prix, the Court of Justice of the European Union held that a woman who was temporarily unable to work because of the physical constraints of the late stages of pregnancy and the aftermath of childbirth did not cease to be a worker, so long as she returned to work within 'a reasonable period after the birth of her child'. The Court of Justice envisaged an extensive, fact sensitive evaluation as to whether a woman had really left the labour market.
7. The appellant contends that the language of Regulation 6(2) extends, or should be extended, to include the illness or accident of a member of a person's family, causing such person to be unable to work, as opposed to her own illness or accident. There is no decided authority in United Kingdom law to the effect for which the appellant argues, that the natural meaning of the language 'as the result of an illness or accident' in Regulation 6(2) should be treated as inclusive of persons other than the worker.
8. The decision in Saint Prix has been considered by the Upper Tribunal in Weldemichael and another (St Prix C-507/12; effect) [2015] UKUT 540 (IAC) and in Gauswami (Retained right of residence, Jobseekers) [2018] UKUT 275 (IAC). In Weldemichael, the Upper Tribunal found that a woman was entitled to continue to be treated as a worker provided that her absence from work did not extend beyond 52 weeks, beginning no earlier than the 11th week before her expected date of confinement, and that she returned to work.
Rule 41
9. At the hearing on 29 June 2018, I reserved my decision. I gave an oral indication that I was likely to set aside the decision of the First-tier Tribunal, preserving the findings of fact, and remit the appeal to the First-tier Tribunal for rehearing on the Saint Prix issue, with no findings of fact or credibility preserved. Both parties made a note that I had so indicated. I accept, having regard to the Presenting Officer's note of proceedings and Counsel's note, both of which have been confirmed in writing, that the parties considered that I had decided to remit the appeal on those terms.
10. When writing up my reserved decision on 3 September 2018, I reached a different conclusion, and the decision as promulgated dismissed the appeal. Both parties have challenged that decision.
11. Where an indication is given on a reserved decision, the decision of record is the written decision. However, I accept that there was a procedural irregularity in reaching a different conclusion from that which was discussed at the hearing, without seeking further submissions from the parties on the Saint Prix issue.
12. It is in the interests of justice for there to be findings of fact as to whether the sponsor left the labour market after the birth of her children, so that the Saint Prix issue can be properly considered.
13. Pursuant to paragraph 41(2)(d) of the Upper Tribunal Procedure Rules, I therefore set aside my decision dismissing the appeal, and remit this appeal to the First-tier Tribunal for the decision to be remade afresh, with no findings of fact or credibility preserved.
Discussion
14. The question here is whether the Saint Prix extension extends to the illness of the sponsor's children, or only to her own physical and/or mental recovery from the birth, and whether she left the labour market during that long period of absence. The basis of the appellant's challenge to the decision of the First-tier Tribunal is that the Judge failed to make adequate findings as to whether the appellant's wife had really left the labour market.
15. The appeal is allowed. The decision in this appeal will be remade in the First-tier Tribunal on a date to be fixed.

DECISION
16. For the foregoing reasons, my decision is as follows:
The making of the previous decision did involve the making of no error on a point of law
I set aside the decision of the First-tier Tribunal. The decision in this appeal will be remade in the First-tier Tribunal.

Date: 8 October 2018 Signed Judith AJC Gleeson Upper Tribunal Judge Gleeson