Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/04595/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 10 June 2016
On 11 August 2016

Before

DEPUTY UPPER TRIBUNAL JUDGE STOREY

Between

abdul deen koroma
(ANONYMITY DIRECTION NOT MADE)

Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellant: Mr D Eteko, IRAS & Co
For the Respondent: Mr J McGirr, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Sierra Leone. He came to the UK in or about 2002 and applied unsuccessfully for asylum. He subsequently met and married a national of the Netherlands. They married on 13 December 2007. On the basis of this marriage the appellant was granted a residence card from 9 November 2009 - 9 November 2015, but shortly before expiry of that period (on 15 October 2014) he applied for permanent residence on the basis of his marriage. On 16 January 2015 the respondent refused that application. One of the reasons she gave is conceded to be misconceived. She referred to reg 10 of the Immigration (European Economic Area) Regulations 2006 and stated that the appellant did not have a retained right of residence. This was misconceived because the appellant had separated from his spouse in 2012, but they have never divorced. However the respondent also relied on the appellant's inability to meet the requirements of reg 15(1)(b). The respondent stated: "[y]ou have provided no evidence to show that she has been exercising her treaty rights in the United Kingdom for a 5 year period."

2. The appellant appealed. In a decision sent on 11 September 2016 First-tier Tribunal Judge (FtT) Judge Khawar dismissed his appeal. The judge gave two main reasons. It is agreed between the parties that one of these was plainly wrong. At [17] the judge purported to refuse the application because the appellant had not shown he had resided with an EEA national for a continuous period of five years, stating at [17] that:

"... the appellant's account is that he resided in the United Kingdom between some date (not specified) in 2008 until some date (not specified) in 2012 when [the couple] were separated. This merely represents a period of at best four years of continuous residence together."

3. The error reflected in this finding was the assumption that "residing with "required cohabitation or living under the same roof. As the Upper Tribunal made clear in PM (EEA - spouse - "residing with") Turkey [2011] UKUT 90 drawing on the Court of Justice judgment in Diatta v Lord Berlin [1985] ECR 967, it is sufficient for the purpose of the EEA Regulations if the couple were both present in the UK even if separated and not cohabitating. (The judge also misleadingly referred in [21] to the appellant not having any retained rights; this was erroneous because, not being divorced, the appellant could not retain rights in any event.

4. The other reason the judge gave for dismissing the appeal was that the appellant could not show that his spouse had been exercising treaty rights continuously for five years, because:

"his employment history (as set out in the witness statement dated 28 July 2015 of Wendy Gilbert of HMRC) clearly shows substantial gaps within the appellant's spouse's employment record; at the very least it is clear from Ms Gilbert's witness statement that the appellant's spouse was not employed between 11 November 2011 and 13 July 2012, a period of approximately eight months."

5. Leaving aside the valid challenge to the judge's mistaken approach to the issue of whether the appellant and his spouse met the "residing .... with" requirement (see above), the grounds relied on two aspects. The first was that it was possible, on the authority of the Court of Justice judgment in Maria Dias v SSWP [2011] "to cobble together 5 years' legal residence out of time periods spent the UK, sometimes exercising residence rights, sometimes not".

6. In my judgement this ground must fail.

7. As the judge correctly pointed out at [21] the case which the appellant primarily sought to rely on was Lassal [20120] ECRI 00007. But in this case the Court of Justice was concerned with the issue of whether residence prior to the 2006 Regulations could be deployed to aggregate an individual's length of residence in the UK; it proceeded on the assumption that by taking into consideration the pre-2006 residence the individual in that case could show a continuous period of residence amounting to five years: see Dias at [43] and [66]. Neither Lassal nor Dias said anything about the ability to aggregate periods of residence between which there was no continuity. Lassal concerned "continuous periods of residence... completed before the date of transposition of the Directive 2004/38 ..." (see Dias at ]235] and [65].

8. The other ground which the appellant advances is that the judge was wrong to consider that in order to show continuous residence in accordance with the Regulations the appellant had to show that he was in continuous employment. By reference to the Case C-230/03, Mehmet Sedof it was agued that it was possible to retain the status of worker despite the interruptions (Mr Sedof's periods of employment had been interrupted seventeen times, for periods of between 1 and 70 days amounting in total to 13 months, see [7]. This ground was not in fact raised in the grounds but only by Mr Ekete in oral submissions. I am prepared, however, to treat the appellant's grounds as varied to include this ground because it was clear from the original grounds that the "interruption" point was raised, albeit without any clear citation of authority to support it. Further, even though the Sedof case concerns the Turkish Association Agreements, not Directive 2004/38/EC, the principles it enunciates are entirely consistent with the Court of Justice (and UK) cases dealing with this issue: see e.g. Martinez Sala [1998] ECR 1-2 691.

9. In essence the case law requires assessment of whether interruptions have broken continuity of employment to be taken by having regard to a wide ranges of factors, including whether a person has continued to be connected to the labour market and has a genuine intention of being employed and a genuine chance of becoming employed.

10. Whilst the judge did not self-consciously apply such a rounded approach, I do not consider there was any error in his assessment of the facts of the appellant's case. In the appellant's case what the judge properly relied on was that his spouse's employment record showed significant gaps. Within the period from the dates of marriage to the date of decision (13 December 2007 - 16 January 2015) there were significant gaps. There were a number of short gaps which stood to be disregarded, approximately two months in 2011 and three months in 18 February 2013 and 18 June 2013 for example. However there was also a very significant gap: between 11 November 2011 and 13 July 2012 (an eight month gap).

11. I would observe that a gap of some 300 odd days is very considerably longer than the 70 days gap disregarded in Sedof. It is also two months longer than the benchmark period of six months contemplated by the Court of judge justice in Case C-393/96 P(R) I-441, [1997] ECR-1 Antonissen, for being a period during which a person could still claim to be a jobseeker.

12. It may be that a different judge considering the appellant's spouse's employment history may have taken a different view, but I can only interfere with the judge's assessment that continuity had been broken in the appellant's spouse's case if the view taken was outside the range of reasonable responses. I do not consider that the judge's assessment fell into this category.

13. Since the effect of this break (between November 2011 and July 2012) was that the appellant's spouse was not able to show five years' continuous residence in accordance with the Regulations, the judge's decision that the appellant had not established residence on the basis of being a family member of a person with such residence was not vitiated by legal error.

14. Accordingly the appellant's challenge must fail. My conclusion is that the judge did not materially err in law.

Signed Date: 9 August 2016

Dr H H Storey
Judge of the Upper Tribunal