Tribunal decisions

The decision

IAC-FH-AR-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/29459/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 21 November 2016
On 28 November 2016

Before

UPPER TRIBUNAL JUDGE FRANCES

Between

G S M
(anonymity direction MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:

For the Appellant: Mr A Burrett, Direct Access
For the Respondent: Mr I Jarvis, Home Office Presenting Officer

DECISION AND REASONS

1. The Appellant is a citizen of Nigeria who was born on 26th November 1976. His appeal against the refusal of a permanent residence card under the Immigration (European Economic Area) Regulations 2006 was dismissed by First-tier Tribunal Judge J Macdonald in a decision dated 5th July 2016.

2. The Appellant appealed on the grounds that the judge had erred in law in his application of Regulation 9 of the EEA Regulations. Regulation 9(2)(c) and 9(3) did not apply in this case because the Appellant was excluded under the transitional arrangements in Schedule 3 paragraph 2 of the Immigration (EEA) (Amendment) (No. 2) Regulations 2013. The judge had failed to apply the transitional provisions and the assessment of the Appellant's case should not have included consideration of the 'centre of life' test. The Appellant had acquired a permanent right of residence in the UK under the Regulations prior to the amendments coming into force.

3. Permission to appeal was granted by First-tier Tribunal Judge Grant-Hutchinson on 28th October 2016. She states:

"It is arguable that the judge had misdirected himself by failing to apply such cases as OB (EEA Regulations 2016, Article 9(2) - Surinder Singh spouse) Morocco [2010] UKUT 420 (IAC) to the facts of this appeal where arguably there is a sufficient link between the exercise of the spouse's treaty rights and return which could impact on the 'centre of life' issue."

4. The Appellant's immigration history is as follows. The Appellant and Sponsor resided together in the Republic of Ireland from December 2000 until August 2001 during which the Sponsor was employed from 6th November 2000 to 9th March 2001. The Appellant married the EEA national Sponsor in the Republic of Ireland on 15th March 2001. Towards the end of their residence the Sponsor made frequent trips to visit the UK to see her father who was unwell and who died on 26th July 2001. The Sponsor returned to the UK in August 2001 and took up employment with Boots Dental Care in November 2001. The Appellant returned to the UK in December 2001. He applied for a permanent residence card on 20th March 2015.

Submissions

5. Mr Jarvis conceded that the transitional provisions in Schedule 3 paragraph 2 of the Immigration (EEA) (Amendment) (No. 2) Regulations 2013 may well apply in the Appellant's case. If that were the case, then the 'centre of life' test in Regulation 9(2) and (3) would not apply and the judge had erred in law in applying Regulation 9 as amended rather than applying Regulation 9 prior to amendment. The relevant date was 1st January 2014.

6. Mr Jarvis accepted that this point was raised in the skeleton argument that was before the First-tier Tribunal Judge. Therefore, the judge had erred in law in failing to consider whether this was a case to which the transitional provisions applied and whether it should have been decided under Regulation 9 prior to amendment.

7. Mr Jarvis submitted that the Respondent had refused the application on the basis that the parties had failed to show they were living together. The judge found that the parties were living together and then went on to consider the remaining sub-sections of Regulation 9. What the judge should have considered was whether, when the Appellant re-entered the UK in 2001, there was a five-year period in which the Sponsor was not only living with the Appellant, but was exercising Treaty rights.

8. Mr Burrett agreed with Mr Jarvis and requested that the appeal be remitted to the First-tier Tribunal because this was an issue which had not been considered at first instance, the judge having failed to look at whether there was sufficient evidence to show that the Appellant had acquired permanent residence in the five-year period immediately after his return to the UK. Mr Burrett applied for an anonymity order.

Discussion and Conclusions

9. Schedule 3 of the Immigration (EEA) (Amendment) (No. 2) Regulations 2013 states:

"(1) The substitution of regulation 9 of the 2006 Regulations by paragraph 5 of Schedule 1 has no effect in relation to the family member ("F") of a British citizen where the criteria in subparagraphs (2) or (3) are met.

(2) The criterion in this subparagraph is met where, upon the coming into force of these Regulations, F was a person with a permanent right to reside in the United Kingdom under the 2006 Regulations."

10. Regulation 9 prior to amendment on 1st January 2014 states:

"(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member of a United Kingdom national as if the United Kingdom national were an EEA national.

(2) The conditions are that-

(a) the United Kingdom national is residing in an EEA State as a worker or self-employed person or was so residing before returning to the United Kingdom; and

(b) if the family member of the United Kingdom national is his spouse or civil partner, the parties are living together in the EEA State or had entered into the marriage or civil partnership and were living together in that State before the United Kingdom national returned to the United Kingdom.

(3) Where these Regulations apply to the family member of a United Kingdom national the United Kingdom national shall be treated as holding a valid passport issued by an EEA State for the purpose of the application of regulation 13 to that family member."

11. Given the concession by Mr Jarvis and the transitional provisions in Schedule 3 set out above, I find that the judge erred in law in failing to consider whether the Appellant benefited from the transitional provisions. The judge failed to consider whether the 'centre of life' test in Regulation 9(2)(c) and 9(3) was applicable in this case. The judge erred in law in failing to consider whether, when the Appellant re-entered the UK in 2001, there was a five-year period, prior to 1st January 2014, in which the Sponsor was not only living with the Appellant, but was exercising Treaty rights.

12. If the Appellant could demonstrate that he had acquired permanent residence in the five-year period immediately after his return to the UK, in that he was residing with the Sponsor and she could show that she was employed during that time, the Appellant could benefit from the transitional provisions. Regulation 9 prior to amendment (see paragraph 10 above) would be applicable. If that was the case the Appellant need not satisfy the 'centre of life' test.

13. I have decided in accordance with paragraph 7.2 of the Practice Statements of 25th September 2012 that the decision dated 5th July 2016 should be set aside and the appeal remitted to the First-tier Tribunal.

DIRECTIONS

(i) This decision is served on the Appellant.

(ii) The Tribunal is directed pursuant to section 12(3) of the Tribunals, Courts and Enforcement Act 2007 to reconsider the appeal at a hearing before a First-tier Tribunal Judge J MacDonald.

(iii) I direct that the Appellant serve on the Respondent and the Tribunal not less than 14 days before the hearing a fully paginated and indexed bundle of documents on which they intend to rely.

(iv) No interpreter is required. Time estimate 2 hours.

J Frances
Signed: Date: 24th November 2016

Upper Tribunal Judge Frances

Direction Regarding Anonymity - Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008

Unless and until a Tribunal or court directs otherwise, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify her or any member of her family. This direction applies both to the Appellant and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.

J Frances

Signed Date: 24th November 2016

Upper Tribunal Judge Frances