Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/46196/2013

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 23rd September 2014
On 30th September 2014

Before

UPPER TRIBUNAL JUDGE COKER

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
And

ABDELAZIZ ABDI SALEH
Respondent

Representation:
For the Appellant: Mr S Whitwell, senior home office presenting officer
For the Respondent: Mr A Hersi of Hersi & Co solicitors

DETERMINATION AND REASONS
1. The Secretary of State was granted permission to appeal the decision of First tier Tribunal Judge S Aziz who allowed an appeal by Mr Saleh against a refusal to issue a Permanent Residence Card under the Immigration (European Economic Are) Regulations 2006 (EEA Regulations), regulation 15(1)(b).
Background
2. Mr Saleh had applied for a residence card on the grounds that he was the family member of an EEA national and that he had resided in the UK with that EEA national for a continuous period of five years.
3. The application was refused on the grounds that he had not provided evidence that the EEA national had resided in the UK in accordance with the EEA Regulations during that five year period.
Error of law
4. The First-tier Tribunal found (and these findings were not challenged or disturbed):
a. There was inadequate evidence to establish to the requisite standard of proof that Mr Saleh's wife had been exercising Treaty Rights during the tax years 2003/4 and 2004/5.
b. That Mr Saleh's wife was exercising Treaty Rights within the tax years 2005/6, 2006/7, 2007/8, 2008/9 and 2010/11.
c. That Mr Saleh's wife was not exercising Treaty rights during the tax year 2009/10.
d. That from 2011 to the date of hearing she was mainly looking after their children.
5. It would have been of greater assistance to Mr Saleh and to the calculation of time generally had the First-tier Tribunal judge made findings as to the dates when Mr Saleh's wife was exercising Treaty Rights, particularly given the need to establish that she had been exercising those rights for a five year continuous period and not merely during periods of time within tax years.
6. On the basis of the general findings of the First-tier Tribunal judge and despite the lack of specificity I am satisfied that Mr Saleh's wife was exercising Treaty rights from 5th April 2005 until 4th April 2009. This amounts to a continuous period of four years.
7. The Secretary of State submitted that the First-tier Tribunal judge had erred in law in finding that the resumption of exercise of Treaty Rights by Mr Saleh's wife on 10th May 2011 meant that the period after May 2011 could be aggregated with the previous periods of time during which she had been exercising Treaty Rights such that she had accumulated five years continual residence and thus that Mr Saleh had acquired a right of permanent residence. The judge had, the Secretary of State submitted, erroneously relied upon SSWP v Dias (Case C-325/09) CJEU (Third Chamber) for that proposition.
8. Mr Hersi was unable to point to any part of Dias which gave authority for the conclusion drawn by the First-tier Tribunal.
9. Dias is not authority for the proposition that periods of residence can be aggregated for the purpose of calculating continuous residence. The First-tier Tribunal judge erred in law in finding it was. He has erred in law in finding that the established periods of time during which Mr Saleh's wife was exercising Treaty rights amounted to five years continuous residence and thus enabled Mr Saleh to obtain permanent residence.
10. I set aside the decision to be remade.
Remaking the decision
11. There had been no challenge to the findings of the First-tier Tribunal judge as to the periods during which Mr Saleh's wife was working. I heard no oral evidence but heard submissions from both representatives.
12. Mr Hersi submitted that the period of absence from work between April 2009 and 10th May 2010 was permitted in accordance with the EEA Regulations and did not break continuity of residence. She was entitled to 6 months unexplained absence and thereafter was entitled to absence from work as a result of pregnancy. She had become pregnant in October 2009 (as evidenced by the birth of the baby in May 2010). She therefore retained her continuity of residence and thus had an aggregate period of five years (regulations 3(2)(a) and 3(2)(c)). He submitted that it did not matter that she remained in the UK.
13. Mr Hersi further submitted that in any event the Secretary of State was estopped from raising "anything that happened" between February 2009 and May 2010 because from November 2008 until February 2010 Mr Saleh had an application pending before the Secretary of State, there was correspondence between Mr Saleh and the Secretary of State to establish whether his spouse was exercising Treaty Rights and the outcome of that application was to grant him a five year residence document with effect from 2nd February 2010. During that period of time, it was argued, the grant of a residence permit meant that the Secretary of State accepted that Mr Saleh's wife was exercising Treaty Rights and she was thus estopped from now stating that she was not. Alternatively it was submitted that the Secretary of State had waived the right to rely on the assertion that the spouse was not exercising Treaty Rights given in particular that Mr Saleh had previously been granted entry clearance in March 2007 as the spouse of an EEA national exercising Treaty rights.
14. Regulation 3 (2) reads, so far as is relevant for Mr Saleh:
3.- Continuity of residence
(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) ?
(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.
15. There are two difficulties with Mr Hersi's first submission: regulation 3 requires absence from the UK and secondly there is no provision for aggregation of period covered by 3(2)(a) and 3(2)(c). On the basis of the findings of the judge as to the periods of time when Mr Saleh's wife was employed and exercising Treaty rights, on the basis that she was not absent from the UK and on the basis that such periods when she was either not working or was pregnant cannot be aggregated, I find that she has not accrued five years continuous residence in accordance with the EEA regulations. Mr Saleh thus does not qualify under that head.
16. In so far as the "estoppel" argument raised by Mr Hersi this too must fail. The issue of a residence permit is declaratory only for that time. The residence permit was issued in February 2010 and is merely declaratory that at that date his wife was exercising Treaty rights. It has no bearing on the periods of time before or after that date.
17. Accordingly I find that the Secretary of State's appeal against the decision of the First-tier Tribunal judge succeeds; Mr Saleh's appeal against the decision of the Secretary of State to refuse to issue him with a permanent residence permit is dismissed.
18. It is of course open to Mr Saleh to submit a further application for a permanent residence card with evidence that his wife was exercising Treaty Rights for a continuous period of five years and covering the actual dates for which she makes such a claim.
Conclusions:
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law.
I set aside the decision
I re-make the decision in the appeal against the decision of the Secretary of State to refuse to issue a permanent residence card by dismissing it

Date 29th September 2014
Upper Tribunal Judge Coker