Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/49249/2014

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 6 July 2016
On 28 October 2016

Before

MR C M G OCKELTON, VICE PRESIDENT
UPPER TRIBUNAL JUDGE PERKINS

Between

laila yousaf
(ANONYMITY DIRECTION NOT MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms B Asanovic Counsel instructed by The Aire Centre
For the Respondent: Mr S Walker, Senior Home Office Presenting Officer
DECISION AND REASONS
(1) For reasons that are not relevant in our decision the First-tier Tribunal made an anonymity direction. We make no order restricting publication.
(2) The appellant is a citizen of Pakistan. She appeals the decision of the First-tier Tribunal promulgated on 31 July 2015 allowing to a limited extent her appeal against the decision of the respondent on 17 November 2014 to refuse her a residence card confirming her right to reside permanently in the United Kingdom.
(3) The First-tier Tribunal Judge purported to "allow the appeal to the limited extent that the Respondent's decision is not in accordance with the law and remains outstanding pending its lawful consideration". It is doubtful that the First-tier Tribunal has the power to make such a ruling. It was challenged on the basis that the First-tier Tribunal did not determine the material issue before it.
(4) It was the appellant's case that the judge's conclusion was unsustainable. In simple terms it was her case that she would have been entitled to permanent residence if she had been able to establish five years' continuous residence as the family member of an EEA national. In fact she could only establish a slightly shorter period but it was so close, she said, that refusing her application was disproportionate. She complained that the First-tier Tribunal Judge had not addressed the question that mattered.
(5) Ms Asanovic served a skeleton argument on the Tribunal on 4 July 2016. Paragraphs 3 and 4 are a helpful introduction to the case before us. The appellant is described as "LY". The appellant states:
"3. LY was married to an Italian national who had acquired permanent residence prior to their marriage. It was common ground that LY resided in the UK between 30 March 2007 as a spouse of a Union citizen until he was deported from the UK on 14 February 2012. This is a period of residence that is 44 days short of the five years required for acquisition of permanent residence.
4. LY contended that the decision to refuse her permanent residence is disproportionate in Union Law and thus the decision breaches her rights under EU Treaties in respect of entry to or residence in the United Kingdom (Section 84(1)(d) NIAA 2002)."
(6) The grounds then complain that the First-tier Tribunal simply failed to engage with the argument she made on the question of proportionality.
(7) Mr Walker, appropriately, did not seek to defend the decision. On this occasion the First-tier Tribunal Judge did not address her mind to the arguments before her. Rather she reached a conclusion that satisfied no-one and which she may well not have had power to make.
(8) We set aside his decision.
(9) The facts are established. There was no reason to return this case to the First-tier Tribunal and no-one asked us to take that course.
(10) Article 16 of Directive 2004/38/EC (Citizens Free Movement) states that:
"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."
(11) Paragraph (2) of Article 16 applies the above paragraph (1) to family members if they are not themselves nationals of a Member State. Paragraph (3) provides that
"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 consequent 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."
(12) It follows that although the appellant failed to satisfy the Rules because her husband did not live continuously in the United Kingdom for a period of 5 years, albeit by only 44 days, she might have acquired a permanent right of residence even if her husband had been out of the United Kingdom for much longer during the five years relied upon if the absence had been for some reason other than his deportation. This is a feature that may well fuel a sense of grievance in the appellant but, for the reasons set out below, if it does then it is a sense that is misconceived.
(13) On a plain reading of the Directive the appellant's case is quite hopeless. Her husband did not reside in the United Kingdom for a continuous period of five years. There is nothing in paragraph 3 of Article 16 that helps her. Continuity of residence is not broken by defined temporary absence, even quite long temporary absence. However there is no "temporary absence" here. Her husband's right to reside in the United Kingdom came to an end by deportation. There are many restrictions on the deportation of a Union citizen. Once deportation has been effected, as is the case here, his departure really cannot be regarded as a "temporary absence".
(14) The appellant makes two points.
(15) First, she maintains that the Directive needs to be constructed with regard to the principle of proportionality and, secondly, she maintains that if the principle of proportionality is applied then the appeal should be allowed.
(16) We have no hesitation in accepting the first limb in this argument. It is well-established to the point of being trite law that the principle of proportionality guides the interpretation of provisions relating to a person's rights under EU law. That said we struggle to find an example, or even to create a hypothetical example, of a person who fails to meet a precise requirement of EU law being able to rely upon the principle of proportionality to say that the person should be treated as if he or she did in fact meet the requirements.
(17) Ms Asanovic relied particularly on the case of Baumbast v SSHD [2002] 3 C.M.L.R. 23 decided by the European Court of Justice. Far from helping the appellant we find that this case illustrates how the principle of proportionality does not assist her. In Baumbast a person seeking a residence card was required to have comprehensive sickness insurance. She had insurance but it was not as comprehensive as an Immigration Appeals Adjudicator decided that it needed to be. The European Court of Justice, guided by the principle of proportionality and having accepted that the appellant had never applied for any kind of social assistance, decided that the appellant was entitled to reside in the United Kingdom. The point was that the principle of proportionality acted to stop an over-literal construction of the requirement for comprehensive sickness insurance. The requirement was never as precise as the requirement for five years' lawful residence.
(18) We are aware that Ms Asanovic took the trouble of preparing a bundle of eleven reported decisions and some additional cases were also handed to us. We have considered them but we decline to be drawn into making complex something that is essentially simple.
(19) In order to comply with the requirements of the Directive the appellant had to show that she and her husband had five years' continuous lawful residence. She could not do that because her husband had been deported before the five-year period was achieved.
(20) There is nothing disproportionate about the decision. We accept that the purpose of the Directive is to promote the free movement of EU nationals within the Union. In many cases movement is not truly free if a person's close relatives do not benefit from similar provisions and the Directive intends to ensure that they do. The Directive is set in precise terms. It does not provide, for example, that a person will be entitled to a residence card after about five years' continuous lawful residence. The advantage of a precise term is that it provides for clarity and ease of decision making. The disadvantage is that people who fall just short of the prescribed amount, and who for all practical purposes are every bit as integrated in their country of residence as they would have been if their stay had been slightly longer, do not meet the requirements of the Directive. When a minimum term is fixed it is not disproportionate to refuse an application of someone who does not meet the minimum term. If there was some ambiguity in the meaning of "five years" the principle of proportionality might be a useful guide but that is not what has happened here.
(21) We accept that the applicant may very well be entitled to remain in the United Kingdom for other reasons. Certainly she has been given a "derivative residence card" valid for 5 years, but this does not impact on our decision. She cannot be granted permanent leave to reside on the basis of her husband's five years' continuous lawful residence because he did not reside continuously for five years.
(22) Ms Asanovic invited us to make a reference to the European Court of Justice. We decline to do that. We do not find that this cases raised a difficult point of interpretation. We find that the clear interpretation produces a result that is disagreeable to the appellant and that is quite a different point.
(23) It follows that although we allow the appeal to the extent of setting aside the decision of the First-tier Tribunal we substitute the decision dismissing the appellant's appeal against the decision of the Secretary of State.
Notice of Decision
(24) The appellant's appeal against the decision of the First-tier Tribunal is allowed. We substitute a decision dismissing the appellant's appeal against the decision of the Respondent for the reasons given above.

Signed

Jonathan Perkins
Judge of the Upper Tribunal

Dated 27 October 2016