Permanent Right of Residence under the EEA Regulations requires continuous residence of 5 years
The case of EN (Continuity of residence - family member) Nigeria [2011] UKUT 55 (IAC)
This case was heard at the Upper Tribunal at Field House on the 1st of November 2010. The Tribunal considered the decision of the First Tier Tribunal dismissing the appellants appeal against the respondent's decision to refuse him permanent residence.
The appellant is a Nigerian national and married to a Swedish national in the UK in October 2003. He was issued a residence card for five years from 2004 until 2009. In Dece3mber 2008 he sought permanent leave to remain in the UK. He was refused by the Secretary of State for the Home Department (herein after referred to as the SSHD). The SSHD reasons for refusal stated that there was evidence his spouse had spent some periods in Sweden and that she had been paid in Swedish Kronas. Therefore, they alleged that he failed to show that he was the family member of a qualified EEA National.
Findings of First Tier Tribunal
The immigration judge found that the EA national spouse was working in the UK from 2003 until 2006 for the purposes of the 2006 Regulations. However, since 2006, the spouse had been spending a substantial amount of time in Sweden. The judge applied the test in reg. 3(2)(a) and was not satisfied that since 2006, the EEA national had not remained outside the UK for more than 6 months in total in any year. He concluded that continuity of residence had been broken. However, the judge did accept that the EEA national spouse had been working since 2006 in Sweden and in the UK and therefore that; she had been exercising her treaty rights in the UK. She was therefore considered to be a qualified member under reg. 6 however; the judge went on to dismiss the appeal having not been satisfied that the appellant could acquire permanent residence. He did have the right to reside in the UK as the family member under reg.14 (2).
Grounds for appeal
The appellants argued that the SSHD had never raised the issue of continuity of residence of his spouse before. The SSHD were aware of his wife's absences however, were only concerned with his residence in the UK and whether his wife remained a qualified person. The appellants also argued that continuous residence by the appellant's wife was not material.
Regulation 15
The Upper Tribunal first considered reg 15 (1)(b) of the Immigration (European Economic Area) Regulations 2006. This provides that absences from the UK should not be for a period of more than 6 months in total in any year (or 12 months if there are other factors such as pregnancy or illness).
Reg 15(1) a and b provides that the EEA national must have lived in the UK in accordance with the Regulations for a continuous period of 5 years and the same for the family member for the EEA national. It follows that b9oth the EEA National and non EEA national must have resided in the UK for a continuous period of 5 years.
The Upper Tribunal were therefore satisfied that the EEA national had not been continuously resident in the UK in accordance with the Regulations and therefore the appellant was unable to meet the requirements for permanent residence in that respect. The Immigration Judge had not erred in law in that respect. However, he had erred by failing to make adequate findings of fact when the appellant's wife was living in Sweden as opposed to the UK and consequently failed to deal with continuity of her residence. The appellant was granted permission to adduce further evidence.
Conclusion
Reg 15 requires both the EEA national and the family member to have resided in the UK for a continuous period of five years in order for the non EEA national to qualify for permanent residence.
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