OB v The Secretary of State for the Home Department

Immigration (European Economic Area) Regulations 2006, regulation 9(2)(a), does not require a United Kingdom national to have been working in the host EEA state immediately before returning to the United Kingdom. The provision should be interpreted broadly and consistently with EU free-movement rights and protection of family life.

There must be a sufficient link between the exercise of Treaty rights in the host state and the return. Whether that link remains is a fact-sensitive assessment. A period without the United Kingdom national's employment does not of itself break it, including interruption for maternity, child-rearing, temporary illness or involuntary unemployment.

The appellant, a Moroccan national, married a British citizen who lived and worked in Dublin. They lived together there before relocating to Northern Ireland. The appellant applied for a residence card as the spouse of a British national who had exercised Treaty rights.

An Immigration Judge accepted that the wife had worked in Dublin but dismissed the appeal because she had not worked during the 13 months immediately preceding her return. The Upper Tribunal considered whether regulation 9(2)(a) required employment immediately before return and whether the connection with the earlier exercise of Treaty rights had been broken.

1. Appeal allowed. The Immigration Judge made a material error of law by reading regulation 9(2)(a) as requiring employment immediately, or very shortly, before the United Kingdom national returned.

2. Regulation 9 gives domestic effect to the EU right identified in R v IAT and Surinder Singh ex parte Secretary of State for the Home Department, [1992] Imm AR 565. It must be interpreted broadly, in the light of the protection of family life and the need to avoid deterring exercise of Treaty rights. The reasoning in Eind supported that approach.

3. The Tribunal did not decide whether a spouse's right follows automatically, without any temporal limitation, whenever Treaty rights were once exercised. It held instead that there must be some link between the exercise of Treaty rights in the host state and the return to the United Kingdom.

4. That link subsisted here. There had been genuine and effective employment in Ireland, lawful residence and established family life there, and the spouse later sought and obtained work in Northern Ireland. The 13-month interruption in her employment did not break the link. Interruption for maternity, child-rearing, temporary illness or involuntary unemployment would likewise not, of itself, break it.

5. The decision below was set aside. The Tribunal remade the decision and directed the respondent to issue a residence card under Immigration (European Economic Area) Regulations 2006, regulation 17.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the Immigration Judge's decision, remade it, and directed issue of a residence card.
• Immigration Judge: dismissed the appeal against refusal of a residence card on 8 March 2010, despite accepting that the appellant's wife had worked in Dublin.