Secretary of State for the Home Department v MAH

A person born in Ireland before the 2001 amendments to Irish nationality law was an Irish citizen from birth under the original section 6 of the Irish Nationality and Citizenship Act 1956. A passport application was not required to complete that status.

An Irish national who ceased work in the United Kingdom through permanent incapacity, after the required period of residence, could acquire permanent residence under regulations 5 and 15 of the Immigration (European Economic Area) Regulations 2006. The Regulations could be applied to historic events where the entitlement was determined under them at the date of decision. Regulation 5 imposed no requirement that the EEA national had moved between Member States. A non-EEA spouse of such a worker acquired permanent residence on marriage.

The claimant, a Canadian national, applied for a residence card following her marriage to Mr GO, who was born in Northern Ireland and was both British and Irish. The Immigration Judge allowed her appeal against the Secretary of State’s refusal under the Immigration (European Economic Area) Regulations 2006.

The Judge found that Mr GO had stopped working in 1992 because permanent ill-health made him incapable of work, after living continuously in the United Kingdom for more than two years. The Secretary of State appealed, contending that he did not become Irish until he obtained an Irish passport in 2008. The Upper Tribunal considered his nationality in 1990–1992, the application of the 2006 Regulations to those historic facts, and whether permanent residence required movement between Member States.

1. The Secretary of State’s appeal succeeded only to the extent that the Immigration Judge had made an error of law. The decision was set aside because the Judge treated Mr GO as merely entitled to claim Irish citizenship, rather than deciding his actual status under the applicable Irish law. The Tribunal remade the decision and allowed the claimant’s underlying appeal under the Regulations.

2. Under the original section 6 of the Irish Nationality and Citizenship Act 1956, Mr GO was an Irish citizen from birth. His birth in Northern Ireland fell within the statutory reference to Ireland. Obtaining an Irish passport in 2008 did not create or complete an entitlement that had already existed. The Tribunal did not decide the position of a person whose claim depended upon the 2001 amendments.

3. The unchallenged factual findings established that Mr GO had ceased work in 1992 because of permanent incapacity, after the requisite continuous residence. The current Regulations could determine entitlement by reference to those historic events. Their relevant provisions reflected an earlier Community-law right, and the approach was supported by Lassal Case C-162/09.

4. Regulation 5 did not require an EEA national to have moved from one Member State to another. McCarthy v Secretary of State for the Home Department [2008] EWCA Civ 641 did not govern this case. It concerned the separate requirement in regulation 15(1)(a) that a person had resided in accordance with the Regulations, whereas regulation 5(3) contained no equivalent condition.

5. Mr GO was therefore a worker who had ceased activity within regulations 5(1) and 5(3), and held permanent residence under regulation 15(1)(c). On her marriage, the claimant acquired permanent residence as his family member under regulation 15(1)(d). Their later separation was immaterial because she remained his spouse under regulation 7(1)(a). She was entitled to a residence card.

• Upper Tribunal (Immigration and Asylum Chamber): The Tribunal set aside the Immigration Judge’s determination for an error of law, but remade the decision so as to allow the claimant’s appeal under the Immigration (European Economic Area) Regulations 2006.
• Immigration Judge: Allowed the claimant’s appeal against the Secretary of State’s refusal of a residence card dated 2 February 2010.