THE SECRETARY OF STATE FOR THE HOME DEPARTMENT v FB

For the purposes of Immigration (European Economic Area) Regulations 2006, a worker is temporarily unable to work through illness or accident where the inability is not permanent. The regulation imposes no maximum duration of temporary inability. A prolonged period may therefore preserve worker status, provided the inability is genuine and the person has not merely chosen to abstain from work.

The restriction concerning an unreasonable burden on social assistance in reg 13(3)(b) applies only to the initial three-month right of residence. It does not qualify the extended right of residence relied upon by a worker who remains a qualified person.

The Secretary of State appealed against Immigration Judge Oxlade’s decision allowing FB’s appeal against the refusal of a permanent residence card under reg 15(1)(b) of the Immigration (European Economic Area) Regulations 2006.

FB was the Ugandan daughter and family member of a Swedish national. The judge found that her father had worked in the United Kingdom until illness prevented him from working in 2004. He remained unable to work until beginning study in February 2008. The judge treated that inability as temporary, so that he retained worker and qualified-person status for the requisite continuous period.

The Secretary of State contended that the period was too long to be temporary and that the father had become an unreasonable burden on social assistance. The central issue was the meaning of temporary inability to work under reg 6(2)(a).

1. The Secretary of State’s appeal was dismissed. The Immigration Judge made no error of law and the decision allowing FB’s appeal stood.

2. Under reg 6(2)(a) of the Immigration (European Economic Area) Regulations 2006, inability to work through illness or accident is temporary if it is not permanent. The ordinary meanings of “temporary” and “permanent”, the wording of regs 5(3) and 6(2)(a), and the corresponding provisions of Council Directive 2004/38/EC supported that construction. The regulation did not prescribe a finite period of incapacity. A four-year period of genuine illness could therefore be temporary.

3. The evidence established a genuine inability to work. The father’s condition was eventually stabilised and relieved sufficiently by medication for him to commence study. The Tribunal added that prolonged temporary inability would not be established where a person who left work because of illness later abstained from working voluntarily.

4. As the father retained worker status, he remained a qualified person and acquired permanent residence after five years under reg 15(1)(a). FB, having resided with him as his family member, consequently acquired permanent residence under reg 15(1)(b).

5. Reg 13(3)(b) concerned only the initial right of residence under reg 13 and did not apply. The proposed challenge concerning the father’s later status as a student under reg 4(1)(d) was immaterial, since any relevant permanent right had already accrued.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was dismissed and the Immigration Judge’s decision allowing FB’s appeal was left standing.
• First-tier Tribunal (Immigration Judge Oxlade): Allowed FB’s appeal against refusal of a permanent residence card under reg 15(1)(b) of the Immigration (European Economic Area) Regulations 2006.