Iza Tom Idezuna v The Secretary of State for the Home Department

A non-EEA family member may acquire a permanent right of residence through five years’ continuous residence with an EEA national exercising Treaty rights, even if that qualifying period ended before the marriage later ended. The relevant five-year period may therefore be established by historical facts, rather than by the five years immediately before divorce.

Continuous residence by the family member is essential. If that issue has not previously been raised, procedural fairness requires that the person be given a proper opportunity to produce evidence. Permitted absences under regulation 3(2) do not break continuity. Once acquired, permanent residence is lost only after absence from the United Kingdom for more than two consecutive years.

The appellant, a Nigerian national, married a Portuguese citizen in 2004 and held a residence card as her family member. After their divorce, he applied for confirmation of a permanent right of residence.

The Secretary of State refused the application. The First-tier Tribunal dismissed the appeal, treating the five years immediately before the divorce as decisive and finding that continuous residence by the appellant had not been proved. The Upper Tribunal set that decision aside for material error of law and remade the appeal after receiving further evidence. The central issue was whether the appellant had already acquired permanent residence through an earlier five-year period of residence with his spouse while she exercised Treaty rights.

1. Appeal allowed. The First-tier Tribunal materially erred in law. It wrongly confined consideration to the five years immediately before the divorce and thereby treated a retained right of residence as the appellant’s only possible route to permanent residence.

2. Under Immigration (European Economic Area) Regulations 2006, a non-EEA family member can acquire permanent residence after five years’ continuous residence in the United Kingdom with an EEA national who has exercised Treaty rights throughout that period. A qualifying period may arise from historical facts and may pre-date the ending of the marriage. In light of Lassal (European citizenship) [2010] C-162/09, qualifying periods may commence before Directive 2004/38/EC entered into force.

3. The evidence established that the appellant’s spouse had exercised Treaty rights continuously from the marriage until the divorce. Cohabitation throughout the period was not required; it was sufficient that the spouses were present in the United Kingdom, applying PM (EEA - spouse -“residing with”) Turkey [2011] UKUT 90 (IAC).

4. The appellant’s own continuous residence was an essential requirement. It was procedurally unfair for the First-tier Tribunal to rely on the absence of proof of that matter without giving him an opportunity to address it. On remaking, his evidence and the respondent’s concession established continuous residence. His short absences did not interrupt continuity under regulation 3(2).

5. The appellant acquired permanent residence on 23 April 2009 under regulation 15(1)(b). He had not subsequently been absent for more than two consecutive years, so the right had not been lost under regulation 15(2). The appeal was allowed.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal’s decision was set aside for material error of law. The Upper Tribunal remade the decision and allowed the appeal.
• First-tier Tribunal (Immigration and Asylum Chamber): The appeal against the refusal of a permanent-residence card was dismissed after a hearing on 4 January 2011.