EN v The Secretary of State for the Home Department

Under regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006, a non-EEA family member can acquire permanent residence only if both the family member and the Union citizen have resided in the United Kingdom in accordance with the Regulations for a continuous period of five years. The family member’s right is derived from residence with the Union citizen. A break in the Union citizen’s continuity of residence therefore prevents both from acquiring permanent residence.

Continuity must be assessed under regulation 3. A tribunal must make adequate findings on the periods during which the Union citizen was outside the United Kingdom before deciding whether continuity has been broken.

The Nigerian appellant married a Swedish national in the United Kingdom in 2003. He applied for a permanent residence document as her family member. The Secretary of State refused the application on the basis that the evidence did not establish five years’ continuous residence or that both spouses were qualified persons.

Immigration Judge Warner dismissed the appellant’s appeal. The judge found that the wife’s periods of work in Sweden since 2006 had broken the continuity of her residence, although he also found that she exercised Treaty rights in the United Kingdom and remained a qualified person.

The appellant appealed to the Upper Tribunal. The central issue was whether a family member could obtain permanent residence under regulation 15(1)(b) despite a break in the Union citizen spouse’s continuous residence.

1. The appeal succeeded on an error of law concerning the factual findings. The Upper Tribunal held that the Immigration Judge had failed to make adequate findings about when the appellant’s wife lived and worked in Sweden rather than the United Kingdom. The continuity issue could not properly be resolved without those findings.

2. The Tribunal nevertheless upheld the judge’s legal approach to regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006. Properly construed in the context of Article 16 of Directive 2004/38/EC, the provision requires both the non-EEA family member and the Union citizen to have resided in the United Kingdom in accordance with the Regulations for a continuous five-year period.

3. The family member’s right is derived from residence with the Union citizen. If the Union citizen’s continuity is broken after applying regulation 3, neither spouse can acquire permanent residence. This reading was consistent with the wording of regulation 15(1)(a) and (b), and did not improperly restrict the Union citizen’s free-movement rights.

4. The appellant’s contention that continuity of the wife’s residence had not been put in issue was rejected. The refusal decision had sufficiently identified the need for evidence that the EEA family member had exercised Treaty rights in the United Kingdom continuously for five years.

5. The hearing was adjourned for further findings of fact on continuity of residence. The appellant was permitted to file further oral or documentary evidence in accordance with directions.

• Upper Tribunal (Immigration and Asylum Chamber): Held that the Immigration Judge had erred in law by making inadequate findings on continuity of residence. It upheld the construction of regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 and adjourned the matter for further findings.
• Immigration Judge: Dismissed the appeal against the Secretary of State’s refusal, dated 11 February 2010, to issue a permanent residence document.