PM v The Secretary of State for the Home Department

For the permanent-residence right in regulation 15(1)(b), a non-EEA family member must have resided in the United Kingdom during the relevant five years while the EEA national also resided there in accordance with the Regulations. The words “with the EEA national” concern residence in the United Kingdom. They do not require the spouses to have lived throughout in a common household.

A genuine marriage is not a marriage of convenience merely because the spouses live separately. Subject to the family member’s qualifying residence and the subsistence of the marriage, separation from the common home does not prevent acquisition of permanent residence under the Immigration (European Economic Area) Regulations 2006.

The appellant, a Turkish national, married an Italian worker exercising Treaty rights in the United Kingdom. She had held a residence card as his spouse, but the spouses ceased cohabiting in December 2007. They remained married and maintained contact concerning their child.

An Immigration Judge upheld the refusal of a permanent residence card under regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006. The judge found that the Italian spouse had worked for the required period, but held that the appellant had not resided with him for five years because they had ceased sharing a home. The Upper Tribunal considered whether “resided in the United Kingdom with the EEA national” requires common-household residence.

1. Appeal allowed. The Immigration Judge made a material error of law. The decision was set aside and remade on the factual findings already made. The appellant qualified for permanent residence and was entitled to a permanent residence card.

2. Regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 requires the non-EEA family member and the EEA national each to have resided in the United Kingdom for a continuous five-year period in accordance with the Regulations. The additional words “with the EEA national” identify the place of residence. They do not impose a requirement of living in the same house or household.

3. The text, structure and context of the Regulations supported that construction. The provision applies to family members generally, including children and dependent relatives, so it cannot sensibly mean marital or conjugal cohabitation. A common-home requirement would also create an unjustified and anomalous distinction between EEA and non-EEA family members.

4. The Tribunal treated Diatta v Land Berlin [1985] ECR 567 as highly influential, though not decisive because it concerned different legislation and an extended rather than permanent right of residence. The construction was reinforced by Article 16(2) of Directive 2004/38/EC, read in light of its purpose and the equal-treatment indicators in the Directive.

5. The fact that spouses live apart may justify inquiry into whether a relationship is genuine. It cannot alone establish a marriage of convenience. On the facts found, the marriage was genuine and undissolved, and both parties had resided in the United Kingdom for the required period.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the Immigration Judge’s decision for material error of law, and directed that a permanent residence card be issued.
• First-tier Tribunal: Immigration Judge Harmston, on 16 March 2010, upheld the refusal of 16 January 2010 under regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006.