RM (Zimbabwe) v Secretary of State for the Home Department

A family member residing with a worker may acquire permanent residence under Article 17(3) of Council Directive 2004/38/EC where the worker acquired permanent residence under Article 17(1). The worker’s qualifying incapacity and residence may have occurred before the Directive was transposed, including under the predecessor Commission Regulation (EEC) No 1251/70. Completion of five years’ residence, or concurrent eligibility under Article 16, does not displace the preserved Article 17 route.

The family relationship need not have existed before, or on the precise date of, the worker’s acquisition of permanent residence. Potential abuse is addressed by Article 35 rather than by implying an additional temporal condition.

The Appellant, a Zimbabwean national, married a Spanish EEA national in June 2008. He had stopped working in 2002 because of permanent incapacity and died in January 2009. Her asylum claim was refused, and the AIT dismissed her appeal.

The Upper Tribunal held that the AIT’s failure to consider regulation 15(1)(d) of the Immigration (European Economic Area) Regulations 2006 was immaterial. The issue before the Court of Appeal was whether the Appellant acquired permanent residence on marriage under Article 17(3) of Council Directive 2004/38/EC, although the marriage took place after her husband had acquired his own permanent-residence right.

The appeal was allowed.

1. The question whether the deceased EEA national fell within Article 16 or Article 17 was a question of law for the court on essentially undisputed facts. The Court was not bound by the AIT’s characterisation of his status.
2. The husband had acquired a permanent right of residence under Article 2(1)(b) of Commission Regulation (EEC) No 1251/70 when he stopped work through permanent incapacity after more than two years’ continuous residence. The reasoning adopted in Lassal [2011] 1 CMLR 31 showed that such pre-transposition residence had to be given present effect under Article 17(1)(b) of Council Directive 2004/38/EC. His subsequent completion of five years’ residence did not extinguish or displace that Article 17 status. He could rely on the more favourable Community right.
3. Article 17(3) did not require the family member to have been a family member before the worker ceased work, or on the precise date when the worker acquired permanent residence. The words requiring the family member to be residing with the worker imposed no such temporal condition. Articles 3 of Commission Regulation (EEC) No 1251/70 and 10 of Council Regulation (EEC) No 1612/68 did not support the Respondent’s narrower construction.
4. The reasoning in Metock [2009] QB 318, that family-member rights should not be interpreted restrictively or subjected to conditions absent from the Directive, was applicable by analogy. Article 17 was exceptional and derogated from the integration objective, but strict interpretation did not justify disregarding preserved rights or adding a temporal precondition.
5. Any risk of abuse, including a deathbed marriage, was addressed by Article 35 of Council Directive 2004/38/EC, which permits measures against abuse or fraud. The Appellant therefore acquired permanent residence under Article 17(3) on marriage, without the residence requirements in Articles 12(2) or 16(2).

1. Court of Appeal (Civil Division): On 28 June 2013, allowed the appeal and held that the Appellant acquired permanent residence under Article 17(3) of Council Directive 2004/38/EC: [2013] EWCA Civ 775.
2. Upper Tribunal (Immigration and Asylum Chamber): On 17 December 2010, held that the AIT’s failure to consider regulation 15(1)(d) of the Immigration (European Economic Area) Regulations 2006 was immaterial and refused permission to appeal.
3. High Court: On 14 June 2010, ordered reconsideration of the appeal on the ground that regulation 15(1)(d) might apply.
4. Asylum and Immigration Tribunal: On 1 December 2009, dismissed the appeal against refusal of the asylum claim.