Secretary of State for the Home Department v Ojo

A non-EE family member can acquire permanent residence under regulation 15(1)(b) only after five years of continuous residence in a qualifying status and in accordance with the Immigration (European Economic Area) Regulations 2006. Periods spent in different capacities cannot be aggregated to overcome a break in qualifying status. Integration is relevant and has territorial, temporal and qualitative elements, but it is not an independent route to permanent residence. Provisions permitting short absences cannot be extended by analogy to a period when dependency, and therefore the qualifying status, has ceased.

The respondent, a Nigerian national, entered the United Kingdom as a family member of her Austrian mother, an EEA national. She later left the family home to work, stopped working because of pregnancy complications, and resumed living with her mother. Her application for a residence card was refused because she was no longer within the relevant family-member category and had not shown continuous dependency.

The First-tier Tribunal dismissed her appeal under the Regulations. The Upper Tribunal set that decision aside and allowed the appeal, holding that the period of independence was too short to interrupt qualifying residence by analogy with the rules on temporary absences. The Secretary of State appealed. The central issue was whether a break in dependency could be treated as a temporary absence for the purpose of acquiring permanent residence.

Moore-Bick LJ gave the judgment, with which Lewison and Kitchin LJJ agreed. The appeal was allowed, the Upper Tribunal’s decision was set aside, and the respondent’s appeal against the Secretary of State’s decision was dismissed.

1. Regulation 15(1)(b) requires a non-EE family member to have resided with the EEA national in accordance with the Regulations for a continuous period of five years. The requirement is one of continuous residence in a qualifying status. A person cannot aggregate periods spent in different capacities to bridge a break in that status.

2. The relevant requirements of the Directive and the Regulations must be applied strictly. Legal residence means residence satisfying the applicable conditions, rather than mere lawful presence or possession of a residence permit. A residence permit evidences rights acquired under the relevant legal instruments but does not itself create them. This approach was supported by Alarape v Secretary of State for the Home Department ([2013] 1 W.L.R. 2883), Ziolkowski v Land Berlin ([2013] 3 C.M.L.R. 1013) and Ahmad v Secretary of State for the Home Department ([2014] EWCA Civ 988).

3. The integration objective underlying permanent residence includes territorial, temporal and qualitative elements. It requires a sufficient degree of integration, but integration alone cannot replace the Directive’s and Regulations’ definition of the persons entitled to acquire permanent residence. Onuekwere v Secretary of State for the Home Department ([2014] 1 W.L.R. 2420) did not establish a basis for disregarding the qualifying-status requirements.

4. The reasoning in Secretary of State for Work and Pensions v Lassal ([2011] C.M.L.R. 31) and Secretary of State for Work and Pensions v Dias ([2011] 3 C.M.L.R. 40) concerned temporary absence or residence without an underlying right after a period of qualifying residence. That reasoning did not justify treating a change in status as an absence. Residence and status are distinct concepts, so regulation 3(2)(a), transposing article 16(3), could not be applied by analogy.

5. The respondent’s Article 8 appeal could not stand because that issue had not been applied for or considered by the Secretary of State. The respondent’s appeal was therefore dismissed.

1. Court of Appeal (Civil Division): In [2015] EWCA Civ 1301, the appeal was allowed, the Upper Tribunal’s decision was set aside, and the respondent’s appeal was dismissed.
2. Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge Harris set aside the First-tier Tribunal’s decision and, in a determination promulgated on 7 May 2014, allowed the appeal under the Immigration (European Economic Area) Regulations 2006 and on Article 8 grounds. The Tribunal treated the short period of independence as analogous to a temporary absence.
3. First-tier Tribunal: The appeal under the Regulations was dismissed on the basis that the respondent had not remained continuously dependent on her mother. The Tribunal also purported to determine an Article 8 appeal.