Mizan Mahder Weldemichael v The Secretary of State for the Home Department

An EEA-national woman retains continuity of residence under the Immigration (European Economic Area) Regulations 2006 while absent from work or job-seeking because of the physical constraints of late pregnancy and childbirth, provided the requirements derived from Jessy St Prix v DWP [2014] CJEU C-507/12 are met.

She must have been a worker or jobseeker when the period began. It should ordinarily begin no earlier than 11 weeks before the expected confinement, unless cogent evidence establishes earlier physical constraint. It must not exceed 52 weeks and she must return to work. Time within such a period counts towards five years’ continuous lawful residence for permanent residence under regulation 15.

Two appeals against refusals of residence cards as confirmation of permanent residence were heard together. The first appellant was a Dutch national. The second appellant was a Nigerian national relying on the residence of his Lithuanian wife.

In each appeal, the First-tier Tribunal had dismissed the appeal. The central question was whether time away from work or job-seeking because of pregnancy interrupted the EEA national woman’s continuous lawful residence under the Immigration (European Economic Area) Regulations 2006.

The Upper Tribunal considered the effect of Jessy St Prix v DWP [2014] CJEU C-507/12, including the permissible beginning and duration of the protected period, the need to return to work, and whether that period counts towards permanent residence.

1. Both appeals were dismissed. The First-tier Tribunal had made no material error of law in dismissing either appeal, and its decisions were upheld.

2. The Tribunal applied Jessy St Prix v DWP [2014] CJEU C-507/12. A woman who stops working or job-seeking because of the physical constraints of late pregnancy and childbirth does not thereby leave the employment market if she returns to work within a reasonable period. The protection is not confined to the express categories in article 7(3) of the Citizenship Directive.

3. For the purposes of the Immigration (European Economic Area) Regulations 2006, the protected period requires that the woman was a worker or jobseeker when it began; began no more than 11 weeks before the expected date of confinement, unless cogent evidence proved earlier physical constraint; lasted no more than 52 weeks; and ended with a return to work. The assessment remains fact-sensitive, but domestic maternity leave made a period shorter than 52 weeks inappropriate as the general limit adopted by the Tribunal.

4. Status is not restored only retrospectively on a return to work. During a potential protected period there is a presumption that the woman has not left the employment market, rebuttable by clear evidence that she did not intend to return. A later supervening event may require a careful assessment of when that intention changed.

5. Time spent within a qualifying period counts towards continuous lawful residence and permanent residence under regulation 15. Excluding it would conflict with the broad Treaty concept of worker and would produce discriminatory treatment.

6. The first appellant returned to work too late. Her claimed absence would have required a protected period of nearly two years and no sufficient explanation justified it. The second appellant’s wife had stopped work more than 20 weeks before the birth, was not shown to have been a qualified person at the start of the relevant 11-week period, and never returned to work. Neither appeal could therefore succeed.

• Upper Tribunal (Immigration and Asylum Chamber): Both appeals were dismissed and the First-tier Tribunal decisions were upheld.
• First-tier Tribunal: Dismissed the first appellant’s appeal against the refusal of a residence card in a determination promulgated on 11 May 2013.
• First-tier Tribunal: Dismissed the second appellant’s appeal against the refusal of a residence card in a determination promulgated on 25 October 2013.