TM v Secretary of State for the Home Department

A transitional provision preserving the former meaning of an EEA national must be applied before relying on McCarthy v SSHD [2012] EUECJ C-434/09. A dual British and EEA citizen may therefore remain an EEA national for the limited purpose of a family member’s rights under the 2006 Regulations where the transitional criteria are met.

Under regulation 6(2)(a) of the Immigration (European Economic Area) Regulations 2006, a worker temporarily unable to work through illness retains worker status. Receipt of ESA or DLA is not required. A subsequent return to sustained employment may show that the absence was temporary, provided reliable evidence establishes that illness caused the absence.

The appellant, a Zimbabwean national, sought a residence card confirming a permanent right of residence as the spouse of CM, an Irish and British citizen. He contended that CM had exercised Treaty rights for the required five-year period.

The First-tier Tribunal dismissed the appeal. It treated McCarthy v SSHD [2012] EUECJ C-434/09 as preventing CM from being an EEA national and also found insufficient evidence that she had retained worker status during an absence from work caused by illness.

The Upper Tribunal considered whether transitional provisions preserved CM’s EEA-national status and whether she retained worker status between February and November 2013.

1. The appeal was allowed. The First-tier Tribunal had made an error of law. Its decision was set aside and remade.

2. The transitional provisions in Schedule 3 to the Immigration (European Economic Area) (Amendment) Regulations 2012 applied. The appellant had held a valid residence card on the relevant date and no terminating event was shown. CM therefore continued to be regarded as an EEA national for the appellant’s position under the Immigration (European Economic Area) Regulations 2006. The First-tier Tribunal had failed to engage with those provisions. Its application of McCarthy v SSHD [2012] EUECJ C-434/09 was consequently erroneous and not determinative.

3. Regulation 6(2)(a) required the correct inquiry: whether CM was temporarily unable to work because of illness. It did not require proof that she received ESA or DLA. The later return to work, considered in light of Samin v Westminster [2012] EWCA Civ 1468, supported the conclusion that the absence was temporary.

4. The GP’s letter reliably established that severe depression prevented CM from working between February and November 2013. She therefore retained worker status throughout that period. The appellant had continuously resided with a qualified person for the relevant period and acquired a permanent right of residence under regulation 15(1)(b).

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the First-tier Tribunal’s decision for error of law, and remade it by allowing the appeal under the Immigration (European Economic Area) Regulations 2006.
• First-tier Tribunal: Judge S T Fox dismissed the appeal against the refusal to issue a residence card.