ZA v The Secretary of State for the Home Department

For regulation 9 of the Immigration (European Economic Area) Regulations 2016, a British citizen's residence and exercise of Treaty rights in a host Member State must be genuine, meaning real, substantive or effective. The inquiry is qualitative and fact-sensitive. It does not require transfer of the person's centre of life, exclusive residence, integration in the host State, or severance of home-State ties.

The motives for moving are not generally relevant beyond determining whether the person genuinely intended and did exercise Treaty rights. Work or self-employment must be genuine and effective, rather than marginal or ancillary. The appellant bears the burden of proving genuine residence. Where abuse under regulation 9(4) is alleged, the Secretary of State must prove both an absence of genuine exercise of free-movement rights and an artificial arrangement intended to obtain the advantage.

The appellant, an Afghan national, appealed against the dismissal by the First-tier Tribunal of her appeal from the refusal of a residence card under the Immigration (European Economic Area) Regulations 2016.

Her British-citizen husband had worked in Ireland for about a year. The appellant and her children joined him there. They returned to the United Kingdom after his employment ended. The Secretary of State contended that the Irish residence was not genuine and was intended to circumvent the domestic Immigration Rules.

The First-tier Tribunal held that the family's centre of life had not transferred to Ireland and found their residence not genuine. The central questions before the Upper Tribunal were the proper construction of regulation 9, the relevance of motive and the allocation of the burden where abuse of rights was alleged.

1. Appeal allowed. The First-tier Tribunal had made an error of law. Although it had directed itself correctly in part, it impermissibly conflated the qualitative question of genuine residence under regulation 9(3) with the parties' motivation, and in substance reversed the burden relating to abuse under regulation 9(4) (paras [76]–[78]).

2. Regulation 9 had to be construed consistently with EU law. A derived right on return depends upon a genuine exercise of free-movement rights in the host State. “Genuine” meant real, substantive or effective, not merely the opposite of false. The assessment was qualitative, fact-specific and concerned whether family life was created or strengthened during a residence of sufficient substance (paras [43]–[49], [73]–[75]).

3. There was no EU-law requirement to transfer the centre of life to the host State. Nor was there a requirement of integration, exclusive residence there, or severance of ties with the home State. Such matters could have limited evidential relevance, but the regulation 9(3) factors were non-exhaustive and were not a checklist (paras [49]–[60], [75]).

4. The appellant had shown genuine residence. Her husband had worked in Ireland, the family had lived there in rented accommodation for about a year, and the intended exercise of Treaty rights had occurred. Evidence suggesting an intention to circumvent domestic immigration rules could not defeat that conclusion under regulation 9(3) (paras [95]–[98]).

5. The Secretary of State had not established abuse under regulation 9(4)(a). Abuse required both an absence of genuine exercise of the free-movement right and an intention to obtain an advantage through an artificially constructed arrangement. The refusal letter did not establish those elements (paras [70], [99]–[100]). The decision was remade by allowing the appeal under the Immigration (European Economic Area) Regulations 2016.

• Upper Tribunal (Immigration and Asylum Chamber): appeal allowed; the First-tier Tribunal decision was set aside for error of law and remade in the appellant's favour.
• First-tier Tribunal: appeal against the refusal of a residence card was dismissed in a decision promulgated on 17 May 2018.