England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Deputy Upper Tribunal Judge Harris
IA/06986/2013

		Royal Courts of Justice Strand, London, WC2A 2LL
		16 December 2015

Lord Justice Moore-Bick :

1. This is an appeal by the Secretary of State for the Home Department against a decision of the Upper Tribunal which held that the respondent, Jovita Ojo, had acquired a permanent right of residence in this country under the Immigration (European Economic Area) Regulations 2006 ("the Regulations"). The Regulations implement Directive 2004/38/EC, sometimes known as the 'Citizenship Directive'.
2. Mrs. Ojo is a national of Nigeria, who came to this country in July 2007 with her three sisters and her mother, a national of Austria, who came here in order to work. She was then aged 18 and was entitled to reside in this country as a family member of an EEA national exercising her Treaty rights.
3. Mrs. Ojo continued to live with her mother until January 2009 when she moved to Manchester to take up employment as a care assistant in a residential home. In early 2010 she became pregnant and in May of that year she found it necessary to give up work as a result of complications with the pregnancy. Her first child was born in September 2010 and she moved back to live with her mother in November of that year, her mother having by that time moved from Surrey, where she had been living, to Manchester. A second child was born in November 2012. Mrs. Ojo has been unable to work since May 2010 and her husband has no immigration status in this country.
4. The rights of EEA nationals to reside in this country are governed by regulation 15, the material parts of which for present purposes provide as follows:

"15.— Permanent right of residence

(1) The following persons shall acquire the right to reside in the United Kingdom permanently—

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

. . . "

The important words for present purposes are "in accordance with these Regulations".

5. By virtue of regulation 7(1), a family member for the purposes of the Regulations includes a person who is a direct descendant of an EEA national who is aged under 21 or is dependent on him.
6. On 15^th April 2011 Mrs. Ojo and her husband applied to the Secretary of State for residence cards on the grounds that she was financially dependent on her mother, but their applications were refused on the grounds that Mrs. Ojo, who is not herself an EEA national, was no longer a member of her mother's family, having reached the age of 21, and had failed to show that she had been throughout, and continued to be, financially dependent on her. Accordingly, in the view of the Secretary of State, she did not fall within the scope of regulation 15(1)(b). In a letter providing supplementary reasons for her decision the Secretary of State pointed out that her decision not to issue residence cards to Mrs. Ojo and her husband did not require them to leave the UK if they could demonstrate that they had some other right to reside here under the Regulations. She also drew attention to the fact that they had not sought to obtain leave to remain on the basis of their rights under Article 8 of the European Convention on Human Rights, but that they could do so if they made a separate application, for which a fee would be payable.
7. Mrs. Ojo appealed to the First-tier Tribunal. The tribunal noted that she had left home in 2009 in order to work in Manchester and that she had lived an independent existence until she had been forced to stop work in May 2010. It therefore held that she had not been continuously dependent on her mother and had therefore ceased to be a member of her family during that period. As a result, she could not bring herself within regulation 15(1)(b) because at the date of her application she had not lived with her mother as one of her family members for a continuous period of five years. The tribunal also purported to consider and dismiss an appeal on Article 8 grounds, despite the fact that no application on those grounds had been made to, or considered by, the Secretary of State.
8. Mrs. Ojo then took her case to the Upper Tribunal. Deputy Upper Tribunal Judge Harris was persuaded that the First-tier Tribunal had made an error of law, because when dealing with family membership it had referred throughout its decision to regulation 8 instead of regulation 7, which, he thought, could have affected the whole decision. He therefore set aside the decision of the First-tier Tribunal in order to enable the Upper Tribunal to re-make the decision itself, but directed that the findings of fact (which were not in dispute) should be preserved. He reserved the matter to himself.
9. In a determination promulgated on 7^th May 2014 Judge Harris allowed Mrs. Ojo's appeal both under the Regulations and on Article 8 grounds. He accepted that she and her husband, as well as their children, were all financially dependent on her mother and recorded that it was accepted by the Secretary of State that, save for the period during which Mrs. Ojo had been living alone in Manchester, there had been continuity of family life dependency which would satisfy the Regulations. However, Judge Harris felt bound to accept that between January and May 2010 Mrs. Ojo had not been dependent on her mother. Nonetheless, applying by analogy the provisions of article 16(3) of the Directive (transposed by regulation 3(2)(a)), which he considered to be an approach permitted by the decision of the Court of Justice of the European Union in Secretary of State for Work and Pensions v Dias (Case C325-09) [2011] 3 CMLR 40, he held that a break in dependency of less than 6 months did not interrupt Mrs. Ojo's residence so as to prevent her from acquiring a permanent right to residence under regulation 15(1)(b). It is against that decision that the Secretary of State now appeals. It is accepted by Mr. Berry on behalf of Mrs. Ojo that the tribunal's decision that her appeal should be allowed on Article 8 grounds could not stand, since the issue was not before it.
10. On behalf of the Secretary of State Miss Leventhal submitted that Judge Harris had misunderstood the decision in Dias. Far from supporting Mrs. Ojo's case, it undermined it, because it proceeded on the basis that a break in status (as opposed to residence) cannot be disregarded when calculating the period of continuous residence required for the purpose of Article 16 (regulation 15). Mr. Berry, on the other hand, submitted on behalf of Mrs. Ojo that the decision in Dias reflects the intention of the Court of Justice to apply the concept of integration, which underpins the acquisition of a permanent right of residence, when considering the effect of short breaks in other qualifying factors, such as economic activity or (as in this case) economic dependency.
11. In Secretary of State for Work and Pensions v Lassal (Case C-162/09) [2011] C.M.L.R. 31 Ms. Lassal, a French national, was present in the UK as a worker from January 1999 until February 2005, when she returned to France for ten months. From January to November 2006 she received Jobseeker's Allowance. In November 2006 she applied for income support, which was refused on the grounds that she was not entitled to reside in the UK. The question arose whether a continuous period of residence completed before 30^th April 2006, the date for transposition of the Directive, should be taken into account when calculating the period of residence required in order to acquire a permanent right of residence, and whether temporary absences which occurred before that date after a continuous period of five years' legal residence prevented a citizen of the Union from acquiring such a right. The Court considered that it would be contrary to the purposes of the Directive to hold that only periods of residence after 30^th April 2006 could be taken into account, because that would deprive citizens of the benefits of residence under previous EU instruments. The acquisition of a right of permanent residence was based on the concept of integration and therefore a continuous period of five years' residence completed before or after the date of transposition had to be taken into account. Consistently with that, the court held that a permanent right of residence was not lost if there were a period of two years' absence from the host state after completing five years' continuous residence but before the transposition date.
12. In Dias the court had to consider how to treat a period of residence completed before the transposition date of Directive 2004/38/EC and any subsequent period of residence in the host member state while not exercising Treaty rights which had occurred before that date. D, a Portuguese national, entered the UK in 1998. In 2000 she was given a residence permit reflecting her right of residence under Directive 68/360. She worked in this country until 2002 when she went on maternity leave until April 2003. She was then unemployed until April 2004, when she began working again. In March 2007 she applied for income support which was granted on the grounds that her period of residence from April 2003 to April 2004 was a valid period of residence for the purposes of the right of permanent residence, but could not be taken into account under Art. 16 of Directive 2004/38 because it ended before the transposition date. The question for the CJEU (reformulated in the light of Lassal) was whether a period of residence completed solely on the basis of a residence permit issued under Directive 68/360, but without meeting the conditions governing entitlement to a right of residence, affected the acquisition of the right of permanent residence if it occurred after a period of five years' residence which had ended before the transposition date. The court held that a residence permit does not of itself create rights; it merely evidences rights acquired under the Treaty or the measures adopted for its implementation. However, following Lassal, it held that a period of five years' continuous residence completed in accordance with earlier EU law instruments before the transposition date of Directive 2004/38 had to be taken into account for the purposes of acquiring a permanent right of residence. Consistently with that, it also held that by necessary implication periods of less than two consecutive years residing in the host member state while no longer exercising Treaty rights which occurred after five years' continuous residence but before the transposition date did not affect the acquisition of a permanent right of residence.
13. The important part of the court's reasoning for present purposes is to be found in paragraphs 58-65, which, given their importance to the arguments advanced on the appeal, I think is worth citing in full:

"58. Inasmuch as periods of residence of a Union citizen in a host Member State which were completed on the basis solely of a residence permit validly issued under Directive 68/360, but without the conditions governing entitlement to any right of residence having been satisfied, cannot be regarded as having been completed legally for the purposes of the acquisition of the right of permanent residence under art.16(1) of Directive 2004/38, the question then arises as to what the effect is on that acquisition of such a period of residence which occurred before April 30, 2006 and after a period of five years' continuous legal residence already completed prior to that date.

59. In that connection, it should be borne in mind, first of all, that the Court has already ruled that art.16(4) of Directive 2004/38 refers to loss of the right of permanent residence by reason of absences of more than two consecutive years from the host Member State and that such a measure may be justified because, after an absence of that duration, the link with the host Member State is loosened (see Lassal [2011] 1 CMLR 31 at [55]).

60. Next, the Court has also held that that provision falls to be applied independently of whether the periods of residence in question were completed before or after April 30, 2006, for the reason that, since residence periods of five years completed before that date must be taken into account for the purpose of acquisition of the right of permanent residence provided for in art.16(1) of Directive 2004/38, non-application of art.16(4) thereof to those periods would mean that the Member States would be required to grant that right of permanent residence even in cases of prolonged absences which call into question the link between the person concerned and the host Member State ( Lassal [2011] 1 CMLR 31 at [56]).

61. Finally, the Court has held that the application of art.16(4) of Directive 2004/38 to continuous periods of five years' legal residence completed before April 30, 2006 implies, in particular, that absences from the host Member State of less than two consecutive years occurring after those periods but before that date are not such as to affect the link of integration of the Union citizen concerned and, accordingly, those absences are not such as to affect the acquisition of the right of permanent residence pursuant to art.16(1) of Directive 2004/38 ( Lassal [2011] 1 CMLR 31 at [57] and [58]).

62. Such reasoning must also be applied by analogy to periods of residence completed on the basis solely of a residence permit validly issued pursuant to Directive 68/360, without the conditions governing entitlement to any right of residence having been satisfied, which occurred before April 30, 2006 but after a continuous period of five years' legal residence completed prior to that date.

63. Even though art.16(4) of Directive 2004/38 refers only to absences from the host Member State, the integration link between the person concerned and that Member State is also called into question in the case of a citizen who, while having resided legally for a continuous period of five years, then decides to remain in that Member State without having a right of residence.

64. In that regard, it should be noted, as the A.G. has stated in points AG106 and AG107 of her Opinion, that the integration objective which lies behind the acquisition of the right of permanent residence laid down in art.16(1) of Directive 2004/38 is based not only on territorial and time factors but also on qualitative elements, relating to the level of integration in the host Member State.

65. As the situations are comparable, it follows that the rule laid down in art.16(4) of Directive 2004/38 must also be applied by analogy to periods in the host Member State completed on the basis solely of a residence permit validly issued under Directive 68/360, without the conditions governing entitlement to a right of residence of any kind having been satisfied, which occurred before April 30, 2006 and after a continuous period of five years' legal residence completed prior to that date."

14. In these paragraphs the court was concerned with the effect to be given for the purposes of the Directive to a period of residence in a host member state of a person who holds a residence permit but without in fact complying with the conditions for lawful residence. The first question was whether holding a residence permit itself confers a right to reside. The court had already held that it does not, because the issue of a residence permit does not itself confer rights, it merely evidences their existence: see paragraph 48. As a result, it is possible to regard residence otherwise than in accordance with the conditions governing an entitlement to a right of residence as 'unlawful'. The next question, therefore, is how a period of 'unlawful' residence is to be treated for the purposes of the Directive. The court held that it is to be treated as analogous to absence, with the result that, if it lasts for less than two consecutive years, it does not break the link resulting from the degree of integration derived from five years' continuous residence. It follows as a matter of logic, however, that if such a period of unlawful residence continued for more than two years, it would have that effect. That is because the nature of the integration which the Directive is intended to promote has a qualitative element as well as territorial and time elements: see paragraph 64.
15. Mr. Berry sought to argue that these paragraphs demonstrate the overriding importance of integration as the primary purpose of the Directive and as such provide a sufficient basis for applying Art. 16(3) by analogy to breaks in the requirement for continuous residence in a qualifying capacity. Accordingly, he submitted, they justify treating breaks in qualifying status in the same way as breaks in the qualifying period of residence, so that independence for less than two consecutive years would not have the effect of interrupting a longer period of dependency which was capable of supporting residence in a qualifying capacity. In support of that submission he drew our attention to the decision in Onuekwere v Secretary of State for the Home Department (Case C-378/12) [2014] 1 WLR 2420.
16. In that case the applicant, a third-country national, obtained a temporary residence permit allowing him to reside in the United Kingdom as the spouse of a Union citizen exercising Treaty rights. He was subsequently convicted of a number of offences and served two terms of imprisonment. In 2010 he applied for a residence card. The Secretary of State refused the application. When the matter reached the Upper Tribunal it referred to the CJEU the question whether under article 16(2) of the Directive a period of imprisonment in the host member state could constitute legal residence for the purposes of the acquisition of a right of permanent residence, and, if not, whether a person who had served a period of imprisonment could aggregate periods of residence before and after his imprisonment for the purposes of calculating the period of five years needed to establish a permanent right of residence under the Directive.
17. The court held that to allow him to aggregate periods in the way he proposed would be contrary to the intention of the Directive. It said this:

24. Secondly, it must be recalled that, as recital (17) in the Preamble to Directive 2004/38 states, the right of permanent residence is a key element in promoting social cohesion and was provided for by that Directive in order to strengthen the feeling of Union citizenship. The European Union legislature accordingly made the acquisition of the right of permanent residence pursuant to article 16(1) of Directive 2004/38 subject to the integration of the citizen of the Union in the host member state: see Secretary of State for Work and Pensions v Lassal (Child Poverty Action Group intervening) (Case C-162/09) [2010] ECR I-9217; [2011] All ER (EC) 1169, paras 32 and 37.

25. Such integration, which is a precondition of the acquisition of the right of permanent residence laid down in article 16(1) of Directive 2004/38, is based not only on territorial and temporal factors but also on qualitative elements, relating to the level of integration in the host member state (see Secretary of State for Work and Pensions v Dias (Case C-325/09) [2011] ECR I-6387, para 64), to such an extent that the undermining of the link of integration between the person concerned and the host member state justifies the loss of the right of permanent residence even outside the circumstances mentioned in article 16(4) of Directive 2004/38: see Dias's case, paras 59, 63 and 65.

26. The imposition of a prison sentence by the national court is such as to show the non-compliance by the person concerned with the values expressed by the society of the host member state in its criminal law, with the result that the taking into consideration of periods of imprisonment for the purposes of the acquisition by family members of a Union citizen who are not nationals of a member state of the right of permanent residence for the purposes of article 16(2) of Directive 2004/38 would clearly be contrary to the aim pursued by that Directive in establishing that right of residence.

27. In view of all the foregoing considerations, the answer to the first question is that article 16(2) of Directive 2004/38 must be interpreted as meaning that the periods of imprisonment in the host member state of a third country national, who is a family member of a Union citizen who has acquired the right of permanent residence in that member state during those periods, cannot be taken into consideration of the context of the acquisition by that national of the right of permanent residence for the purposes of that provision."

18. The decision serves to underline the fact that in order to acquire a right of permanent residence a person must live in a way that reflects a sufficient degree of integration into the host member state, but it does not follow that integration is sufficient in itself to enable a third-country national to acquire a permanent right of residence. If it were otherwise, the provisions of the Directive defining the classes of persons who can acquire such a right would be otiose. Neither Dias nor Onuekwere touches directly on the question now before this court, but in each of them the Court made certain comments which tend to support the conclusion that it is the continuity of legal residence which satisfies the need for integration. I emphasise the word "legal" in this context, because the concept of legal residence connotes residence in accordance with the requirements of the Directive: see Alarape v Secretary of State for the Home Department (Case C-529/11) [2013] 1 WLR 2883. I find nothing in either of these cases to suggest that it is possible to satisfy that requirement by aggregating periods of residence in different capacities at different times.
19. It is also necessary to remember that the present case is concerned not with losing the right of permanent residence, but with acquiring it. In Ziolkowski v Land Berlin (Joined Cases C-424/10 & C-425/10) [2013] 3 C.M.L.R. 1013 the court was concerned with two Polish nationals who had lived in Germany for many years under residence permits issued by the German authorities. Their application for a document certifying their right of permanent residence under EU law was refused on the grounds that they could not bring themselves within the classes of persons who were entitled to acquire such a right. The court held that lawful residence in the territory of the host member state without satisfying the conditions laid down in the Directive was not a "legal" period of residence for the purposes of acquiring a permanent right of residence (see paragraph 47). The decision thus supports Miss Leventhal's submission that in order to acquire a permanent right of residence it is necessary to comply strictly with the requirements of the Directive, and in the present case of the Regulations. That was the view of this court in Ahmad v Secretary of State for the Home Department [2014] EWCA Civ 988, in which Arden L.J., with whom Beatson and Sharp L.JJ. agreed, expressed the view in paragraph 72 that the conditions set out in Article 7(1) of the Directive are to be interpreted strictly. In my view the same approach is to be applied to the other requirements of the Directive and the Regulations.
20. In my view none of the authorities to which we were referred supports the proposition that the court can treat the period during which Mrs. Ojo ceased to be dependent on her mother as analogous to a period of absence from the United Kingdom. The acquisition of a permanent right of residence depends on continuous residence in a qualifying status and the Directive makes no provision for changes in status of the kind which occurred in this case, nor is there any reason why it should do so. There is a distinction to be drawn between residence and status which makes it inapposite to draw an analogy between the two. In my view Judge Harris was wrong to hold that the provisions of regulation 3(2) can be applied to the present case by analogy. I would therefore allow the appeal, set aside the decision of the Upper Tribunal and dismiss Mrs. Ojo's appeal against the Secretary of State's decision.

Lord Justice Lewison :

21. I agree.

Lord Justice Kitchin :

22. I also agree.