United Kingdom Asylum and Immigration Tribunal

TB (EEA national: leave to remain?) Nigeria [2007] UKAIT 00020

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 24^th October, 2006

Date Determination notified: 07 February 2007

Before

Mr C M G Ockelton, Deputy President of Asylum and Immigration Tribunal
Senior Immigration Judge Chalkley

Between

TB	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr T Olaogun, of BSO Solicitors
For the Respondent: Mr M Blundell, a Senior Home Office Presenting Officer
DETERMINATION AND REASONS

A resident permit granted under the EEA Regulations is not Leave to Enter or Leave to Remain. A person who has a Residence Permit does not, therefore, meet any requirements of the Immigration Rules that he have Leave to Enter or Leave to Remain.

1. This is the reconsideration of a determination by Immigration Judge Kulatilake, promulgated on 17^th May, 2006, following a hearing at Hatton Cross on 9^th May, 2006, in which he dismissed the appeal of the appellant against the decision of the respondent., taken on 24^th April, 2006, to refuse to vary leave to remain in the United Kingdom as a "common-law spouse".
2. The appellant is a citizen of Nigeria, who was born on 23^rd November, 1970. He was issued with a United Kingdom residence permit which was valid from 15^th June, 2002, until 15^th June, 2005. The reason for the issue of the residence permit was that the appellant's then wife, a Dutch national, was exercising treaty rights in the United Kingdom under the Immigration (European Economic Area) Regulations, 2006.
3. The marriage between the appellant and his wife was dissolved by a decree absolute issued in the Principal Registry of the Family Division of the High Court on 2^nd March, 2005.
4. The appellant entered the United Kingdom some time during 1998 and married his wife. The date of his marriage is unclear but it is not disputed that he was given right of residence as a family member of an EEA national until 15^th June, 2007. By notice dated 20^th March, 2006, the respondent revoked the appellant's residence document following the issue of the decree absolute on 2^nd March, 2005. By application dated 21^st December, 2005, the appellant made application for further leave to remain in the United Kingdom as the common-law spouse of a person with whom he started to live together in a relationship akin to a marriage in March, 2003.
5. The Immigration Judge found that the appellant lost his residence rights on the pronouncement of his decree absolute on 2^nd March, 2005. He also found that the appellant failed to meet the requirements of paragraph 295D(iv) and dismissed the appellant's appeal. He went on to consider the appellant's human rights Article 8 claim and concluded that there was nothing in the evidence before him which could properly be described as being "exceptional" in the sense held by the Court of Appeal in Huang and Others v Secretary of State for the Home Department ] EWCA Civ 105 and that interference with the appellant's Article 8 rights would be proportionate.
6. The appellant sought reconsideration and asserted that:-

"The Immigration Judge misdirected himself on the effect of the notice of revocation and should have considered whether such revocation was justified given that the appellant had made application for variation of his leave prior to the revocation of the residence permit

- that the Immigration Judge further misdirected himself in concluding that the appellant lost his residence rights on the pronouncement of the decree absolute on 2^nd March, 2005.

- that the Immigration Judge misdirected himself as to the proper interpretation of paragraph 295(D) of Statement of Changes in Immigration Rules HC 395

- that the Immigration Judge misdirected himself in interpreting Article 8 when the appellant had established a private and family life and any interference would be disproportionate."

7. Prior to the hearing a skeleton argument was submitted to the Tribunal by those appearing on behalf of the appellant. It was briefly referred to during the hearing and has been carefully considered by us before reaching our conclusions. In that skeleton argument, it is asserted that:

"5. It is not disputed that the appellant was granted a residence permit which for argument sake is akin to a limited leave to enter or remain under the 1971 Immigration Act".

Further arguments in the skeleton argument were developed by Mr Olaogun before us. He submitted that the real issue was whether or not the appellant had leave at the time he made his application on 21^st December, 2005. Before answering that question, Mr Olaogun suggested that it was necessary to consider first whether the respondent's revocation of a residence document on 20^th March, 2006, had retrospective effect to cancel the appellant's leave prior to the making of his application on 21^st December, 2005.

8. The appellant had been in possession, Mr Olaogun reminded us, of a residence permit. People in possession of residence permits do not need to have leave to remain. Effectively, a residence permit is, suggested Mr Olaogun, leave to remain in the United Kingdom. With the respondent's notice of refusal to vary leave was a "reasons for refusal letter" addressed to the appellant dated 24^th April, 2006, which says:-

"In making the decision to refuse your application, consideration has been given to the following:

1. On 15^th June 2002 you were granted further leave to remain in the United Kingdom as the spouse of …, a Dutch national exercising treaty rights in the United Kingdom until 15^th June 2007."

9. It appeared, therefore, that the respondent believed that the appellant had been granted leave to remain when, in actual fact, he had been granted a residence permit as the spouse of an EEA national.
10. The appellant is not married but relies on his rights under the Immigration Rules. Mr Olaogun confirmed that the appellant can no longer rely on the Immigration (European Economic Area) Regulations, 2006 because he is no longer married and his current common-law partner is herself a British citizen.
11. Mr Olaogun submitted that the appellant did meet the requirements of paragraph 295D(i) which requires:-

"(i) the appellant has limited leave to remain in the United Kingdom which was given in accordance with any of the provisions of these Rules;"

because although he did not have limited leave to remain he did have a residence permit which is akin to leave and, he suggested, the Immigration Rule should be given a positive interpretation. The appellant's right of residence as the dependant of an EEA national is not, suggested Mr Olaogun, dependent upon the marriage subsisting. The residence permit did not itself terminate until it was subsequently revoked and it could not have been revoked retrospectively. The revocation was an act of bad faith by the Secretary of State because the appellant was not an overstayer and had already applied under paragraph 295D.

12. Mr Blundell submitted that the residence permit is not akin to limited leave and that the Immigration (European Economic Area) Regulations, 2006, were clear. Paragraph 295D of HC 395 cannot avail the appellant because he did not meet the requirements of sub-paragraph (i) in that he did not have limited leave to remain in the United Kingdom. The reasons for refusal letter refers to a grant of leave but that is clearly incorrect and the appellant and those representing the appellant must have known that. There was never any grant of any leave to the appellant and the stamp in the appellant's passport clearly shows the grant of a right of residence as a family member of an EEA national on 15^th June, 2002 until 17^th June, 2007. He invited us to dismiss the appeal. We reserved our determination.
13. Paragraph 295D of Statement of Changes in Immigration Rules, HC 395 requires, amongst other things, that a person seeking leave to remain as the unmarried partner of a person present and settled in the United Kingdom are that:-

"(i) the applicant has limited leave to remain in the United Kingdom which was given in accordance with any of the provisions of these Rules."

14. It is clear from the copy of the appellant's passport reproduced in the bundle before us, that on 15^th June, 2002, the appellant was granted a right of residence in the United Kingdom as the family member of an EEA national, his wife, until 15^th June, 2007. We have not been told when the appellant married his wife but we have been supplied with a copy of a decree absolute issued by the Principal Registry of the Family Division of the High Court of Justice on 2^nd March, 2005, dissolving that marriage. At the date of the decree absolute the appellant ceased to be the family member of an EEA national. The appellant subsequently applied under paragraph 295D for leave to remain as the unmarried partner of a British subject and that application no doubt prompted the respondent to revoke the residence document.
15. Mr Olaogun's challenge to the Immigration Judge's determination is predicated on the basis that the grant of residence as the dependant of an EEA national, "is akin to a limited leave to enter or remain under the 1971 Immigration Act".
16. It is not. The grant of a right of residence to the spouse of an EEA national is dependent on that spouse's relationship with the EEA national. Once that relationship terminates then, subject to Regulation 10 of the Immigration (European Economic Area) Regulations, 2006, that person's right of residence also ceases because he then ceases to be the spouse of a qualified person.
17. The appellant could not qualify for the grant of leave to remain as the unmarried partner of a person present and settled in the United Kingdom under paragraph 295D of HC 395, because he could not satisfy the requirements of sub-paragraph (i).
18. We have concluded, therefore, that the Immigration Judge did not err in law in dismissing the appellant's immigration appeal.
19. So far as concerns the appellant's Article 8 claim, the challenge is nothing more than a disagreement with the determination. The Immigration Judge noted that the Home Office Presenting Officer conceded that the appellant had established a family life with his partner and that there were two children from that relationship. He noted also that the appellant lives with his partner, a British citizen and their children and supports his family from his employment as a Safety Officer. He noted that the appellant is engaged in church-related welfare work and accepted that the appellant had no criminal convictions. The Immigration Judge reminded himself of the judgment of Laws LJ in Huang and found that there was no evidence before him to conclude that the appellant's circumstances were so exceptional "that the imperative of proportionality demands an outcome in the appellant's favour". He properly found that family life existed and concluded, having assessed all the evidence before him, that the appellant's removal would be proportionate. We similarly find that the Immigration Judge did not err in his dismissal of the appellant's Article 8 claim.
20. Unless a material error of law can be discerned in an Immigration Judge's determination, it may not be interfered with (see CA [2004] EWCA Civ 1165 ). That is the case here. There is no error of law in the Immigration Judge's determination and his decision shall stand.

Signed Date

Senior Immigration Judge Chalkley