Post
by IyaCiara » Thu Jan 10, 2013 6:12 pm
BACKGROUND INFORMATION
Mr. Xxxxxx (hereafter referred to as the appellant) married Mrs. Xxxx xxxx (hereafter referred to as the EEA sponsor), an Irish citizen, on xxth April 2007 in the United Kingdom. Their daughter was born on xx xxxxx 2008. The appellant was issued a 5 year residence card in accordance with the Immigration (EEA) Regulations 2006 on xx September 2007. This residence card expired on the xx September 2012 and on the 28th August 2012 the appellant submitted an EEA4 application form to the UKBA (hereafter referred to as the respondent) to request confirmation of his right of permanent residence in the UK. The appellant automatically became a resident on the xx April 2012 on the basis of having resided, in accordance with the Immigration (EEA) Regulations 2006, with his EEA sponsor for a continuous period of five years.
The EEA Sponsor is a permanent resident of the United Kingdom and has been since 20th October 2003. The transitional arrangements referred to in Schedule 4 of the Immigration (European Economic Area) Regulations 2006 confirm that the permanent residence received by the EEA Sponsor in 2003 continues to be recognised as permanent residence for the purposes of the 2006 Regulations.
On the 22nd December 2012, the appellant received a letter of refusal from the respondent that was accompanied by a ‘Reasons for Refusal Letter’. It is submitted that within this letter are four errors of law that have breached the appellant’s rights under the Immigration (EEA) Regulations 2006.
1ST ERROR OF LAW – NO RIGHT OF APPEAL ALLOWED
The respondent, acting on behalf of the Secretary of State, did not grant the appellant the right of appeal and gave the following reasons for this in the Reasons for Refusal Letter that was received by the appellant on 22/12/12.
‘Further to this the provided Irish passport number N972296 is noted as having expired as of xx August 2007. You have provided no other form of identity document for your stated sponsor and as such there is no right of appeal against the decision as per regulation 26 (3) of the Immigration (European Economic Area) (Amendment) Regulations 2012’
This information is incorrect. The appellant had in fact provided the current Irish passport (valid until 2017) of the EEA Sponsor when he submitted his application on 28th August 2012. However, the EEA sponsor requested that her passport be returned to her shortly afterwards because she needed her passport to enrol on the MSc Social Work degree at London Metropolitan University. Her passport was returned along with a letter addressed to the applicant, dated 20th September 2012, advising him that his EEA sponsor’s passport should not be returned to the respondent unless requested by the caseworker. A copy of this letter, bearing Home Office Reference Xxxxxxxx, will be submitted as proof of the existence of this letter.
Therefore it is logical to draw the conclusion that the appellant should have been allowed the right of appeal because Regulation 26(3) of the Immigration (EEA) Regulations 2006 as amended by statutory instrument 2012 no. 1547, The Immigration (EEA) (Amendment) Regulations 2012, has been satisfied.
Furthermore, as confirmed by Upper Tribunal Judge Peter Lane in the case of Barnett and others (EEA Regulations: rights and documentation) [2012] UKUT 00142 (IAC), it is not necessary for the EEA sponsor to submit a current passport with the appellant’s application for permanent residence. The conclusion by Upper Tribunal Judge Peter Lane reads as follows:
‘The general conclusions that emerge may be stated as follows. (1) In applications under the 2006 Regulations, care must be taken to identify both the relevant rights being asserted and the relevant documentary confirmation which is being sought in respect of those rights. (2) The requirement in regulation 17(1)(a) and (2)(a) for the production of a valid passport relates to the passport of the applicant, not the EEA national. (3) The “proof” that the Secretary of State can lawfully require in applications under regulations 17 and 18 in order to entitle a non EEA national to a residence card (regulation 17) or a permanent residence card (regulation 18) may, nevertheless, depending on the circumstances, entail the production of the passport or other identity document of an EEA national; but it is unlawful to refuse applications merely because such documentation is not forthcoming. The Secretary of State needs to show a valid reason why it is required. (4) This is particularly so in the case of regulation 18, given that there is likely to be relevant material relating to such documentation on file from a previous, successful application’.
Therefore it is submitted that the grounds for this appeal are in accordance with s. 84 (1)(a) and (1)(d) of the Nationality and Asylum Act 2002.
s. 84(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds—
(a) that the decision is not in accordance with immigration rules
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant’s rights under the Community Treaties in respect of entry to or residence in the United Kingdom
2nd ERROR OF LAW – EEA SPONSOR’S PERMANENT RESIDENCE NOT RECOGNISED.
Secondly, the respondent states the following in the Reasons for Refusal Letter:
‘In order to qualify for this form of leave it is necessary to provide clear evidence of exercising treaty rights on the part of the EEA national in question. In support of this you have supplied a large number of documents that would indicate residence in the UK for the required period but there is very little documentation within this that would indicate exercising of treaty rights as required. One such document is a temporary contract of employment which covers the period 1st February 2010 until 31st October 2010. There are also a number of payslips provided dated in 2010 and 2009. However, there are substantial gaps in this evidential record and nothing that would indicate a continuous period of employment for a 5 year period. As this is the case your sponsor cannot be deemed to be a qualified person for this period and thus your application has been refused on this basis in respect of regulation 15(1)(b) of the Immigration (EEA) Regulations 2006’.
There is absolutely no requirement for the EEA Sponsor to prove that she was exercising treaty rights since she is a permanent residence of the United Kingdom and has been since 20th October 2003. She has a ‘no time limit’ stamp in her expired Irish Passport, N972296, confirming this. On becoming a permanent resident the EEA Sponsor was automatically entitled to reside in the United Kingdom without exercising treaty rights.
Although the EEA Sponsor acquired permanent residence prior to the 2006 Regulations being implemented, Schedule 4 (2)(4) leaves no room for doubt that the ILR stamp in her expired Irish passport must be treated as a document certifying permanent residence under the current 2006 Regulations.
Schedule 4 (2)(4)
Where a residence permit issued under the 2000 Regulations has been endorsed under the immigration rules to show permission to remain in the United Kingdom indefinitely it shall, after 29th April 2006, be treated as if it were a document certifying permanent residence issued under these Regulations and the holder of the permit shall be treated as a person with a permanent right of residence under regulation 15.
It is therefore clear that the appellant should have been granted a residence card confirming his right of permanent residence because the conditions of the 2006 Regulations below have clearly been satisfied.
15.—(1) The following persons shall acquire the right to reside in the United Kingdom permanently—
(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 respondent has not disputed that the appellant is the family member of an EEA National and the following extract from the Reasons for Refusal Letter indicates that they are satisfied that he has lived with the EEA national for a continuous period of 5 years:
‘you have supplied a large number of documents that would indicate residence in the UK for the required period’
As has been previously stated, the EEA Sponsor is a permanent resident therefore the appellant and the EEA Sponsor have certainly been residing together for the required period ‘in accordance’ with the regulations.
17.—(1) The Secretary of State must issue a residence card to a person who is not an EEA national and is the family member of a qualified person or of an EEA national with a permanent right of residence under regulation 15 on application and production of—
(a)a valid passport; and
(b)proof that the applicant is such a family member.
All aspects of Regulation 17(1) have been satisfied by the appellant. His EEA Sponsor is an EEA National with a permanent right of residence under regulation 15. The appellant provided his passport with the EEA4 application and provided his marriage certificate as proof that he is a family member of an EEA National.
Having fulfilled the criteria of regulations 17(1) and 15(1)(b), it is therefore apparent that a permanent resident card should have been issued to the appellant in accordance with Regulation 18(2)(b) which states that:
18.—(2)(b) The Secretary of State must issue a person who is not an EEA national who has a permanent right of residence under regulation 15 with a permanent residence card no later than six months after the date on which an application for a permanent residence card and proof that the person has such a right is submitted to the Secretary of State.
By submitting the EEA Sponsor’s passport and providing extensive evidence of having resided together with the EEA Sponsor since their marriage in 2007, the appellant has undoubtedly satisfied the conditions of Regulation 18(2)(b).
3rd ERROR OF LAW – THE INCORRECT REGULATION USED TO MAKE THE REFUSAL DECISION
The third error of law made by the caseworker of the UKBA concerns the following that was stated in the reasons for refusal letter:
‘your application has been refused on this basis in respect of regulation 15(1)(b) of the Immigration (EEA) Regulations 2006’.
As has been previously addressed, the appellant’s EEA Sponsor is a permanent residence of the United Kingdom in accordance with the 2006 Regulations and evidence of this has been submitted to the respondent. Notwithstanding, the appellant sent the EEA4 application form to the respondent for the sole purpose of requesting a permanent residence card that would confirm his automatic right to permanent residence under Regulation 15(1)(b). The actual issue of permanent residence cards (as requested by the appellant) is addressed in Regulation 18 (2)(b) of The Immigration (EEA) Regulations 2006 which states the following:
18.—(2)(b) The Secretary of State must issue a person who is not an EEA national who has a permanent right of residence under regulation 15 with a permanent residence card no later than six months after the date on which an application for a permanent residence card and proof that the person has such a right is submitted to the Secretary of State.
Because the appellant had satisfied all of the conditions put forth in Regulations 15(1)(b), 17(1)(a) and (b) and 18(2)(b) the respondent should have issued the appellant with a permanent residence card.
4th ERROR OF LAW – RETENTION OF APPELLANT’S PASSPORTS AND REQUEST THAT THE APPELLENT LEAVE THE UK.
The following, within the Reasons for Refusal Letter, confirm that the appellant’s passports have been retained and that he has been asked to leave the United Kingdom:
‘As you appear to have no alternative basis of stay in the United Kingdom you should now make arrangements to leave. If you fail to do so voluntarily your departure may be enforced’
and
‘Your documents have been retained and responsibility for your case has now been passed to your regional case ownership unit. You should contact them (between the hours of 9am and 5pm, Monday to Friday) by telephone on 0207238003 to discuss your departure from the United Kingdom.’
Part 4 of The Immigration (EEA) Regulations 2006 allows for the removal of EEA Nationals or their relevant family members who are residing in accordance with the regulations only on the grounds of public policy, public security or public health.
ADDITIONAL INFORMATION
It is also relevant to point out that the Section 7 of the EEA4 Application Form, version 07/2012 states the following:
‘If your EEA national family member has already acquired permanent residence, please provide either their document certifying permanent residence (if they have one) or evidence of how they acquired permanent residence, for example evidence of exercising Treaty rights for a continuous period of 5 years prior to the date at which they acquired permanent residence. If your EEA national family member has a document certifying permanent residence, please tick this box and go to section 8, otherwise please complete section 7 below’
This application form, made available by the respondent, makes it clear that there is no requirement for the EEA Sponsor to provide proof of continuing to exercise treaty rights where the EEA Sponsor is already a permanent resident and submits the necessary document certifying permanent residence. The EEA Sponsor’s expired Irish Passport (N972296) which satisfies this condition was submitted with the application.
Although not requested in the EEA 4 application form and not a condition of the 2006 Regulations, proof that the EEA sponsor has not lost her permanent right of residence since the xx October 2003 (when it was granted) and 2007 (when she married the appellant) will be provided to the tribunal. This is to avoid the possibility of the respondent further delaying the issue of a permanent residence card to the appellant.
