2011 07 Migrants

Monday 1 August 2011

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In Jessy StPrix v Secretary of State for Work and Pensions [2011] EWCA Civ 806 the Court of Appeal considered whether an EU National who stopped work when pregnant would retain worker status under Article 7 of Directive 2004/38. The appellant was a French national who came to the UK in July 2006. She worked in various jobs in the UK from September 2006 to August 2007, most of which were as a teaching assistant. She enrolled on a Post-Graduate Certificate in Education course for modern languages. The tuition fees were funded by a student loan and she was supported by a bursary. She became pregnant. Realising that she would have given birth prior to the end of her course she withdrew from her studies and her bursary payments ceased. The appellant undertook agency work from January 2008, but by March 2008 the demands of the work while some 6 months pregnant were proving too much and she stopped work. She claimed IS but it was refused. Her baby was born in May 2008 and she resumed employment some three months later. The Court dismissed the appeal saying that: (i) it was implicit in Article.7.3 that a person who ceased to work for reasons other than those set out in Article 7.3.(a) to (d) ceased to be a worker: Secretary of State for Work and Pensions v Dias (2009) EWCA Civ 807, (2010) 1 CMLR 4 followed; (ii) an amendment to the text of what became Article 7 was proposed by the Committee on Women's Rights and Equal Opportunities of the European Parliament, to add "pregnancy" to "illness or accident" but that proposal was not accepted; and (iii) the contention that Article 7(3) amounts to unlawful sex discrimination faces the insuperable obstacle that in Patmalniece v SSWP [2011] UKSC 11 [2011] 1 WLR 783 the Supreme Court held that the indirect discrimination that results from the right to reside test is justified under domestic and Community law. Moreover, on the appellant's case, a national of another Member State could come to this country in an advanced state of pregnancy, work for a week as an agency worker, stop work (with no continuing employment contract) and then be entitled to income support. The Court said this was a possibility that the Secretary of State was entitled to exclude. Click here for transcript.

In Okafor & Ors v Secretary of State for the Home Department [2011] EWCA Civ 499 the Court of Appeal considered the consequences for a third country national who was a family member of an EU national who had died before the acquisition of permanent residence The father was a citizen of Nigeria who married a citizen of the Netherlands. They had two children, each of whom were born in Germany. The family came to the UK in June 2003 and were granted a right of residence evidenced by an endorsement in the mother and father’s passports, as required under Article 11 of the Directive. After the mother's death in 2007, the family remained in the UK. When the residence permit expired the father and the children applied for a permanent residence card. The mother had not been a ‘qualified person’ during the five years of the residence permit. Nevertheless, the appellants applied for a permanent residence card under Article 16. This was refused and the appeal was dismissed on appeal. The Court dismissed the appeal saying that:

  • It was clear from the structure of the scheme in the Directive that the rights of permanent residence must be acquired through the rights of residence conferred through Chapter 3 (which comprises Articles 6 to 15). Accordingly, it could not simply be obtained by residence that was not unlawful for a period of five years.
  • On a proper construction of Article 12(3) it could not confer, standing on its own, any right to permanent residence.
  • The rights to acquire permanent residence for persons in the position of the father and the children were governed by Article 12 which had prescribed particular conditions for the acquisition of a right of permanent residence for such persons, e.g. that they are in work.
  • If a person no longer has a right to reside in the UK, the fact that the Secretary of State has not cancelled the document which initially granted that right cannot establish a right of lawful residence under national law: Lekpo-Bozua v London Borough of Hackney [2010] EWCA Civ 909 considered.

Note: The Court did however confirmed that the children, who were at school, retained a right to reside under Article 12(3), as did their father as the person with custody of the children after the death of the mother until the completion of their studies. Click here for transcript.

In Amos v Secretary of State for the Home Department [2011] EWCA Civ 552 the Court of Appeal considered the establishment of right to permanent residence for divorced non-EEA Citizens. In the first case Mr Amos was a citizen of Nigeria. In January 2003 he married a French citizen, in the UK. He and his wife were granted residence documents for 5 years until March 2008. In March 2008 he commenced divorce proceedings and applied to the Secretary of State for recognition of his right to permanent residence. In August 2008 the decree absolute was granted, dissolving his marriage. The Secretary of State rejected his application. An Immigration Judge rejected Mr Amos's case on the ground that, as had been earlier decided in the case of OA [2010] UKAIT 00003, a family member of an EEA national must show that for the period of 5 years preceding the claim for the right of permanent residence, the EEA national on whom his claim depends resided in the UK exercising treaty rights. As there was no evidence that his wife had worked Mr Amos was not entitled to the right of permanent residence. In the linked case Ms Theophilus was also a citizen of Nigeria who entered the UK in February 2002 and in June 2003 she married a French citizen. She was granted a right of residence in the UK as the family member of an EEA national resident in the UK and exercising treaty rights for the period from August 2003 to August 2008. Her marriage broke down, and the couple separated when her husband moved out of the matrimonial home in late 2007. She started divorce proceedings in July 2008 and was granted a decree absolute in December 2008. Ms Theophilus worked throughout her time in the UK. Her evidence before the Immigration Judge was that when she met her husband he worked as a chef but she did not know whether he had continued to work after their separation, and in particular she did not know whether he was working at the date of their divorce, or even whether he was still living in the UK at that date. The Immigration Judge dismissed Ms Theophilus' appeal because she had not shown that her husband was exercising treaty rights at the date of her divorce. The Court gave guidance on the correct approach to this type of case:

(1) At all times while residing in this country until their divorce, their spouse must have been a worker or self-employed (or otherwise satisfied the requirements of Article 7.1).

  • The Directive could not be interpreted as requiring a former spouse to show that their former spouses was working for a continuous period of 5 years prior to their applications for the right of permanent residence. OA [2010] UKAIT 00003 was therefore incorrectly decided.
  • The requirements of the Directive applicable to the appellants, as third country nationals, were as follows:

(1) At all times while residing in this country until their divorce, their spouse must have been a worker or self-employed (or otherwise satisfied the requirements of Article 7.1).

(2) Their marriages had to have lasted at least three years, including one year in this country.

(3) They must be able to show that they are workers or self-employed persons or otherwise satisfy the requirements of the penultimate paragraph of Article 13.2.

The Court also said that procedures in appeals before an immigration and asylum FtT were essentially adversarial and that the Home Secretary was not under any duty to prove the appellant’s case for them. In Ms Theophilus’ case, she had failed to apply for a witness summons or for an interlocutory order for the production of any documents that might be in the possession of HMRC or the social security authorities. Kerr v Department for Social Development [2004] UKHL 23 [2004] 1 WLR 1372 did not assist as it was not authority for the proposition that the Home Secretary is bound to make enquiries of other government departments for evidence they may or may not have concerning issues before the Tribunal. The Court remitted the matter in both appeals to be heard afresh. Click here for transcript.

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