TM (EEA Nationals – meaning; NI Practitioners) Zimbabwe  UKUT 00165 (IAC)
This instant case was heard in the Upper Tribunal (Immigration and Asylum Chamber) (“UT”). The Appellant, with permission, appealed the dismissal of his appeal by the First-tier Tribunal (Immigration and Asylum Chamber) (“FtT”) in respect of an initial decision made by the Secretary of State for the Home Department (SSHD) to refuse him a document certifying his permanent residence under the Immigration (European Area) Regulations 2006 (“the 2006 EEA Regulations”)
Brief Background and Chronology
The Appellant, a Zimbabwean national, was married to CM a dual national of the Republic of Ireland and the United Kingdom. The Appellant was issued with an EEA residence card on 28/10/09, as CM’s family member. He subsequently submitted an application for a permanent residence card on the basis that CM had been exercising rights as a worker under the Treaties of the European Union, for a continuous 5-year period between 2009 and 2014.
This application, refused by the SSHD, asserted there was a break in CM’s continuity of employment between February and November 2013. This gap represented a period in which CM was ill. SSHD however, asserted that the Appellant had provided no relevant sickness insurance policy in order to be classified as self-sufficient.
The Appellant appealed the SSHD’s decision to the FtT.
Regulation 6 (2) of the 2006 EEA Regulations provided as follows:
“…Subject to regulations 7A(4) or 7B(4), a person who is no longer working shall not cease to be treated as a worker for the purpose of paragraph (1)(b) if—
(a) he is temporarily unable to work as the result of an illness or accident”
The Immigration (European Economic Area) (“EEA”) 2006 Regulations were amended by Immigration (European Economic Area) (Amendment) Regulations 2012.
This amended the definition of EEA national to exclude those who were also British Citizens.
Transitional provisions were incorporated which avoided exclusion to dual EEA and British nationals where their family member:
“a) was on the 16th July 2012 a person with a right to reside in the United Kingdom under the 2006 Regulations; and
(b) on the 16th October 2012—
(i) held a valid registration certificate or residence card issued under the 2006 Regulations;
(ii) had made an application under the 2006 Regulations for a registration certificate or residence card which had not been determined; or
(iii) had made an application under the 2006 Regulations for a registration certificate or residence card which had been refused and in respect of which an appeal under regulation 26 could be brought while the appellant is in the United Kingdom (excluding the possibility of an appeal out of time with permission) or was pending (within the meaning of section 104 of the Nationality, Immigration and Asylum Act 2002.
On 25/11/16 The Immigration (European Economic Area) Regulations 2016 came into force. These regulations incorporated the transitional provisions as set out in the 2012 Regulations.
Decision of the FtT
In dismissing the Appellant’s appeal the FtT found as follows:
“(i) Following McCarthy v SSHD  EUECJ C-434/09, as CM had not exercised Treaty Rights, she could not at any point be said to be exercising Treaty Rights, and so the appeal fell to be dismissed in any event ;
(ii) Even were the appellant to have shown McCarthy did not apply, there was insufficient evidence to show that CM was self-sufficient, or that she had been in receipt of Employment and Support Allowance and/or Disability Living Allowance, despite claiming that she had been unable to work owing to being ill [ 14], [19 ]- .”
The McCarthy judgement concluded that EEA nationals who were dual nationals of other EEA states and had never exercised their right of free movement because they had always resided in a Member State of their nationality could not be said to have the benefit of the Treaties.
Decision of the UT
The UT held:
Given that date the Appellant obtained his residence card he was entitled to the benefit of the transitional provisions which did not exclude EEA nationals who were also British Citizens.
There was no requirement for CM to have been on Employment Support Allowance or Disability Living Allowance to evidence her illness.
The UT accepted CM’s letter from her GP which supported the fact that she had been unfit to work between February-November 2013 due depression The UT found that the FtT had failed to engage with the correct question of whether CM had been temporarily unable to work due to illness during the gap period. As CM in fact returned to work in November 2013 the period of illness was therefore been temporary.
The UT set aside the FtT decision but could not render its decision immediately due to jurisdictional issues arising out of the Appellant’s representatives ability to have taken instructions from lawyer not belonging to regulatory body recognised in Northern Ireland.The UT subsequently substituted a decision allowing the Appellant’s appeal.