RTR merging into immigration issue

A bit of an interesting one this.

Client is from outside the EU but is married to a EEA national. They lived together in the UK from 2004 until they separated in 2012 .The EEA national has almost certainly now left the UK. We have evidence that he worked consistently from 2004 until 2012 when he and client separated and he moved away.

Client definitely had the status of an EEA Family Member from May 2007 because we have a copy of the HO residence document (and this should have been the case throughout the period they lived together in the UK).

Based on my reading of the situation, she should now have a permanent ROR. However- JSA refused because DWP has checked with the HO and according to them, client has no current valid leave to remain in the UK and has no recourse. Client says that she has been trying to sort things out with the HO since 2012 but isn’t getting anywhere (I’ve advised her to seek immigration advice re this aspect of the problem). We’ve been through MR and have now submitted appeal.

My question is, how does the HO info (which seems to be erroneous based on the facts as I read them) interact with the appeal? If her appeal succeeds, does that automatically result in her status being established or will she still need to sort things out with the HO? (hope this makes sense). Any opinions gratefully received…

1964 - 07 October 2015 03:34 PM

A bit of an interesting one this.

Client is from outside the EU but is married to a EEA national. They lived together in the UK from 2004 until they separated in 2012 .The EEA national has almost certainly now left the UK. We have evidence that he worked consistently from 2004 until 2012 when he and client separated and he moved away.

Client definitely had the status of an EEA Family Member from May 2007 because we have a copy of the HO residence document (and this should have been the case throughout the period they lived together in the UK).

Based on my reading of the situation, she should now have a permanent ROR. However- JSA refused because DWP has checked with the HO and according to them, client has no current valid leave to remain in the UK and has no recourse. Client says that she has been trying to sort things out with the HO since 2012 but isn’t getting anywhere (I’ve advised her to seek immigration advice re this aspect of the problem). We’ve been through MR and have now submitted appeal.

My question is, how does the HO info (which seems to be erroneous based on the facts as I read them) interact with the appeal? If her appeal succeeds, does that automatically result in her status being established or will she still need to sort things out with the HO? (hope this makes sense). Any opinions gratefully received…

You really need to co-ordinate your advice with that of her solicitor, and she now definitely needs to see one or get specialist immigration advice. In my (non-legal) opinion your client is in a risky position going ahead. The DWP are already in contact with the HO, who are advising she has no leave to remain. She needs legal advice.   

I quite agree Martin- am trying to sort something out urgently for her on that side of things. However, there’s already an ongoing benefit issue (and was when I first met her) so the cat is well and truly out of the bag as far as that is concerned.

It just seems to me that on the face of it at least there should be no question that she has established a permanent ROR.

I don’t think a benefits appeal is binding on the Home Office although it will presumably be taken into account as part of the evidence.  For benefits purposes a claimant’s EEA right to reside is a finding of fact: DWP are making benefits decisions, not dishing out residence cards.  If a Tribunal deciding a benefits appeal finds as a fact that the claimant has a permanent right to reside, this is just part of the reasoning process that leads to the formal decision about benefit entitlement.  When it comes to being allowed to stay in the UK at all I think the Home Office is the formal decision making body for that - if they regard the benefits Tribunal decision as mistaken they can take a different view.

Based on the information given by the original poster then I think this client is fine.

Assuming she has:

1. Evidence that husband was working from 2004 to 2012; and

2. Evidence they were married at least 5 years prior to 2012,

then: she now has a permanent right of residence. There is no legal requirement for the Home Office to have issued her a residence card etc. for that right of residence to exist- it arises by operation of law. Whilst I agree with HB Anorak that the Home Office could take a different view then if the evidence is cogent it is difficult to see how they could. Where I would differ slightly is in referring to a decision that the client has a permanent right of residence made by a SEC Tribunal as a “finding of fact”- it is at the very least a mixed question of fact and law (eg given we found these facts then the law provides for a permanent right of residence).

There is a lot of caselaw from the ECJ on this point confirming that the client doesn’t need the resident document in this situation:

Raulin v Minister van Onderwijs en Wetenschappen (Case C-357/89) [1992] ECR I-1027 - where that was the 6th question referred to the ECJ by the Dutch Court).

36 In this respect the Court has consistently held that a residence permit is a document serving to prove the individual position of a national of another Member State with regard to provisions of Community law. However, the issue of such a permit does not create the rights guaranteed by Community law and the lack of a permit cannot affect the exercise of those rights (see in particular the judgments in Case 48/75 Royer [1976] ECR 497, paragraph 33, and in Joined Cases 389/87 and 390/87 Echternach and Moritz v Minister van Onderwijs en Wetenschappen [1989] ECR 723, paragraph 25).

Similarly, in the Royer case (referenced in the extract from Raulin above) the ECJ held: (apologies for the caps)

31 ( A ) IT FOLLOWS FROM THE FOREGOING THAT THE RIGHT OF NATIONALS OF A MEMBER STATE TO ENTER THE TERRITORY OF ANOTHER MEMBER STATE AND RESIDE THERE FOR THE PURPOSES INTENDED BY THE TREATY - IN PARTICULAR TO LOOK FOR OR PURSUE AN OCCUPATION OR ACTIVITIES AS EMPLOYED OR SELF-EMPLOYED PERSONS , OR TO REJOIN THEIR SPOUSE OR FAMILY - IS A RIGHT CONFERRED DIRECTLY BY THE TREATY , OR , AS THE CASE MAY BE , BY THE PROVISIONS ADOPTED FOR ITS IMPLEMENTATION .
32 IT MUST THEREFORE BE CONCLUDED THAT THIS RIGHT IS ACQUIRED INDEPENDENTLY OF THE ISSUE OF A RESIDENCE PERMIT BY THE COMPETENT AUTHORITY OF A MEMBER STATE .
33 THE GRANT OF THIS PERMIT IS THEREFORE TO BE REGARDED NOT AS A MEASURE GIVING RISE TO RIGHTS BUT AS A MEASURE BY A MEMBER STATE SERVING TO PROVE THE INDIVIDUAL POSITION OF A NATIONAL OF ANOTHER MEMBER STATE WITH REGARD TO PROVISIONS OF COMMUNITY LAW .
34 ( B ) ARTICLE 4 ( 1 ) AND ( 2 ) OF DIRECTIVE NO 68/360 PROVIDES , WITHOUT PREJUDICE TO ARTICLE 10 THEREOF THAT MEMBER STATES SHALL ’ GRANT ’ THE RIGHT OF RESIDENCE IN THEIR TERRITORY TO PERSONS WHO ARE ABLE TO PRODUCE THE DOCUMENTS LISTED IN THE DIRECTIVE AND THAT ’ PROOF ’ OF THE RIGHT OF RESIDENCE SHALL BE CONSTITUTED BY ISSUE OF A SPECIAL RESIDENCE PERMIT .
35 THE ABOVE-MENTIONED PROVISIONS OF THE DIRECTIVE ARE INTENDED TO DETERMINE THE PRACTICAL DETAILS REGULATING THE EXERCISE OF RIGHTS CONFERRED DIRECTLY BY THE TREATY .
(emphasis added)

In Echternach and Moritz (again cited in the first extract) the ECJ commented similarly:

24 The third group of questions concerns the problem whether the rights of a member of the family of a worker of a Member State employed in another Member State may be made subject to the grant of a residence permit which, in accordance with the rules of national law in force, is issued for a certain period .
25 In that regard, it should be pointed out that the right of nationals of a Member State to enter the territory of another Member State and reside there for the purpose of seeking or pursuing an occupation or rejoining their spouses or families is a right conferred directly by the Treaty or by the provisions adopted for its implementation . As proof of the right of residence, a special residence permit is to be issued in accordance with Article 4 of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families ( Official Journal, English Special Edition 1968 ( II ), p . 485 ). However, the issue of such a permit does not create the rights guaranteed by Community law, and the lack of a permit cannot affect the exercise of those rights .
26 The answer to the third group of preliminary questions should therefore be that the enjoyment of the rights which a member of the family of a worker of a Member State derives from the provisions of Community law may not be made subject to the grant of a residence permit which meets certain conditions .

In terms of worries about the Home Office - given the above law and again assuming that there is good evidence that client husband was working all that time and they were married then presumably the Home Office is going to have to accept all of that also…. I can’t given immigration advice but presumably any immigration solicitor would look at the same judgments and advise similarly.

Martin, thanks SO much for that- it’s really, really helpful.

Yes- we have evidence that they’re married (and had been for some years before their arrival in the UK), that he is an EEA national and that he worked (from the evidence II have, consistently for 8 years prior to their split) so I can’t see any reason why she won’t have a permanent ROR. In relation to the HO issue, my guess is that- having tried to sort it out on her own with no advice- she has either misunderstood what she needed to provide (her English isn’t brilliant) or someone at the HO has got the wrong end of the stick.

I shall keep them what’s interested posted on developments….

Yes, of course “finding of fact” is not really the right expression here is it ... it does fall to the benefits DM to apply the law before coming to the conclusion that the claimant has a right to reside.

Perhaps “determination reached in the process of, and existing only for the purpose of, a single benefits outcome decision” would be better?

Reason why this matters to me particularly is the belief by DWP and many local authorities that when DWP awards JSA on the basis that someone has a right to reside as a jobseeker this is some way constitutes a formally designated status which has an effect outside the scope of the JSA decision.  Local authorities routinely refuse HB on the basis that DWP has decided the claimant’s only R2R is as a jobseeker.  Whereas the way I see it DWP has decided that the claimant is or is not entitled to JSA and has not decided anything else.  It falls to the LA decision maker to take his or her own view about the HB claimant’s right to reside which will often result in a favourable HB decision because the LA considers issues DWP has overlooked.  I can see it wasn’t entirely right to characterise the DM’s view as a “finding of fact” - “constituent determination” is probably better.

To add to the case law on residence docs not being compulsory, Article 25 of Directive 2004/28/EC now enshrines that in the legislation as well.

I think the OP’s worry here was that in theory the Home Office could take action resulting in the claimant’s removal from the UK as a non-EEA national with no EEA family connections to rely on, and a favourable benefits decision would be no defence.  But obviously that’s very unlikely on the facts provided as there seems to be strong evidence of a permanent right to reside.

Ah - I see. I agree that LAs should not blindly follow DWP decisions on this area.

Martin.