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Court of Appeal case on effect of break in dependency on permanent right to reside

Brian JB
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I have copied this over from another thread in the hope it is better placed here for comment -

In 2015 Ros posted -

In an immigration case, ‘Secretary of State for the Home Department v Ojo’, Court of Appeal overturns UT decision that a break of less than six months in Mrs Ojo’s dependency on her EEA national mother did not interrupt her residence so as to prevent her from acquiring a permanent right to reside

I noticed today that this case has been cited by Judge Ward in [2019] UKUT 271 (AAC) in deciding that gaps in “legal residence” break the continuity of the 5 years continuous legal residence required to acquire a permanent right to reside, contrary to [2017] UKUT 0255 (AAC).

I have a case where there are three breaks for which we could not evidence what had actually happened (the client, regrettably, thought she did not have to attend the hearing despite being told the opposite) - the longest was 11 days (between the end of an ESA claim and the first day of full time work).

Has anyone had recent experience of arguing that small breaks in the 5 year period should be ignored if de minimis; or that [2017] UKUT 0255 (AAC) was followed without reference to Ojo; or Ojo cited to rule out ignoring any breaks?

 

Ruth Knox
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In most cases, does the introduction of “settled status” not make this less important?  Is there a difference between “permanent right to reside” and “settled status” that I have overlooked?  Looking at Judge Ward’s decision it seems clear to me that the appellant would easily meet the requirements for settled status, as the brief periods where he was in the UK but could not provide evidence of being a job seeker would not be relevant. 
Ruth

HB Anorak
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Main difference is settled status has to be awarded and only applies prospectively, whereas permanent right to reside arises by operation of law from whenever the five year point was reached

Ros
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Elliot Kent
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I don’t think Ojo prevents short “gaps” of the sort you are describing from being taken into account as part of the five years. In many cases, the “gaps” will not be gaps at all - for instance a few days between work ending and registering as a jobseeker is unlikely to involve the loss of worker status (SSWP v MK (IS) [2013] UKUT 163 (AAC)), short gaps where claimants are “between jobs” do not result in the loss of status (VP v SSWP (JSA) [2014] UKUT 32 (AAC)), status as a self-employed person does not necessarily end during a short period of inactivity (HMRC v HD & GP [2017] UKUT 11 (AAC)). The same I suspect is true of many other sort of gaps.

And even if we do have a proper “gap” of just a few days, it seems that it is unlikely to result in the loss of a right of permanent residence. Whether we think of it as de minimis wearing our common law hats or as disproportionality wearing EU law hats, it is difficult to justify depriving someone of rights built up over five years of otherwise lawful residence on the footing that there is a period of less than two weeks somewhere in the middle of that which they can’t account for.

This is formally recognised in DWP policy which allows for a period of up to 30 days in any 12 months where a claimant is between statuses to be ignored for the purposes of calculating permanent residence - see ADM C1812 - C1813.

Brian JB
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Thanks for that Elliot - I notice it is a June 2019 amendment in the DMG, covering income support (which was the benefit in question in the appeal). I recall it saying no gaps were allowed when I looked earlier in the year, but perhaps they have changed tack. I can see the ADM paragraphs you highlight have always said the same thing for UC. The presenting officer certainly didn’t mention it and was arguing even shorter gaps between two jobs would break the continual legal residence. The tribunal decided that the gap break of 11 days was sufficient to break the period of continuous residence

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I am not entirely convinced that Judge Ward has it right in Cardiff CC v HM (HB) [2019] UKUT 271 (AAC).

He says this about OB v Secretary of State for Work and Pensions (ESA) [2017] UKUT 0255 (AAC);

4. Though I cannot see why it needed it if what it had earlier said was correct,
the FtT also sought to rely on OB v SSWP (ESA) [2017] UKUT 0255 (AAC) in
which Judge Rowland had held (at [30]):
“I am satisfied that Article 16 and regulation 15 should be interpreted
as requiring continuity of residence, but not necessarily continuity of
residence in accordance with the Directive or as a qualified person.
However, where a person’s right of permanent residence under
regulation 15 depends on his or her having resided in the United
Kingdom as a qualified person, the aggregate of any periods of
residence as a qualified person must amount to at least five years.”
.......
15. Ojo holds (para 20) that “The acquisition of a permanent right of residence
depends on continuous residence in a qualifying status”. There is no
indication that Ojo was cited to Judge Rowland in OB (a decision given on the
papers) and if it had been, his decision would be likely to have been different.
Nor does Ojo appear to have been cited in AP. I conclude that both cases
were decided per incuriam. The claimant’s representative does not seek to
argue that there is any reasoned basis for upholding OB in the face of Ojo.
To the extent that the FtT did rely on OB to get its decision home (which is
debatable) it was therefore further in error of law.

The difficulty is that the opening words in the passage quoted from OB have been omitted. These, importantly, are;

In these circumstances, I am satisfied that Article 16 and regulation 15 should
be interpreted as requiring continuity of residence…...

So Judge Rowland was not suggesting, as it might first appear, that in all circumstances, he was satisfied that Article 16 and regulation 15 should be interpreted as requiring continuity of residence, but not necessarily continuity of residence in accordance with the Directive or as a qualified person….etc.

What were the particular circumstances in OB? They were that the appellant, who had been a worker, had then become a student for just under a year (but not a student with a right of residence provided for directly in the Directive - i.e. she had no CSI and the course was not vocational) and had then become a worker again. Judge Rowland pointed out that had she returned to the EU country of which she was a citizen to study, this would not have broken continuity of residence (whilst not counting toward the 5 years) - see Art. 16(3). And given that the preamble to the Directive emphasises the importance of integration into the host member state, he thought it could not have been the intention that such periods of study should have the effect of re-setting the clock on the 5 years.

I think that looked at this way - i.e. it is a decision which expands on the circumstances where continuity of residence is not broken, rather than setting out a general principle that it is possible to aggregate periods of legal residence in order to arrive at the total number of years required for permanent residence - then it is not wrongly decided as Judge Ward suggests (and in any event his comments on the point are obiter). Further, the circumstances in Ojo were very different. That was a case about the third country dependent daughter of an EU citizen. She was automatically dependent whilst under the age of 21, but had spent a 6 month period living away from home where she was working and not dependant on her mother before a period of 5 years was up. I think an argument that this sort of gap should not break continuity is very different. Ojo had no rights as a worker during that six months and was, strictly speaking, not even legally entitled to be present in the UK during that period. That is very different from the factual situation in OB.

Elliot Kent
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Brian JB - 02 October 2019 03:34 PM

Thanks for that Elliot - I notice it is a June 2019 amendment in the DMG, covering income support (which was the benefit in question in the appeal). I recall it saying no gaps were allowed when I looked earlier in the year, but perhaps they have changed tack. I can see the ADM paragraphs you highlight have always said the same thing for UC. The presenting officer certainly didn’t mention it and was arguing even shorter gaps between two jobs would break the continual legal residence. The tribunal decided that the gap break of 11 days was sufficient to break the period of continuous residence

I hope you’re taking it to UT.

Brian JB
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Trying to - awaiting decision on application for permission to appeal from FTT at the moment.

Elliot Kent
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Good stuff, feel free to shout if I can help.

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Sorry for going off on one…..It’s just that the HM decision creates a problem in another case I have which has just come back down from UT and is up for re-hearing at FtT (https://www.gov.uk/administrative-appeals-tribunal-decisions/ods-v-secretary-of-state-for-work-and-pensions-uc-2019-ukut-192-aac) so I’m a bit exercised about it! :)

So more relevantly, I think the caselaw Elliot has linked to is what is needed here. Neither Ojo nor OB are particularly relevant in this case - they are both about whether there are circumstances where continuity can be preserved despite significant gaps, not the penny ante kind of gap involved in this case.

Brian JB
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All contributions and help welcome!! Very interesting to read the input of those of you more familiar with these arguments - we see only a small number of cases involving R2R. Generally we can sort them out but we get the odd one, like this, where I really can’t feel confident I know what the answer is, even though I feel it should be one way or the other

Ruth Knox
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As I’m sure people are aware, there’s masses of EU case law on acceptable gaps which don’t break continuity for the purposes of permanent residence or retaining workers’ status - say up to 3 months’ between signing on for JSA, but it would be reasonable to provide some evidence of reason for breaks,what claimant was doing etc