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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> TB (EEA national: leave to remain?) Nigeria [2007] UKAIT 00020 (07 February 2007) URL: https://www.bailii.org/uk/cases/UKIAT/2007/00020.html Cite as: [2007] UKAIT 00020, [2007] UKAIT 20 |
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TB (EEA national: leave to remain?) Nigeria
[2007] UKAIT 00020
Date of hearing: 24th October, 2006
Date Determination notified: 07 February 2007
Mr C M G Ockelton, Deputy President of Asylum and Immigration Tribunal
Senior Immigration Judge Chalkley
Between
TB | APPELLANT |
and | |
Secretary of State for the Home Department | RESPONDENT |
A resident permit granted under the EEA Regulations is not Leave to Enter or Leave to Remain. A person who has a Residence Permit does not, therefore, meet any requirements of the Immigration Rules that he have Leave to Enter or Leave to Remain.
"The Immigration Judge misdirected himself on the effect of the notice of revocation and should have considered whether such revocation was justified given that the appellant had made application for variation of his leave prior to the revocation of the residence permit
- that the Immigration Judge further misdirected himself in concluding that the appellant lost his residence rights on the pronouncement of the decree absolute on 2nd March, 2005.
- that the Immigration Judge misdirected himself as to the proper interpretation of paragraph 295(D) of Statement of Changes in Immigration Rules HC 395
- that the Immigration Judge misdirected himself in interpreting Article 8 when the appellant had established a private and family life and any interference would be disproportionate."
"5. It is not disputed that the appellant was granted a residence permit which for argument sake is akin to a limited leave to enter or remain under the 1971 Immigration Act".
Further arguments in the skeleton argument were developed by Mr Olaogun before us. He submitted that the real issue was whether or not the appellant had leave at the time he made his application on 21st December, 2005. Before answering that question, Mr Olaogun suggested that it was necessary to consider first whether the respondent's revocation of a residence document on 20th March, 2006, had retrospective effect to cancel the appellant's leave prior to the making of his application on 21st December, 2005.
"In making the decision to refuse your application, consideration has been given to the following:
1. On 15th June 2002 you were granted further leave to remain in the United Kingdom as the spouse of …, a Dutch national exercising treaty rights in the United Kingdom until 15th June 2007."
"(i) the appellant has limited leave to remain in the United Kingdom which was given in accordance with any of the provisions of these Rules;"
because although he did not have limited leave to remain he did have a residence permit which is akin to leave and, he suggested, the Immigration Rule should be given a positive interpretation. The appellant's right of residence as the dependant of an EEA national is not, suggested Mr Olaogun, dependent upon the marriage subsisting. The residence permit did not itself terminate until it was subsequently revoked and it could not have been revoked retrospectively. The revocation was an act of bad faith by the Secretary of State because the appellant was not an overstayer and had already applied under paragraph 295D.
"(i) the applicant has limited leave to remain in the United Kingdom which was given in accordance with any of the provisions of these Rules."
Signed Date
Senior Immigration Judge Chalkley