EA v The Secretary of State for the Home Department [2008] UKAIT 17

[2008] UKAIT 00017

ASYLUM AND IMMIGRATION TRIBUNAL

THE IMMIGRATION ACTS

Venue Heard at: Field House Date of Hearing: 5 February 2008

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal

Senior Immigration Judge Latter

Between

EAAppellant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Appellant

THE SECRETARY OF STATE for HOME DEPARTMENT

Respondent

The Appellant: in person for in person

Mr. L. Tarlow, Home Office Presenting Officer for Respondent

(1) The Citizens right to be admitted to the UK for a period of three months under the Citizens Directive and the EEA Regulations does not entitle an EEA national to add three months to the end of a period of lawful presence in the UK. (2) A Bulgarian or Romanian national has to comply strictly with the provisions of the 2006 Regulations in order to obtain the benefits derived from them.

DETERMINATION AND REASONS

Date 2008-03-07

[1]The appellant is a citizen of Bulgaria. He appealed to the Tribunal against the decision of the respondent on 14 May 2007 refusing to issue him a registration certificate as confirmation of a right of residence in the United Kingdom under European Community Law. The Immigration Judge dismissed his appeal. The appellant applied for and obtained an order for reconsideration. Thus the matter comes before us.

[2]A number of facts are beyond dispute in this appeal. The appellant came to the United Kingdom on 14 April 2006. He did so relying on entry clearance as a work permit holder that had been issued to him on 12 April and on its face expired on 12 April 2007. He worked in virtue of a work permit which expresses the period for which permission to work is given as twelve months from the date of the grant of leave to enter the United Kingdom.

[3]It is right to say that the appellant left the United Kingdom for a holiday in late November or December 2006. He returned during December 2006 in reliance (and we should emphasise, perfectly lawful reliance) again on the entry clearance in his passport. On the 30 April 2007 the appellant made the application that gave rise to the present refusal and appeal.

[4]The application is made on the basis that by that date he had worked legally in the United Kingdom for a period of twelve months extending over the New Year 2007 when Bulgaria became a member of the European Union.

[5]The status of the appellant is governed in the United Kingdom by the Accession (Immigration and Worker Authorisation) Regulations 2006 (SI 2006/3317) which govern matters relating to Bulgaria and Romania, the countries which together became members of the Union of the 1 January 2007. Those regulations make provision for authorisation for workers who are citizens of Bulgaria and Romania, and for authorisation arrangements to cease under certain circumstances, when nationals of Bulgaria and Romania then become, for all United Kingdom purposes, equivalent to nationals of other Member States.

[6]The crucial provision is that a person who is a citizen of Bulgaria or Romania who has worked legally in the United Kingdom for a period of twelve months, that extends over the accession date, becomes at the expiry of that period a person who is no longer subject to the authorisation arrangements. The appellant says that he is such a person. The respondent says the appellant is not such a person.

[7]The appellant’s argument is a simple one. He arrived lawfully with entry clearance as a work permit holder on the 14April 2006. His work permit extended for twelve months. On the 14th of April 2007, still working in accordance with the work permit, he had therefore completed twelve months lawful work. He is therefore, he says, entitled to be exempt from the authorisation provisions.

[8]The argument put by Mr. Tarlow on behalf of the respondent is substantially more complex, but is not necessarily the worse for that. It is as follows. The appellant had a work permit which authorised him to work for a period of twelve months from his date of his leave to enter. Every work permit holder, and the appellant has not suggested that he is any different, is told that his work permit itself gives him no permission to be in the United Kingdom. He must, as well, obtain entry clearance, or, if he is already here, an extension of his existing leave. The appellant obtained such entry clearance and used it; as we have indicated, he used it twice.

[9]What period of leave to enter did his entry clearance give him? The answer is to be found in the provisions of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161); Article 4(3) of which provides that in the case of entry clearance to which that paragraph applies (and the appellant’s entry clearance is such an entry clearance) the period of leave is a period “being the period beginning on the date that the holder arrives in the United Kingdom and ending at the date of the expiry of the entry clearance”. For those purposes, therefore, the appellant’s leave to enter expired on 12 April 2007.

[10]Although his permission to work, if he otherwise met the requirements of UK immigration law, expired two days later, he had no leave to enter the United Kingdom after 12 April 2007. It would appear to follow from that, taken by itself, that the appellant’s last two days of his twelve months’ work, upon which he relies, were not days on which he was working legally here: they were days on which he was working here in accordance with a work permit, but contrary to the provisions of immigration law, because he had no extant leave.

[11]The appellant says that, under those circumstances, his leave should nevertheless be regarded as continuing. He gives two reasons for that. The first is that, given that he had a work permit, he was entitled to assume that he had continuing leave to enter. That argument, we are sorry to say, is simply not worthy of him. He knew, because the visa is in his passport, that the document upon which he had relied for admission to the United Kingdom expired on 12 April, and he did nothing to regularise his position until over two weeks later.

[12]The second argument is substantially more subtle. It is this: The appellant’s own country became a member of European Union on the 1 January 2007. The appellant points out that a citizen of a European Union country is entitled to be in the United Kingdom, or indeed any other Member State, for a period of three months under the provisions of the Citizens Directive 2004/38/EC. He argues that, on the expiry of his leave to enter the United Kingdom, if it be said that it did expire on 12 April 2007, he than began a period of three months lawful presence under the provisions of that Directive.

[13]We do not find the decision in this case easy, not only because neither party has been able to give us a great deal of assistance with the detailed law, but also because it may seem hard that a decision depends on two days. There is no doubt, however, that the structure of immigration law does require that presence be lawful presence, and unlawful presence (that is to say presence after expiry of existing leave, or presence without leave) has the character of unlawful presence however short it is.

[14]We ought to look first at the appellant’s argument based on his right as an EU citizen. The relevant provisions are in art 6 of the Directive as follows. “Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport”. There is no doubt that the appellant has a valid identity card or passport. We have already referred to the entry clearance endorsed in it.

[15]But there is also, of course, no doubt that that the appellant had three months residence in the United Kingdom from the moment of Accession of Bulgaria until the end of March 2007. He did not, at that time, seek to rely on his Bulgarian nationality as giving him a right to that residence. Can he then claim that his right of residence for three months began when his leave to enter expired? We see no reason to suppose that he can. If he relies on the Directive, he has three months from the moment when he first became an EU national in the United Kingdom; that was the first moment of the 1st January 2007 and expired, as we have said, at the end of March. It cannot suffice to render his presence here in April lawful.

[16]If we look instead to the United Kingdom’s regulations which are the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), we find in reg 11(1) a provision that:

“An EEA national must be admitted to the United Kingdom if he produces on arrival a valid national identity card or passport issued by an EEA State.”, and in reg 13(1): “An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date on which he is admitted to the United Kingdom provided that he holds a valid national identity card or passport issued by an EEA State.”

We see nothing in those Regulations that suggests that they are inconsistent with the Directive they purport to implement: and there is nothing in them that assists the appellant, because he has never sought admission to the United Kingdom, or been admitted to the United Kingdom, on the strength of being a national of an EEA State. On the contrary, as we have indicated, on his last admission to the United Kingdom he was admitted by virtue of his entry clearance as a work permit holder. That was because the date of that admission was before Bulgaria’s accession to the Union. That is sufficient to deal with the appellant’s second argument based on his right as a Union citizen to reside in the United Kingdom for a period of three months lawfully.

[17]Can anything, therefore, be done with his claim that the work permit gave him, or implied for him some leave which is sufficient for the purposes of the Accession Regulations, because it is on those Regulations that he must depend for the relief which he seeks? The appellant cited to us a number of the provisions of the Regulations, but unfortunately for him the answer in his case is provided by other provisions of the Regulations which deal very precisely with his situation. We need to set out the whole of the relevant provisions, which are as follows.

[18]In Regulation 2, headed “Accession State national subject to worker authorisation”, we find the following para (4) “A national of Bulgaria or Romania who legally works in the United Kingdom without interruption for a period of 12 months falling partly or wholly after 31st December 2006 shall cease to be an accession State national subject to worker authorisation at the end of that period of 12 months”. That is the provision on which the appellant relies.

[19]In para 12 of the same Regulation we find this at sub-paragraph (b):

“(b) a person working in the United Kingdom on or after 1st January 2007 is legally working during any period in which he— (i) [does not apply] (ii) holds an accession worker authorisation document and is working in accordance with the conditions set out in that document;….” (i) [does not apply] (ii) holds an accession worker authorisation document and is working in accordance with the conditions set out in that document;….”

[20]What then is an ‘accession worker authorisation document’? The answer to that question is found first in reg 1(e) which provides that the phase be interpreted in accordance with reg 9(2). Regulation 9(2) needs to be read with reg 9(3) and the relevant parts are as follows. “9.— (2) For the purpose of these Regulations, an accession worker authorisation document is— (a) a passport or other travel document endorsed before 1st January 2007 to show that the holder has leave to enter or remain in the United Kingdom under the 1971 Act, subject to a condition restricting his employment in the United Kingdom to a particular employer or category of employment; … (3) But a document shall cease to be treated as an accession worker authorisation document under paragraph (2)— (a) in the case of a document mentioned in paragraph (2)(a), at the end of the period for which leave to enter or remain is given;….” (a) a passport or other travel document endorsed before 1st January 2007 to show that the holder has leave to enter or remain in the United Kingdom under the 1971 Act, subject to a condition restricting his employment in the United Kingdom to a particular employer or category of employment; … (a) in the case of a document mentioned in paragraph (2)(a), at the end of the period for which leave to enter or remain is given;….”

[21]Unfortunately for the appellant those Regulations exactly confirm the position argued by Mr. Tarlow. At the end of the period of validity of the visa the appellant ceased to have leave to enter under the Leave to Enter and Remain Order. On that date, which was 12 April 2007, the document on which he relied for the purposes for the Accession Regulations ceased to be an accession worker authorisation document. The last two days of the work, which he undertook under his work permit, were therefore days on which, according to the very Regulations on which he relies for the relief he seeks, his work was not legal work and he accordingly cannot bring himself within the provisions of reg 2(4).

[22]For those reasons the Immigration Judge made no material error in law because on the facts as agreed by both sides the appeal was bound to be dismissed. We therefore order that his determination shall stand. C M G OCKELTON DEPUTY PRESIDENT Date: