ZA v Secretary of State for the Home Department

Immigration – Residence. The First-tier Tribunal (immigration and Asylum Chamber) had erred in its decision that the appellant’s relocation to Ireland with her husband had not been a genuine settlement, but a staged arrangement in order to generate the conditions in order to benefit from a free movement right. The Upper Tribunal (Immigration and Asylum Chamber) summarised the position where a national of one member state had exercised the right of freedom of movement to take up work in another member state and the consideration of the genuineness of that intention to settle in respect of a family member’s rights.

The appellant Afghan national was married to a British citizen. Her applications for entry clearance as a spouse were refused. The appellant’s husband, taking advantage of his free movement rights under EU Treaties, settled in Ireland and he applied successfully for a family permit. The appellant joined her husband in Ireland. The couple returned to the UK and the appellant applied for a residence permit pursuant to reg 9.3 of the Immigration (European Economic Area) Regulations 2016, SI 2016/1052. That application was refused. The First-tier Tribunal (Immigration and Asylum Chamber) (the FTT), dismissing the appellant’s appeal, held that the residence in Ireland of the appellant and her husband had not been genuine. The appellant appealed.

The appellant’s case was that the couple’s intentions in seeking to live in another member state were not relevant and that the FTT had improperly considered motivation in assessing whether the residence was the genuine and had, in effect, imported the abuse of rights concept improperly into his conclusion.

Appeal allowed

Source; LexisNexis