Introduction

The case of Boodhoo and another (EEA Regs: relevant evidence), reported as [2013] UKUT 346 (IAC), is a significant judicial decision rendered by the Upper Tribunal (Immigration and Asylum Chamber) on July 18, 2013. This case revolves around the application of the Immigration (European Economic Area) Regulations 2006 concerning the admissibility of post-decision evidence in appeals. The appellants, Sanjay Boodhoo, a Mauritian national, and Maria Gonzales Serano, a Spanish national and his wife, faced refusal of their residence documentation by the Home Office, which they subsequently appealed. The core issues pertain to the interpretation of section 85A of the Nationality, Immigration and Asylum Act 2002 and the relevance of evidence emerging after the original decision.

Summary of the Judgment

The appellants initially sought residence documentation under the EEA Regulations 2006, contingent upon Maria Serano being a qualified person. Their applications were refused on two grounds: first, the absence of a contract of employment during Serano's maternity leave, thereby questioning her status as a worker; second, the lack of comprehensive sickness insurance despite claims of self-sufficiency through savings and her husband's employment.

Upon appeal, the appellants presented a comprehensive sickness insurance certificate obtained post-decision, which the First-tier Tribunal dismissed based on section 85A and previous guidance from DR (Morocco)* [2005] UKAIT 38. The Upper Tribunal reversed this decision, determining that section 85A and the referenced guidance were inapplicable to EEA appeals. Consequently, the post-decision evidence was deemed admissible, leading to the approval of the appellants' residence documentation as of May 11, 2012.

Analysis

Precedents Cited

The judgment critically engages with previous legal authorities to substantiate its reasoning:

• Jessy Saint Prix v Secretary of State for Work and Pensions [2011] EWCA Civ 806: This Court of Appeal decision, pending a Supreme Court reference, was initially used by the Home Office to support a restrictive interpretation of the Directive concerning self-employed individuals on maternity leave.
• DR (Morocco) [2005] UKAIT 38: This guidance related to an earlier version of section 85 of the Nationality, Immigration and Asylum Act 2002, specifically addressing entry clearance appeals and not EEA regulations. The Upper Tribunal identified its misapplication in the present case.
• SGC and others (EEA-Date of Decision-1999 Act) Ireland [2005] UKAIT 179: While concerned with an earlier statute, this case was pivotal in indicating that, under section 85(4), tribunals must consider all relevant evidence, including that arising post-decision.
• LS (Post-decision evidence; direction; appeal ability) Gambia [2005] UKAIT 00085: Reinforced the principle that tribunals should determine facts as of the hearing date, supporting the admissibility of post-decision evidence.
• R v Pieck [1980] EUECJ 157/79: Clarified that residence documentation under EEA Regulations serves as evidential confirmation of status, not a discretionary source of rights.

Legal Reasoning

The Upper Tribunal meticulously dissected the applicability of section 85A of the Nationality, Immigration and Asylum Act 2002 and the associated DR (Morocco)* guidance. It concluded that these were irrelevant to EEA appeals under the 2006 Regulations. Section 85(4) unequivocally allows tribunals to consider any relevant evidence, including that arising after the initial decision, unless exceptions under section 85A apply. Since no such exceptions were pertinent in this EEA context, the post-decision comprehensive sickness insurance was rightfully admissible.

The Tribunal emphasized that the appellants' status as qualified persons under EU law was a matter of fact, not discretion. The comprehensive insurance evidence was not only relevant but determinative in establishing their eligibility for residence documentation. The Home Office's reliance on section 85A and prior decisions was found to be a fundamental legal error, warranting the setting aside of the initial appellate decision and the approval of the appellants' claims.

Impact

This judgment holds substantial implications for future EEA Regulation appeals:

• Admissibility of Post-decision Evidence: Reinforces that EEA appeals tribunals possess the inherent authority to consider evidence arising after the original decision, provided it is relevant to the substance of the appeal.
• Clarification of Legal Framework: Distinguishes the procedural nuances between different sections of the Nationality, Immigration and Asylum Act 2002 and their applicability, thereby ensuring more accurate future interpretations.
• Stakeholder Engagement: Highlights the necessity for the Home Office to engage appropriately with Tribunal observations, particularly regarding the admissibility of evidence.
• Consistency in Judicial Approach: Sets a precedent against misapplying guidance meant for different statutory contexts, promoting coherence and fairness in judicial decision-making.

Complex Concepts Simplified

Section 85A of the Nationality, Immigration and Asylum Act 2002

Section 85A deals with the limitations on the types of evidence that can be considered in immigration appeals. Specifically, it restricts the Tribunal's ability to consider certain evidence presented after the initial decision, under specific circumstances.

Section 85(4) of the Nationality, Immigration and Asylum Act 2002

This section grants immigration tribunals broad discretion to consider any relevant evidence pertaining to the substance of the decision, including evidence that emerges after the original decision was made.

EEA Regulations 2006

These regulations implement the rights established under the EU's Freedom of Movement Directive (Directive 2004/38/EC), allowing EEA citizens and their family members to reside and work in the UK under stipulated conditions.

Qualified Person

Under the EEA Regulations, a "qualified person" is someone who meets specific criteria set out by EU law, such as being employed, self-employed, studying, or possessing sufficient resources to avoid reliance on public funds.

Comprehensive Sickness Insurance

This refers to health insurance that provides extensive coverage for medical expenses. For EEA residence purposes, it ensures that the individual will not become a burden on the host state's healthcare system.

Conclusion

The Upper Tribunal's decision in Boodhoo v Secretary of State for the Home Department serves as a pivotal affirmation of the principles governing EEA Regulation appeals. By clarifying the inadmissibility of applying section 85A and the DR (Morocco) guidance to such cases, the Tribunal ensured that relevant evidence, even if emerging post-decision, is duly considered if it substantively impacts the appeal's core issues. This judgment not only rectified the appellants' predicament but also fortified the legal framework, ensuring greater fairness and consistency in future immigration appeals under the EEA Regulations 2006. Legal practitioners and appellants alike must heed this precedent to navigate the complexities of immigration law effectively.