Introduction

The case of OP (EEA; Permanent Right of Residence) Colombia ([2008] UKAIT 00074) presents a pivotal determination regarding the applicability and retrospective effect of the Immigration (European Economic Area) Regulations 2006. The appellant, a Colombian national born on September 29, 1966, entered the United Kingdom on August 12, 1992, initially granted a six-month visitor visa. Subsequently, he married a Portuguese national exercising her Treaty rights in the UK, leading to the issuance and renewal of his family permit until September 28, 2003.

In August 2003, the appellant was convicted of serious sexual offenses and subsequently deported on the grounds that his removal was conducive to the public good under section 3(5)(a) of the Immigration Act 1971. The appellant appealed, asserting his entitlement to a permanent right of residence under the EEA Regulations 2006, which he argued was accrued through his five-year continuous residence with his EEA spouse. The Tribunal and subsequent reconsideration reaffirmed his deportation, leading to this comprehensive judgment.

Summary of the Judgment

The United Kingdom Asylum and Immigration Tribunal, after thorough examination, dismissed the appellant's appeal, determining that he failed to establish a permanent right of residence under Regulation 15 of the Immigration (European Economic Area) Regulations 2006. The Tribunal concluded that the appellant's residence prior to the commencement of the 2006 Regulations could not be retroactively considered towards the five-year continuous residence requirement. Consequently, the more restrictive grounds for removal under Regulations 19(3) and 21 were rightly applied, and his removal was deemed not to breach Article 8 of the European Convention on Human Rights.

Analysis

Precedents Cited

The appellant's legal team referenced several key cases to support his claim:

• MG and VC (EEA Regulations 2006; "conductive" deportation) Ireland [2006] UKAIT 00053 - This case examined the transitional provisions of the 2006 Regulations.
• NB and JN (right of permanent residence) France [2007] UKAIT 00039 - This decision addressed the acquisition of permanent residence rights under continuous residence.
• Kungwengwe [2005] EWHC 1427 (Admin) - Focused on whether residence under the 1994 EEA Order could influence long residency provisions.

The Tribunal critically analyzed these precedents, distinguishing the current case's specifics and emphasizing the non-retroactive nature of the 2006 Regulations.

Legal Reasoning

Central to the Tribunal's reasoning was the interpretation of Regulation 15 of the 2006 Regulations, which delineates the acquisition of a permanent right of residence for family members of EEA nationals after five years of continuous residence under the 2006 framework. The appellant contended that his prior residence under the 1994 and 2000 EEA Orders should be considered towards this requirement.

The Tribunal rejected this argument, asserting that the 2006 Regulations were not intended to retroactively apply to periods of residence governed by earlier EEA instruments. Specifically, the continuous five-year period must be fulfilled in accordance with the 2006 Regulations, commencing no earlier than their effective date, April 30, 2006. The appellant's residence period, largely under the 2000 Regulations and preceding the 2006 Regulations' enactment, fell short of this mandate.

Additionally, the judgment underscored that Schedule 4, paragraph 6(1) of the 2006 Regulations only allows residence under the 2000 Regulations to count towards the five-year requirement, but does not extend this consideration to the 1994 Order. Consequently, any residence prior to the 2006 Regulations' commencement remained irrelevant to the appellant's claim.

Impact

This judgment reinforces the principle that immigration regulations are applied prospectively unless explicitly stated otherwise. It clarifies that rights under newer regulations, such as the 2006 EEA Regulations, are not to be backdated to include previous periods of residence under earlier legal frameworks unless specifically provided for. This has significant implications for future cases where appellants may seek to leverage prior residence under outdated regulations to establish current rights.

Furthermore, it delineates the boundaries of transitional provisions, preventing the dilution of established immigration controls by ensuring that only relevant and current legal frameworks are applied to determine rights and statuses.

Complex Concepts Simplified

• Permanent Right of Residence: A status granted to non-EEA family members of EEA nationals who have lived continuously in the UK for five years under specific regulations, granting them similar rights to EEA nationals in terms of residence and association with family members.
• Continuous Residence: An uninterrupted period of lawful residence in the UK without significant absences, typically for five years, qualifying an individual for certain immigration statuses or rights.
• Regulation 15: A provision within the 2006 EEA Regulations that specifies the criteria for acquiring a permanent right of residence, emphasizing the need for continuous residence in accordance with the same set of regulations.
• Non-Retroactivity: A legal principle whereby new laws or regulations do not apply to actions or periods preceding their enactment unless explicitly stated.
• Schedule 4, Paragraph 6(1): A specific provision allowing certain periods of residence under the 2000 EEA Regulations to be deemed as continuing under the 2006 Regulations, but not extending to earlier legal instruments like the 1994 EEA Order.

Conclusion

The judgment in OP (EEA; Permanent Right of Residence) Colombia serves as a definitive clarification on the application and limitations of the Immigration (European Economic Area) Regulations 2006. It underscores the necessity for appellants to meet the five-year continuous residence requirement strictly within the framework of the 2006 Regulations, without reliance on prior legal provisions unless explicitly permitted.

By rejecting the appellant's attempt to retroactively apply older regulations to establish a permanent right of residence, the Tribunal reinforced the integrity and temporal boundaries of immigration law. This ensures that legislative updates are consistently and fairly applied, maintaining the intended structures and protections within the UK's immigration system.

The judgment not only resolves the appellant's case but also sets a clear precedent for future litigations, emphasizing the importance of adhering to current legal standards and the non-retroactive application of immigration regulations.