Introduction

The case of PM (EEA Spouse Residing with) Turkey [2011] UKUT 89 (IAC) addresses critical aspects of immigration law pertaining to the permanent residence rights of non-EEA family members of EEA nationals in the United Kingdom. The appellant, a Turkish national, sought a permanent residence card under Regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006. The core issue revolved around the interpretation of the "residing with" requirement, particularly whether it necessitates living in a common family home or merely cohabiting within the UK.

Summary of the Judgment

Analysis

Precedents Cited

The Tribunal critically examined the reliance on the case OA (EEA-retained right of residence) Nigeria [2010] UKAIT 00003, initially cited by the IJ to support the requirement of living in a common household. However, the Tribunal identified that this case pertained to a different regulation (15(1)(f)) and involved circumstances where the EEA national did not meet the residency conditions, thus not directly applicable to Regulation 15(1)(b). Additionally, the European Court of Justice (ECJ) decision in Diatta v Land Berlin [1985] ECR 567 was referenced to interpret similar provisions, reinforcing the notion that residing does not equate to cohabiting in the same household.

Legal Reasoning

The Tribunal methodically analyzed the statutory language of Regulation 15(1)(b), emphasizing that "resided in the United Kingdom with the EEA national" should be interpreted as co-residence within the UK rather than cohabitation in the same household. This interpretation aligns with the broader context of the Regulations and the objectives of the Citizens Directive, which seeks to facilitate the free movement and residence of family members without imposing undue restrictions based on household arrangements. The Tribunal also highlighted the potential for discriminatory outcomes if the IJ's interpretation were upheld, as it would inconsistently treat non-EEA spouses based on the nationality of the EEA national.

Furthermore, the Tribunal considered the legislative intent behind the Regulations and the Directive, noting the absence of language that imposes a household cohabitation requirement. By adhering to a more inclusive interpretation, the Tribunal ensured that the Regulations fulfill their purpose of harmonizing UK law with EU standards, particularly regarding the rights of non-EEA family members.

Impact

This judgment sets a significant precedent by clarifying the interpretation of "residing with" in the context of permanent residence under the EEA Regulations. It ensures that non-EEA family members are not unduly restricted by requirements related to household cohabitation, promoting fairness and consistency in the application of immigration laws. Future cases will likely reference this decision to support broader interpretations of residency requirements, thereby facilitating the rights of family members to reside permanently in the UK alongside their EEA spouses without facing unnecessary living arrangement constraints.

Complex Concepts Simplified

Regulation 15(1)(b) Explained

Regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 allows a non-EEA family member of an EEA national to obtain permanent residence in the UK after five continuous years of residence. The key requirement is that the non-EEA family member has been residing in the UK with the EEA national during this period. Importantly, "residing with" does not mean living in the same house or household but simply cohabiting in the UK.

Cohabitation vs. Common Household

The distinction between cohabitation and living in a common household is critical. Cohabitation refers to residing in the same geographic location (the UK, in this case) without the necessity of sharing the same living space. In contrast, living in a common household implies sharing the same home, which was the initial interpretation by the Immigration Judge but later overturned by the Upper Tribunal.

Citizens Directive

The Citizens Directive is European Union legislation that governs the free movement and residence rights of EU citizens and their family members within member states. It aims to ensure that family members are not discriminated against based on nationality and have the right to live, work, and reside in the same host country as the EU citizen.

Conclusion

The Upper Tribunal's decision in PM (EEA Spouse Residing with) Turkey [2011] UKUT 89 (IAC) marks a pivotal interpretation of residency requirements for permanent residence under the EEA Regulations. By establishing that "residing with" merely necessitates co-residence within the UK, regardless of household living arrangements, the Tribunal aligns UK law with the overarching principles of the Citizens Directive, promoting non-discriminatory and fair treatment of non-EEA family members. This judgment not only rectifies the previous misinterpretation but also sets a clear standard for future cases, ensuring that the rights of family members are upheld in accordance with both national and European legal frameworks.