EU Regulations and Incapacity – Permanent Residence Application Success
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
We acted for an Algerian national who applied for a permanent residence card as confirmation of his right of permanent residence under the European Community law, as the husband of a French national. The interesting element of it was that the EA national was a self-employed person, a worker, and a temporarily incapacitated person for the purpose of the relevant continuous period of five years relied upon. The Home Office refused this application, stating that the husband failed to provide evidence that his wife had been engaged in economic activity as a self-employed person from April 2008 to October 2009 and was not satisfied that adequate evidence had been submitted to demonstrate that his wife had been temporarily incapacitated since September 2010.
The application was refused.
When we were instructed, we decided to take a different approach. We provided evidence from a psychiatrist called Dr McDermott together with witness statements and a substantial bundle comprising of 307 pages. The Home Office on the day stated that in light of the evidence produced, the Home Office considered that the appellant had addressed the respondent’s concerns regarding economic activity for some of the periods and therefore the sole issue before the Judge was whether or not the wife was temporarily incapacitated due to ill-health. The Judge, in reaching his findings, had taken full account of all the evidence before him to include a substantial volume of medical evidence, and the benefit of the oral evidence from the husband and the wife. The Judge found both husband and wife to be credible witnesses, and he confirmed that he was greatly assisted by the psychiatric assessment prepared by Dr McDermott.
The summary provided by Dr McDermott reflected the information otherwise contained within the individual hospital reports, and the Judge attached weight to Dr McDermott’s assessment that the sponsor’s inability to work was not for a single reason at any one time, but is likely to have engaged a complex interaction of her multiple physical ill-health issues and vulnerable mental ill-health.
Therefore, the conclusion was that the sponsor has not been actively working since September 2010 and that this was for a reason that she was temporarily incapacitated. He was a family member of an EA national who was not himself an EA national but who has resided in the UK with his EA national wife in accordance with the Regulations for a continuous period of five years.
The appeal was allowed.