What period of leave to enter did his entry clearance give him? The answer is to be found in the provisions of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161); Article 4(3) of which provides that in the case of entry clearance to which that paragraph applies (and the appellant's entry clearance is such an entry clearance) the period of leave is a period "being the period beginning on the date that the holder arrives in the United Kingdom and ending at the date of the expiry of the entry clearance". For those purposes, therefore, the appellant's leave to enter expired on 12 April 2007.
Although his permission to work, if he otherwise met the requirements of UK immigration law, expired two days later, he had no leave to enter the United Kingdom after 12 April 2007. It would appear to follow from that, taken by itself, that the appellant's last two days of his twelve months' work, upon which he relies, were not days on which he was working legally here: they were days on which he was working here in accordance with a work permit, but contrary to the provisions of immigration law, because he had no extant leave.
The appellant says that, under those circumstances, his leave should nevertheless be regarded as continuing. He gives two reasons for that. The first is that, given that he had a work permit, he was entitled to assume that he had continuing leave to enter. That argument, we are sorry to say, is simply not worthy of him. He knew, because the visa is in his passport, that the document upon which he had relied for admission to the United Kingdom expired on 12 April, and he did nothing to regularise his position until over two weeks later.
The second argument is substantially more subtle. It is this: The appellant's own country became a member of European Union on the 1 January 2007. The appellant points out that a citizen of a European Union country is entitled to be in the United Kingdom, or indeed any other Member State, for a period of three months under the provisions of the Citizens Directive 2004/38/EC. He argues that, on the expiry of his leave to enter the United Kingdom, if it be said that it did expire on 12 April 2007, he than began a period of three months lawful presence under the provisions of that Directive.
We do not find the decision in this case easy, not only because neither party has been able to give us a great deal of assistance with the detailed law, but also because it may seem hard that a decision depends on two days. There is no doubt, however, that the structure of immigration law does require that presence be lawful presence, and unlawful presence (that is to say presence after expiry of existing leave, or presence without leave) has the character of unlawful presence however short it is.
We ought to look first at the appellant's argument based on his right as an EU citizen. The relevant provisions are in art 6 of the Directive as follows.
There is no doubt that the appellant has a valid identity card or passport. We have already referred to the entry clearance endorsed in it.
But there is also, of course, no doubt that that the appellant had three months residence in the United Kingdom from the moment of Accession of Bulgaria until the end of March 2007. He did not, at that time, seek to rely on his Bulgarian nationality as giving him a right to that residence. Can he then claim that his right of residence for three months began when his leave to enter expired? We see no reason to suppose that he can. If he relies on the Directive, he has three months from the moment when he first became an EU national in the United Kingdom; that was the first moment of the 1 st January 2007 and expired, as we have said, at the end of March. It cannot suffice to render his presence here in April lawful.
If we look instead to the United Kingdom's regulations which are the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), we find in reg 11(1) a provision that:
and in reg 13(1):
We see nothing in those Regulations that suggests that they are inconsistent with the Directive they purport to implement: and there is nothing in them that assists the appellant, because he has never sought admission to the United Kingdom, or been admitted to the United Kingdom, on the strength of being a national of an EEA State. On the contrary, as we have indicated, on his last admission to the United Kingdom he was admitted by virtue of his entry clearance as a work permit holder. That was because the date of that admission was before Bulgaria's accession to the Union. That is sufficient to deal with the appellant's second argument based on his right as a Union citizen to reside in the United Kingdom for a period of three months lawfully.
Can anything, therefore, be done with his claim that the work permit gave him, or implied for him some leave which is sufficient for the purposes of the Accession Regulations, because it is on those Regulations that he must depend for the relief which he seeks? The appellant cited to us a number of the provisions of the Regulations, but unfortunately for him the answer in his case is provided by other provisions of the Regulations which deal very precisely with his situation. We need to set out the whole of the relevant provisions, which are as follows.
In Regulation 2, headed "Accession State national subject to worker authorisation", we find the following para (4)
That is the provision on which the appellant relies.
In para 12 of the same Regulation we find this at sub-paragraph (b):
What then is an 'accession worker authorisation document'? The answer to that question is found first in reg 1(e) which provides that the phase be interpreted in accordance with reg 9(2). Regulation 9(2) needs to be read with reg 9(3) and the relevant parts are as follows.
Unfortunately for the appellant those Regulations exactly confirm the position argued by Mr. Tarlow. At the end of the period of validity of the visa the appellant ceased to have leave to enter under the Leave to Enter and Remain Order. On that date, which was 12 April 2007, the document on which he relied for the purposes for the Accession Regulations ceased to be an accession worker authorisation document. The last two days of the work, which he undertook under his work permit, were therefore days on which, according to the very Regulations on which he relies for the relief he seeks, his work was not legal work and he accordingly cannot bring himself within the provisions of reg 2(4).
For those reasons the Immigration Judge made no material error in law because on the facts as agreed by both sides the appeal was bound to be dismissed. We therefore order that his determination shall stand.
C M G OCKELTON
DEPUTY PRESIDENT