Case No. UKUT-00162-(IAC)

. The policy in question took the form of a Home Office Nationality Instruction entitled “European Economic Area and Swiss Nationals”. Paragraph 8.1 of this policy stated that as regards the period prior to 02 October 2000 – “ Evidence that the person concerned was exercising any description of EEA free movement right in the UK on the relevant date should be accepted as evidence that he or she was not, then, ‘subject under the immigration laws to any restriction on the period for which [they] might remain in the United Kingdom’. ” In Fransman’s British Nationality Law (3 rd Edition) it is stated at paragraph 13.2.2 (page 337): “ To be settled in the UK or an overseas territory, a person must be ‘ordinarily resident’ and, simultaneously, not ‘subject under the immigration laws to any restriction on the period for which he may remain’ (i.e. he must be without time restrictions). ” 15. Fransman also addresses the phrase “ without time restrictions ”. He suggests, at paragraph 13.2.5: “ ’Without being subject to time restrictions’ is mainly a matter of fact, whether or not the status involves a time restriction. ” With regard to the first element of this proposition, I confine myself to the observation that, in the abstract at least, a time restriction could arise by operation of law, via legislation whether primary or secondary and could also arise by virtue of Government policy, whether through the medium of the Immigration Rules or otherwise. Thus there is scope for debate about whether “ being subject to time restrictions ” is, as Fransman advocates, mainly a matter of fact. Having said that, the terms in which a residence authorisation are couched would be primarily a matter of fact, though construction of the document would be a matter of law. The second element of the proposition is probably not designed to add in substance to the first and does not in my view do so. 16. The status under the 1981 Act of EC nationals (as they then were) was addressed specifically by the Immigration Appeal Tribunal (the “ IAT ”) in the case of Gal [TH/25885/92 10620]. The argument developed, in substance, was that the EU national concerned, a French citizen, was settled in the United Kingdom because, as an employee, he had a right of residence not limited by any time restriction. The Tribunal’s rejection of this argument was unequivocal. It held that an EC national residing in the United Kingdom equipped with a residence permit is not “ settled ” within the compass of section 1(1) of the 1981 Act. The rationale for thus holding was simple: the period during which such a person may remain in the United Kingdom is conditional upon remaining economically active. The operative passage of the decision is at page 10: “We accept that so long as Mr. Zilberberg** qualified for a residence permit he had a right of residence but to be “settled” a person must have no restriction “for the period which he could remain”. Mr. Zilberberg could remain under his European Law right only for a period during which he qualified under European Law for residence i.e. he met the terms of any particular European Law category on which he relied. So as an employee he had to remain a “worker” within the meaning of European Law. Even the residual residence category requires non-recourse to public funds. The period for which Mr. Zilberberg could remain was not restricted directly by time but so long as qualifications are needed the period is restricted and, more, is restricted as to its duration. The need for continued qualification is to be contrasted with indefinite leave to remain which may only be terminated by deportation. It follows that Mr. Zilberberg was never settled in this country and it was not open to Mrs. Gal to claim any right under paragraph 132.” [** The EU national in the equation] One of the distinctive features of the Appellant’s arguments is that they do not mention, much less acknowledge, this decision. The same observation applies to the grounds of appeal and submissions of the Secretary of State. 17. It would appear that in Gal an appeal to the Court of Appeal was initiated, but not pursued. It seems surprising, at this remove, that the issue which Gal decided does not feature in other reported decisions of the Upper Tribunal (or its predecessors) and has not been authoritatively determined by the Court of Appeal. Fransman suggests that the decision generated some controversy. While the benefit of comprehensive adversarial argument would obviously have been welcome, I am satisfied that Gal was correctly decided. However, for the reasons explained below, my analysis is that while the outcome in Gal was correct the underlying