Development regarding other family members of EEA nationals- evidence to establish dependency
Moneke (EEA OFMs - assessment of evidence) Nigeria [2011] UKUT 430 (IAC) (11 November 2011)
This Upper Tribunal case was heard on 5th October 2011 at Field House. This determination is related to the decision in Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 00341 (IAC) and should be read in conjunction with it to have a full understanding of the facts of the case.
Facts of the case
The appellants appeals were dismissed by the First Tier Tribunal and the Upper Tribunal directed that the decisions would be remade after hearing evidence. The appellants claim to be other family members (OFM’s) of their cousin who is an EEA national within the terms of the Immigration (European Economic Area) Regulations 2006 and in accordance with the Citizens Directive 2004/28/EC. The EEA national had left Nigeria for Germany in 1997 and subsequently acquired German citizenship in 2002. The appellants are his cousins. The issue at teh appeal was whether they were dependants on him or members of his household.
The appellants live with their cousin in Nigeria until they arrived in the UK. The appellants argue that the EEA national supported them through school and apprenticeships and that he met all their essential needs. Therefore, they were his dependants. They were members of his household as they were physically present in his household from October 2002 when their cousin became an EEA national and their entry into the UK.
The respondents refused their applications for a number of reasons including that they were unreliable witnesses, there was an absence of documentary evidence supporting dependency and the lack of reliable evidence regarding the circumstances of their entry into the UK.
Conclusion
The Tribunal were not satisfied that the appellants were dependants on the EEA national and accepted, as a whole, the respondent’s arguments. Inconsistencies with the appellants’ evidence and chronology of events lead the Tribunal to discredit their evidence. The Tribunal confirmed that with in country OFM applications, the immigration judge would need to closely scrutinise the eligibility of the evidence to ascertain whether eligibility had been discharged.
The Upper Tribunal held as follows:
In the present case, the Upper Tribunal was not satisfied by the evidence because:
a) There were substantial gaps in the evidence produced by the appellants despite the opportunity afforded to submit further material in the light of our previous decision.
b) The appellants produced no documentary evidence to support their claims: (i) to have been provided with financial support by their sponsor to meet their essential living needs when the sponsor was in Germany or before that in Nigeria; (ii) that they lived in the sponsor’s household in Nigeria; (iii) that they were in apprenticeships with nil earnings in Nigeria; (iv) the amount of material support they needed to meet their essential living needs.
c) The oral evidence was implausible as to material parts and flawed by inconsistencies.
d) Both appellants misrepresented their intentions when seeking to enter as visitors.
The appeals were subsequently dismissed.
November 2011
Other Family Members/Extended Family Members applications for residence cards
TA & Ors (2006 Regs - reg 8) Nigeria [2011] UKUT 00253 (IAC) (28 June 2011)
This Upper Tribunal case was heard on 7th June 2011 at Field House. The case involved three appellants, all citizens of Nigeria. The first appellant entered the UK on a visitor’s visa and overstayed whilst the other two appellants had entered illegally. The appellants had a maternal cousin who is an EEA national (Dutch citizen) and who is their sponsor. She arrived in the UK in April 2008 and she has been exercising her Treaty rights here since.
Undisputed facts of the case
· Between 2004 and the dates when the appellants decided to travel to the UK, they were living with the EEA national in Nigeria in accommodation which she provided and they were dependant on her financially
· The EEA national sponsor continued to financially support them between the date of their arrival in the UK and her arrival in the UK
· Since April 2008, the appellants lived with the sponsor in accommodation she rented in London and she continues to support the appellants financially
The appellants each made an application for an EEA residence card as extended family members which was refused by the respondent (Secretary of State) in her decision dated 9th August 2010. The appellants appealed against the decision and came before the First Tier Tribunal. The Immigration Judge at the First Tier Tribunal dismissed their appeals on the basis that they did not meet the requirements set out in regulations 8 of the Immigration (European Economic Area) Regulations 2006 (herein after referred to as the EEA Regs). Reg 8 provides that extended family members must be either ‘accompanying or joining’ the EEA national in the UK. The Immigration Judge placed reliance on the Court of Appeal authority of KG (Sri Lanka) [2008] EWCA Civ 13 which looked at other family members (OFM’s). In that case the Court concluded as follows:
“That is why, to qualify, the relatives must either come with the Union Citizen when he is exercising his rights or join him once he has exercised those rights. That purpose and justification is not borne our when an OFM who has already for many years been in breach of the immigration laws of a member state seeks to use the arrival there of his Union citizen relative as a means of legitimising his own previous breach”.
Tribunals Assessment
The Tribunal confirmed that OFM’s/extended family members must establish dependency on the EEA national or membership of the EEA nationals household both in the country from which they arrived and in the host Member State. They also confirmed that the OFM/extended family member does not need to have been resident in another Member State prior to arrival in the host Member State therefore disapplying this requirement in regulation 12(1)(b) and bringing about the Immigration (European Economic Areas) (Amendment) Regulations 2011 (SI 2011 No.1247). Regulation 12 was amended to state that ‘the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there’.
‘Joining’ the EEA National
The Tribunal held that the requirement were silent about when the ‘joining’ was to take place. They decided that ‘joining’ an EEA sponsor must be read as including both OFM’s and extended family members who arrived before and those who arrived after the EEA sponsor.
Upper Tribunal Conclusion
The Upper Tribunal found that there was an error of law in the First Tier tribunal’s decision and set aside that decision. They concluded as follows:
“1. For the purposes of establishing whether a person qualifies as an Other Family Member (OFM/extended family member under regulation 8 of the Immigration (European Economic Area) Regulations 2006, the requirement that they accompany of join the Union citizen/EEA national exercising Treaty rights must be read as encompassing both those who have arrived before and those who have arrived after the Union citizen/EEA national sponsor.
2. The 2006 Regulations do not impose a requirement that an OFM/extended family member must be present in the United Kingdom lawfully.
3. But in the context of the exercise of regulation 17(4) discretion as to whether to issue a residence card, matters relating to how and when an OFM/extended family member arrives in a host Member State are not irrelevant.”
The Tribunal allowed the appeals in so far as the applications remain outstanding for the respondent to make a decision on them in light of regulation 17 (4). This allows the SSHD to issues a residence card to extended family members where the EEA sponsor is qualified or has a permanent right to reside and where “in all the circumstances it appears to the Secretary of State appropriate to use the residence card”.
It is therefore up to the SSHD to decide whether to exercise this discretion in the appellants’ favour.
7th July 2011
Revocation of EEA residence card
HS (EEA: revocation and retained rights) Syria [2011] UKUT 165 (IAC) (13 April 2011)
This Upper Tribunal case was heard on 25th February 2011 at Field House. The case dealt with the issue of retention of rights under the Immigration (European Economic Area) Regulations 2006 (herein after referred to as the EEA regulations).
It was held that, where the Secretary of State for the Home Department (herein after referred to as the SSHD) revokes a residence card before its expiry, she must justify the revocation. Further, Regulation 10 of the EEA regulations requires the applicant to demonstrate that a genuine marriage lasted three years and that one year of that marriage was spent in the UK where the EEA national spouse was exercising Treaty Rights in the UK at the time the supplicant ceased to be a family member.
Facts of the case
The First Tier Tribunal dismissed the appellant’s appeal against the SSHD for revoking his residence card. The appellant is a Syrian national and married a Spanish national in September 2001 in the UK. The appellant subsequently applied for a residence card to remain in the UK with his spouse who was exercising her Treaty Rights here. His application was granted and a residence card was issued and valid for five years until 5th December 2007. In February 2007, the appellant made an application for a residence card. He was going through marital problems at the time and a decree nisi of divorce had been issued in October 2006. A decree absolute was made on 19th March 2007. In November 2007, a further residence card was issued with a validity of a further five years. By this time the appellant was divorced.
The appellant argued that he was entitled to permanent residence which was communicated to the SSHD who consequently, invited him to re apply for this. The appellant re applied in January 2009 enclosing his decree absolute. The SSHD requested further information including evidence that the appellant and his ex partner had co habited in the UK for one year during their marriage and that his ex partner was exercising her Treaty Rights up until the date of their divorce and that the appellant was exercising his rights. The appellant provided evidence which was deemed insufficient as a result of which, the SSHD revoked his existing residence card. The reason provided was that the appellant has ceased to be a family member and no longer qualified for residence in the UK.
At the First Tier Tribunal, the Immigration Judge noted that the burden of proof was on the appellant. The Judge has some concerns regarding the reliability of some of the documents adduced to demonstrate the appellant’s employment since the divorce. The appeal was dismissed and the appellant appealed against the decision. Permission to appeal was subsequently granted.
Revocation of residence card
The Tribunal considered Regulation 20 of the EEA regulations which provides that:
“(1) The Secretary of State may refuse to issue, revoke or refuse to renew a registration certificate, a residence card, a document certifying permanent residence or a permanent residence card if the refusal or revocation is justified on grounds of public policy, public security or public health’
Sub paragraph 3 deal with permanent residence and provides that;
‘(3) The Secretary of State may revoke a document certifying permanent residence or a permanent residence card if the holder of the certificate or card has ceased to have a right of permanent residence under these Regulations’
The Tribunal determined that residence documentation could not be arbitrarily cancelled or revoked. Article 11 of the Citizens Directive contemplates a residence card to be valid for five years. Article 14 (2) states that Union Citizens and their family members shall have the right of residence as long as they meet the requirements set out in Articles 7, 12 and 13. The Tribunal stated that the burden lies on the SSHD to establish on the civil standards the facts justifying revocation. The Tribunal agreed that a residence card can be revoked or cancelled where the card is obtained by fraud or misrepresentation (but not where a card is issued in error where it should not be revoked even if the person did not qualify for it).
In this case, the appellant had two options available to him following his divorce
1. Retained right of residence
2. Permanent right of residence
Retained right of residence
The appellant was required to show that the EEA national was exercising treaty rights at the time that the right of residence is claimed to accrue i.e. the time of divorce. The Tribunal considered the information requested from the appellant when he made his application for permanent residence.
First issue
The request for evidence of one year’s matrimonial cohabitation was deemed to be an error as this is not a requirement for retained rights of residence under Article 13 of the Directive or Regulation 10. It is sufficient to show that both spouses were residing in the UK rather than living together in the same household.
Second issue
The SSHD sought evidence that the EEA national worked from 2004 until 2007. The Tribunal held that Regulation 10 (5) required evidence of the EEA national exercising rights at the time of the divorce (termination of the marriage) and not continuously throughout the three years preceding the divorce.
Third issue
The SSHD sought evidence of the appellant’s exercising Treaty rights from the date of his divorce until the date of his application. The Tribunal stated that this was not in accordance with EU law stating that “If the appellant obtained a retained right of residence on divorce because of the duration of his marriage and his wife’s status as a worker he did not lose it subsequently because he ceased to be employed or self employed’.
The Tribunal held that the SSHD were asking for documents which were not necessary to produce for the purposes of retained rights of residence. The Tribunal held that the appellant was required to satisfy the requirements of regulation 10 which he had done.
In respect of permanent residence, reference was made to Article 16(2) which affords rights to non EEA family members who have legally resided in the host State for a continuous period of 5 years. The Tribunal confirmed that proof of cohabitation was not strictly necessary (although it may be necessary to refute any allegations of a marriage of convenience). The Tribunal confirmed that as long as both parties remained in the UK, and remained married, and the EEA National spouse continued to exercise Treaty Rights in the UK then the non EEA national obtains a right of residence. In this case, the appellant and his ex partner were married from February 2001 until they divorced. The residence cards issued to the appellant in the interim was evidence that the SSHD was satisfied as to the economic activity of the EEA national. It appeared that the appellant had acquired a right of permanent residence. Alternatively, the appellant appeared to have a retained right of residence on divorce and nothing had happened to deprive him of this right.
The Tribunal held that the First Tier Tribunal had erred and therefore the decision was set aside and a new decision was made. The Tribunal concluded that the appellant’s ex wife had been working at the time of their divorce and that the appellant was residing in the UK in accordance with the Regulations. The marriage had lasted three years prior to the initiation of divorce and they had resided in the UK for at least one year. Accordingly, the residence card should not have been revoked.
The appeal was allowed against the revocation of the appellant’s residence card. The SSHD was directed to reconsider the appellant’s application for permanent residence in accordance with the judgement.
May 2011
Right to permanent residence under EU law
Okafor & Ors v Secretary of State for the Home Department [2011] EWCA Civ 499 (20 April 2011)
This Court of Appeal case was heard on 20th April 2011 on appeal from the Upper tribunal. The case concerned the issue of permanent residence of the family members of an EU national, where the EU national died before acquiring permanent residence.
Background to the case
The appellants are Nigerian national. The main appellant is the spouse of a citizen from the Netherlands (the EEA national). The other two appellants are their children, both born in Germany and citizens of the European Union. The family arrived in the UK in 2001 however; they were granted permission to reside under the terms of Directive 2004/38/EC (referred to as the Citizenship Directive) which was given effect in the UK through the Immigration (European Economic Area) Regulations 2006. The Regulations are to be construed so as to be compatible with the Directive.
The EEA national was granted the right of residence under Article 7 (1) which provides that all Union citizens have the right of residence in another Member State for longer than three months provided they are
· Workers or self employed persons or
· They are self sufficient (will not become a burden on the State and holds comprehensive health insurance) or
· They are enrolled as a student 9and have comprehensive health insurance) or
· They are the family members accompanying or joining a Union citizen who belongs to one of the above categories
The main appellant and the two children were granted a right of residence by virtue of article 7(2).
Under Article 10 of the Directive, the family members can be issued with a document called ‘Residence Card for Family Member of the Union Citizen” which serves as evidence of their right to remain in the host Country. Article 11 states that the Residence card must be valid for 5 years from the date that it is issued. In the UK, the right of residence is endorsed in the applicant’s passport.
The EEA national passed away in 2007. When the appellant came to apply for permanent residence under retention of rights, it was held that, whilst the EEA national was employed in 2003, she was not a qualified EEA national within the meaning of Regulation 6.
After the EEA national’s death, the father and children remained in the UK for the duration of their residence permit which expired in June 2008. Article 12 sets out provisions in the instance of death or departure of the EEA national. It provides that the applicant must meet the conditions laid down in Article 7(1).
The main appellant was required to show that, in order to acquire a right of residence, he was living in the UK with the EEA national for at least one year before she passed away. Further, he was required to show that the EEA national was exercising her Treaty rights in the UK (I.e. that she was a worker, self employed person, self sufficient person).
Article 12 (3) makes provisions which enable the children and parent who has custody of the children to reside in the Member state if the children are at school. In this case, there was evidence that both children were at school and that, the appellant, as the person with their custody after the death of their mother, was entitled to retain the right of residence until the completion of their studies. The appellant’s representatives argued that the right went further by providing for the right of permanent residence (in some circumstances).
In January 2009, the appellant applied for permanent residence on that basis that he was the family member of an EEA national who had died and on the basis that he had resided in the UK for a continuous period of five years. The children applied on similar grounds.
The UK border agency refused the application on the basis that the appellants had not satisfied the requirements under Regulation 15(1)(a) or (b) or (e) of the Regulations. The appellants appealed and their initial appeal was dismissed in November 2009 on the basis that, the EEA national, at the time of her death, did not satisfy the conditions for permanent residence. The appellants appealed against this decision. Their appeal was again dismissed by Senior Immigration Judge Freeman in February 2010 on similar reasons. Permission to appeal was granted on the question whether the issue of the residence card created a right to permanent residence under Article 16 of the Directive (equivalent to article 17 of the Regulations) or whether it merely recognised that that right existed.
In respect of the children, it was clear that they could not meet the conditions for permanent residence and this was not contested. As for the main appellant, his representative argued that although he could not show that he was a worker or self employed person; there had been no findings to show that he would be an unreasonable burden on the State. However, the court held that the burden was on the appellant to demonstrate this and therefore, this argument could not be accepted.
The Court held that Article 12(3) did not, on its own, confer any right of permanent residence. It refers only to a right of residence. The Court went on to consider whether a right could be obtained under Article 16. This Article provides that non nationals who have been residing with the Union citizen for a continuous period of five years in the host State shall have the right of permanent residence.
Conclusions under EU law
The Court held that neither Article 12 nor Article 16 conferred a right of permanent residence. The appellant’s arguments were rejected. The rights of permanent residence were conferred through Chapter 3. The Directive provides that the rights to acquire permanent residence for persons such as the appellants are governed by Article 12. Article 12 has certain requirements that need to be fulfilled in order to acquire permanent residence. The Commission’s Explanatory Memorandum on the proposal for the Directive also made this clear where it states that permanent residence ‘is subject to their being engaged in gainful activity or having resources or being a member of a family, already constituted in the host Member State’ and that ‘the persons concerned will have to prove they satisfy the conditions’.
The Court concluded therefore, that the appellants did not acquire permanent residence under EU law. The appeal was subsequently dismissed.