Extended family members of EEA nationals
MR and ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC)
This case concerned the extended family members of the non EEA national spouse namely, the brother, half-brother and nephew.
The non EEA national’s mother, Mrs. Begum, a Bangladeshi national and widow, was granted leave to enter the UK. The EEA national is Irish and was working in Northern Ireland. They applied for residence permits to enter the UK and whilst they were initially refused, they won on appeal and Mrs. Begum was admitted to the UK as an elderly dependant. She was a dependant family member in ascending line.
The other applicants (brother, half brother and nephew) do not fall within the definition of Regulation 7 under the Immigration (European Economic Area) regulations 2006 but fall to be treated under reg 8 as extended family members. They argued a discretionary consideration by the Secretary of State for the Home Department (herein after referred to as the SSHD) where deemed appropriate. They were granted entry clearance to join Mr Rahman (the non EEA national) and Mrs. Rahman (the EEA National). They applied for residence cards upon arrival. They were subsequently refused on the basis that they did not qualify as extended family members. Upon appeal, the immigration judge concluded that they were in fact dependants and that the issue was the consideration of the SSHD’s exercise of discretion under reg 17 (4). The SSHD sought and was granted reconsideration on the point of dependency. The case came before the Upper Tribunal.
Upon consideration of European Community Law and domestic legislation, the Tribunal concluded that it would refer questions to the European Court of Justice (ECJ) for clarification. Those questions are:
1. Does Article 3(2) of Directive 2004/38/EC require a Member State to make legislative provision to facilitate entry to and or residence in a Member State to the class of other family members who are not nationals of the European Union who can meet the requirements of Article 10(2)?
2. Can such other family member referred to in Question 1 rely on the direct applicability of Article 3(2) of Directive 2004/38/EC in the event that he cannot comply with any requirements imposed by national legislative provisions?
3. Is the class of other family members referred to in Article 3(2) and Article 10(2) of Directive 2004/38/EC limited to those who have resided in the same country as the Union national and his or her spouse, before the Union national came to the host state?
4. Must any dependency referred to in Article 3(2) of Directive 2004/38/EC on which the other family member relies to secure entry to the host state be dependency that existed shortly before the Union citizen moved to the host state?
5. Can a Member State impose particular requirements as to the nature or duration of dependency referred to in Article 3(2) of Directive 2004/38/EC by such other family member so as to prevent such dependency being contrived or unnecessary to enable a non national to be admitted to or continue to reside in its territory?
6. Must the dependency on which the other family member relies in order to be admitted to the Member State continue for a period or indefinitely in the host state for a residence card to be issued or renewed pursuant to Article 10 of Directive 2004/38/EC and if so how should such dependency be demonstrated?
The Upper Tribunal stated that a clearer understanding of Community law would be required in order to determine the appeals. Therefore, once the questions have been answered by the ECJ, a determination will be made on the case.
March 2011
JO and others (foreign marriage – recognition) Nigeria [2010] UKUT 478 (IAC) (26 January 2011):
This case involved a sponsor for residence (a father) and the appellants (his children) aged 20 and 6, and twins aged 11. The issue was whether the appellants could rely on their father’s EEA immigration status, in order to obtain UK residence cards, where that EEA immigration status might have been obtained by fraudulent means.
The father has both Nigerian and Italian citizenship. He obtained Italian citizenship by marrying an Italian in 1993. He and his wife divorced in 2001, but he retained Italian citizenship.
The Immigration Judge at first instance came to believe that the marriage was not genuine. If this was the case, the appellants’ father would, in effect, be seeking to rely on fraudulent arrangements in order to enjoy the benefits of EEA legal provisions (right of residence in another Member State).
The First Tier Tribunal further determined it could not be sure that the appellants were in fact the children of the sponsor (the Italian citizen). Requests for birth certificates had been complied with late. The DNA profiling which had been carried out was not accompanied by proof that the right people had taken the right tests.
The questions on appeal were whether the First Tier Tribunal had been entitled to enquire in to the genuineness of the marriage which gave the father Italian citizenship. On the second issue, it was necessary to determine whether the First Tier Tribunal’s conclusion about the relationship between sponsor and appellants was valid in law.
On the first question, the appeal court held that it would be inappropriate for the UK public authorities (as one Member State of the EU) to call into question a marriage treated as genuine by another Member State (in this case, Italy). It was not for the UK to investigate Italian grants of citizenship. Such issues as fraudulent marriage arrangements, as suspected by the First Tier Tribunal, would be a matter for Italy, and not the UK. Thus, on the first question, the Immigration Judge erred in law in suggesting that the sponsor was (a) not an Italian citizen and therefore (b) could not rely on such rights as EU law accords him as a citizen of another Member State.
On the second question, it was so unlikely that the sponsor has arranged for four individuals other than his children to attend DNA profiling, that this line of reasoning was dismissed. The evidence available was deemed sufficient to show that the claimed relationship between sponsor and appellants was indeed that of father and children.
The First Tier Tribunal was not entitled to make legal determinations which questioned Italian immigration status by marriage (that was a matter for the Italian authorities). The Tribunal was equally not entitled to make rulings based on any doubts about the relationship between father and children. These exercises should not have been embarked upon by the court.
For these reasons the appellants were deemed to be daughters of an EEA national exercising Treaty rights of residence (under Regulation 7(1) of the Immigration (European Economic Area) Regulations 2006. They were entitled to UK residence.
Zoë Sutherland
FMB (EEA Regulations - reg 6(2) (a) - 'temporarily unable to work') Uganda [2010] UKUT 447 (IAC) (16 November 2010)
This case concerned the Secretary of State’s appeal against the decision of the Tribunal. The claimant had applied for a permanent residence card under Reg 15(1)(b) of the Immigration (European Economic Area) Regulations 2006. This was refused by the Secretary of State in their decision dated 17th February 2010. The claimant appealed and the appeal was allowed. The Secretary of State applied for permission to appeal which was granted.
Summary of claimant’s case
The claimant is a Ugandan national and arrived in the UK as a visitor on 1st July 2004. She was subsequently granted leave to remain as the family member of an EEA national, namely her father (a Swedish national). She was refused permanent residence by the Secretary of State on the basis that her father, the EEA national, was not exercising his Treaty rights in the UK for a continuous period of five years. Therefore, he was not considered to be a qualified EEA national.
Reference was made to the relevant regulations as to the acquisition of the permanent right of residence. The Tribunal also looked at Reg 6 which deals with circumstances where persons are no longer working. Reg 6(2) provides that a person does not cease to be treated as a worker is he or she is “temporarily unable to work as a result of an illness or accident”.
In this case, the claimant’s father arrived in the UK in 2002 and worked as a teacher up until the summer of 2004 when he had to stop working due to an illness. The Tribunal held that the claimant’s father was a worker within the definition of the Regulations between 2002 and 2004. He thereafter became incapable of work. He enrolled as a student in 2008.
The immigration judge noted a distinction between a person who was unable to work temporarily because of an illness or accident; this person would not cease to be a worker and a person who ceased activity because of a permanent incapacity to work in terms of reg 5(3)(a). In this case, the immigration judge was satisfied that the claimant’s father was temporarily unable to work between 2004 and 2008 upon which he became a student.
In the Secretary of State’s grounds for permission to appeal it was argued that the claimant’s father had become an unreasonable burden on the State and that the Tribunal should have taken account of reg 13.
The Court considered that the critical issue was whether the claimant’s father remained a qualified person as a worker during the periods that he was unable to work. The claimant’s representative argued that the father’s inability to work was not permanent. It was temporary. Therefore, he remained within the definition of a worker. The respondents argued that four years incapacity to work was not temporary although they could not cite any authority as to what was.
Conclusion
The court found that the immigration judged had not made an error of law in determining that the claimant’s father condition was temporary as opposed to permanent incapacity to work. The court concluded that he was a qualified person who had acquired a right of permanent residence under reg 15(1). Therefore, the claimant was entitled to permanent residence under reg 15(1)(b). The court commented finally that the claimant’s father had relied on medical evidence to establish that he was temporarily unable to work. The court stated “A finding of temporary inability to work for an extended period would not be sustainable if a person having given up work owing to an illness then abstained from working voluntarily”. However in this case, there was evidence to show that the claimant’s father was unable to work until such time that development in his medication and treatment stabilized allowing him to commence his studies.
Accordingly the previous decision allowing the appeal was upheld.
January 2011
Carvalho v Secretary of State for the Home Department [2010] EWCA Civ 1406 (14 December 2010)
This case concerns Regulation 15 (1) (a) of the European Economic Area Regulations 2006 (herein after referred to as the Regulations). The court considered whether time spent in prison could count towards the time required for permanent settlement. The case concerned the power to deport persons who as a result of their nationality, came within the Regulations and the Directive 2004/38/EC.
The court dealt with the relevant Regulations in turn.
Firstly Regulation 15: This provides that an EEA national may acquire permanent residence once they have accumulated 5 years residence in the United Kingdom having lived here in accordance with the Regulations. Permanent residence can then be lost of the person spends over a consecutive two years away from the UK.
Regulation 15 is subject to Regulation 19(3)(b) which provides that a person who has acquired permanent settlement can be removed from the UK on the grounds of public policy, public security or public health.
The court in turn looked at Regulation 21 which provides a framework for decisions taken on public policy, public security or public health grounds. Regulation 21(4) states that “a relevant decision may not be taken except on imperative grounds of public security in respect of an EEA national who has resided in the UK for a period of at least 10 years prior to the relevant decision” .
Decisions made on the grounds of public policy and public security must be proportional and be based exclusively on the conduct of the person. That conduct must represent a ‘genuine, present and sufficiently serious threat affecting one of the fundamental interests of society’. Previous criminal convictions are not to justify the decision and regard must be had to the person’s personal circumstances such as age, health and family.
The time spent serving a prison sentence may be counted towards the five years qualifying period. Reference was made to the Citizen’s Directive which uses the term ‘resided legally’ when calculating the time spent towards the five years whereas this is omitted from the wording for ten years residence. Thus the term ‘legally’ in this context meant the exercise of rights and freedoms as conferred by thte Treaty.
The appellant in this case was a Portuguese national who had been residing in the UK since 2002. He had been convicted of many criminal offences (non custodial sentences) until his last offence when he was convicted for 22 months imprisonment for sexual assault. He was placed on a sex offenders list for ten years. Shortly prior to the end of his prison term. The Secretary of State notified him of their intention to deport him and relied on the fact that he had not acquired permanent settlement in the UK.
The appellants appeal was dismissed and went to reconsideration where it was again unsuccessful.
It was ultimately decided that this appellant’s appeal should be dismissed. Reference was made to article 28 of the Citizen’s Directive (which deals with the calculation of the duration of residence) and the European Commission’s opinion communicated to the Parliament and Council on 2nd July 2009 stating that; time spent behind bars does not necessarily count towards the qualifying period. In this case, the appellant had not been exercising his treaty rights in the host member state and could not therefore, benefit from the enhanced protection.
December 2010
RK (OFM-membership of household - dependency) India [2010] UKUT 421 (IAC) (16 November 2010)
This case concerned the appellant RK, who in 2008, applied for an EEA family permit to join her husband in the UK. Both the appellant and her husband are Indian nationals. The appellants mother and father in law’s were EEA nationals (Portuguese) who had arrived in the UK in 2003 and were exercising their EEA treaty rights here. In 2001, the appellant’s husband (the son) joined his parents in the UK aged 21 years. He joined as a dependent family member in accordance with the definition of ‘family member’ outlined in Article 2.2 of the Citizens Directive 2004/38/EC (herein after referred to as the Directive).
The appellant and the son subsequently married in 2007 in India. At the time of the marriage the appellant’s husband was residing with his parents in their home. He could not apply for the appellant to join him in the UK as he did not have indefinite leave to remain. Therefore, he could not have sponsored the appellant under the normal Immigration Rules. The appellant thereafter made an application for an EEA family permit stating that she was dependant on her in laws and her husband and that they were supporting her financially whilst she remained in India. She resided in the EEA family’s house whilst in India.
Her entry clearance application was consequently refused by the entry clearance officer who was not satisfied that she qualified as a family member in accordance with the Immigration (European Economic Area) Regulations 2006 (herein after referred to as the Regulations).
The Upper Tribunal considered the legislation before it namely Regulation 8.2 which requires that the relative of an EEA national:
i. Is residing in an EEA state
ii. The EEA national resides in the same state
iii. Is dependent upon the EEA national
iv. Is a member of his household
The Tribunal stated clearly that, if the words of the Regulation were to be taken literally, then the appellant could clearly not benefit from the Regulation and her application would fail. However, the Tribunal went on to consider whether she was an ‘other family member’. They considered Article 3(2) which provides that member States will facilitate the entry of a person who is a dependant or member of the household of the European union citizen who has the primary right of residence. The Tribunal referred to the well known decision of SM (Metock: extended family members) Sri Lanka [2008] UKAIT 75. This case considered Article 3(2) and concluded that the specific part which states ‘country from which they had come’ meant the country in which the EEA national had been residing prior to exercising Treaty rights. Reference was made to the case of KG (Sri Lanka) and AK (Sri Lanka) 2008 which dealt with the construction of Article 3(2). The European Court of Justice also handed down its judgement in the case of Metock and other (2008).
Ultimately, the Upper Tribunal made the following decision having regard to all the relevant case law on the issue.
The Tribunal concluded that:
1) The appellant could be a dependent on her in laws and her husband
2) If the appellant’s husband were to be granted permanent settlement, the appellant could qualify under the relevant Immigration Rules
3) A person can qualify as an other family member by reason of dependency on the EEA national or non national spouse of such a person without having lived in the EEA state
4) The Tribunal raised doubts as to whether a dependant other family member needed to have lived in the same country as the Union national (but left this to be explored by the Court of Appeal)
Finally, the Tribunal suggested that the Secretary of State rather than the entry clearance officer deal with the appellant’s application and that, in light of the substantial delay, that the matter be dealt with expedition.
December 2010
OA (EEA - retained right of residence) Nigeria (Rev 1) [2010] UKAIT 00003
This case dealt with the provisions under the EEA regulations which provide for non EEA family members to retain their rights of residencein certain circumstances. Specifically, it dealt with Regulation 10 and the interpretation of ‘termination of marriage’.
The Tribunal held that Under regulation 10(5)(a) the phrase “termination of the marriage …” can only mean the lawful ending of the marriage by legal proceedings (i.e. divorce); it cannot mean “breakdown of the marriage”.
Regulation 10 provides that the marriage must have subsisted for at least three years of which at least one year was spent residing in the UK.
The case also considered Regulation 15 in assessing the qualifying residential period. In order to achieve a permanent right of residence it held that it is always necessary to show residence in the UK for a continuous period of five years. Regulation 15(1)(b) provides that a person must show that the five years in question are ones in which the said residence has been “in accordance with these Regulations”.
The Tribunal held that during the five years qualifying period, the EEA national on whom the family member relies in order to establish his or her right must have been continuously in the UK exercising Treaty rights (save for certain periods of absence specified in regulation 3)