AA (Algeria) v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Sullivan,Lord Justice Davis,Lady Justice King
Judgment Date16 December 2014
Neutral Citation[2014] EWCA Civ 1741
Docket NumberC5/2013/1625
CourtCourt of Appeal (Civil Division)
Date16 December 2014

[2014] EWCA Civ 1741

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

(Upper Tribunal Judge Allen)

Royal Courts of Justice

Strand

London, WC2A 2LL

Before:

Lord Justice Sullivan

Lord Justice Davis

Lady Justice King DBE

C5/2013/1625

AA (Algeria)
Appellant/Appellant
and
The Secretary of State for the Home Department
Respondent/Respondent

Miss Kofoworola Anifowoshe (instructed by Staines & Campbell Solicitors, London W5 2PJ) appeared on behalf of the Appellant

Mr Sarabjit Singh (instructed by Treasury Solicitor, London WC2B 4TS) appeared on behalf of the Respondent

Lord Justice Sullivan

Introduction

1

This is an appeal against the determination promulgated on 8 May 2013 of the Upper Tribunal (Immigration and Asylum Chamber) dismissing the appellant's appeal against the determination dated 8 January 2013 of the First-Tier Tribunal (Judge Harris) dismissing the appellant's appeal against the Secretary of State's decision dated 8 October 2012 to refuse to issue him with a residence card under the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"). In its determination the Upper Tribunal effectively endorsed the reasoning of the First-Tier Tribunal, so the focus of this appeal is upon the correctness or otherwise of the First-Tier Tribunal's determination.

Facts

2

The appellant was born on 8 July 1991 and is an Algerian citizen. He has a brother, Mr Faouzi Alem, referred to as Mr F Alem in the First-Tier Tribunal's determination. Mr F Alem was born in 1983 and is now 31 years old. Mr F Alem is married to Ms Karima Cherid, an Italian citizen, who is exercising Treaty rights in the United Kingdom.

3

Before the First-Tier Tribunal, the appellant claimed that, for the purposes of the 2006 Regulations, he was an "extended family member" of Ms Cherid.

4

The First-Tier Tribunal concluded that in the United Kingdom the appellant was dependent on and a member of the same household as Ms Cherid, so the issue was whether there was dependence on, or membership of the same household as Ms Cherid before the appellant came to the United Kingdom. There was no suggestion that the appellant had ever been a member of Ms Cherid's household prior to his coming to the United Kingdom with his parents in March 2008, so the only remaining question before the First-Tier Tribunal was whether the appellant was dependent on Ms Cherid before he came to the United Kingdom.

5

The basis of the appellant's claim in that respect was recorded in paragraph 47 of the First-Tier Tribunal's determination:

"The appellant's claim is that shortly after the relationship between his brother and Ms Cherid commenced in the summer of 2007, the appellant became dependent upon Ms Cherid. This was through the transfer of funds to him arranged by his brother. As the appellant only came to the UK in March 2008, this demonstrates the required condition of dependence in a country outside of the UK before arrival here."

6

The First-Tier Tribunal summarised its response to that claim in paragraphs 48 to 50 of the determination:

"48. In the appeal before me the appellant relies on the oral evidence of himself, his brother and Ms Cherid in respect of this claimed dependency in Algeria. The appellant has not produced any documentary evidence to help support his case.

49. Am I able to rely simply on the word of the appellant and his witnesses to demonstrate the claimed dependency?

50. I am not satisfied that I can."

7

In paragraphs 51 to 63 Judge Harris explained why he was not satisfied that he was able to rely on the word of the appellant and his witnesses.

8

First, there were discrepancies in the appellant's account of how he had come to be living with his brother and his brother's wife in a house belonging to a Mr Harabatte. Was it a planned meeting with them at Mr Harabatte's house, as alleged by the appellant to Judge Harris, or as a result of a chance meeting with Mr Harabatte as the appellant had alleged in an earlier hearing before Immigration Judge Warner in the First-Tier Tribunal?

9

Judge Harris said in paragraphs 57 to 61:

"57. I find that these discrepancies in evidence are of such significance as to weigh against treating the appellant, Mr F Alem and Ms Cherid as reliable witnesses on their word alone about the claimed dependence said to have been established before the appellant moved in July 2009 into the home of his brother and sister-in-law.

58. I further note that the claim of there being any dependence prior to 2009 does not appear to have been made before [Immigration Judge] Warner in the 2011 appeal. The evidence as put to [Immigration Judge] Warner mentions only that the appellant had been living with his brother and Ms Cherid since their Islamic marriage in July 2009.

59. I find that I cannot ignore this failure to mention the dependence being established prior to the appellant coming to the UK. This was despite the main obstacle to success in the appeal being clearly identified at the hearing as being the lack of evidence of financial dependency prior to the appellant coming to the UK.

60. The appellant and his witnesses told me that they had not mentioned it because they had not been asked about it. I am not satisfied that this is a plausible explanation. For the 2011 appeal the appellant had legal representation and the determination indicates that all three gave full evidence.

61. In the circumstances, if the dependence prior to arrival had existed in 2007, I would have expected the appellant or his legal representatives to have raised the matter before [Immigration Judge] Warner when the clear opportunity presented in 2011."

10

Having referred to Devaseelan, Judge Harris said in paragraphs 63 and 64:

"63. I am not satisfied that I can treat the appellant, Mr F Alem and Ms Cherid as giving reliable evidence about the claimed dependence of the appellant on Ms Cherid starting before his arrival in this country.

64. On the oral and documentary evidence before me I am not satisfied that the appellant has demonstrated on the balance of probabilities the claimed dependence prior to arrival in this country."

The issue

11

On the face of the appellant's skeleton argument, it appeared that there was only one issue in this appeal. Could the appellant have qualified as an extended family member under the 2006 Regulations upon the basis that he was a dependant or a member of the household of the spouse of an EEA national, namely his older brother, Mr F Alem, before he (the appellant) came to the United Kingdom in March 2008?

12

I will deal with the second issue which only arose during the course of Miss Anifowoshe's submissions on behalf of the appellant in due course.

The Citizens' Directive

13

The 2006 Regulations give effect to Directive 2004/38/EC ("the Citizens' Directive"). Article 3 of the Citizens' Directive provides as follows:

"1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

2. Without prejudice to any right of free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;

(b) the partner with whom the Union citizen has a durable relationship, duly attested.

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people."

The 2006 Regulations

14

Regulation 8 of the 2006 regulations deals with "extended family member" as follows:

"8. (1) In these Regulations 'extended family member' means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfy the conditions in paragraph (2), (3), ( 4) or (5).

(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and —

(a) the person is residing in-country other than the United Kingdom and is dependent upon the EEA national or is a member of his household;

(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or

(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.

(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national, his spouse or his civil partner.

(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom.

(5) A person satisfies the...

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7 cases
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    • United Kingdom
    • Court of Appeal (Civil Division)
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  • Upper Tribunal (Immigration and asylum chamber), 2022-11-27, IA/00655/2021
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