AP and FP (Citizens Directive Article 3(2))
| Jurisdiction | England & Wales |
| Judge | C M G OCKELTON,DEPUTY PRESIDENT |
| Judgment Date | 24 April 2007 |
| Neutral Citation | [2007] UKAIT 48 |
| Court | Asylum and Immigration Tribunal |
| Date | 24 April 2007 |
[2007] UKAIT 48
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Martin
Immigration Judge Peart
For the Appellant: Mr Jafferji, instructed by Jasvir Jutla & Co.
For the Respondent: Miss O'Connor, Home Office Presenting Officer
AP and FP (Citizens Directive Article 3(2); discretion; dependence) India
1. Article 3(2) of Directive 2004/38/EC gives no substantive rights of entry or residence. Such rights are a matter for national legislation only. 2. The procedural rights given in Article 3(2) add little or nothing to the process already applicable in the UK. 3. References to dependence in Directive 2004/38/EC are references to dependence arising from need.
The appellants are citizens of India and are sisters. They are married to brothers, who are also citizens of India, but who live with their father in the United Kingdom. The father, whom we shall call “the sponsor”, was born in Goa, exercised his right to acquire Portuguese nationality, and further exercised his right of free movement within the European Union to come to the United Kingdom and work here. His sons, the appellants' husbands, joined him in the United Kingdom, apparently in 2002. They have lived here with him ever since. In March 2005 there was a family visit to India, during which each of the appellants married one of the sponsor's sons. On 8 November 2005 the appellants applied for entry clearance as family members of an EEA national. They were interviewed on 8 December 2005 and subsequently refused. They appealed to the Tribunal against the refusals.
Put shortly, the appellants' claim is that they are entitled to entry to the United Kingdom as family members of the sponsor, their father-in-law, on whom it is claimed they are dependent. They claim that at the date of the decisions against which they appeal they were entitled to permission under Article 10 of Regulation (EEC) No. 1612/68, and that, although that Article has since been repealed, they are entitled to succeed in this appeal on the basis of it. Alternatively, they claim that they are entitled to admission under Directive 2004/38/EC of the European Parliament and the Council, which replaced the previous legislation, including Article 10 of Regulation (EEC) 1612/68, and came into effect on 30 April 2006. In connection with that part of their argument, they claim that the Immigration (European Economic Area) Regulations 2006 (SI 1003/2006) (the EEA Regulations) fail properly to implement the 2004 Directive so as to give effect to their rights. Alternatively, they claim that the decisions against which they appeal breach their Convention rights. The respondent relies on the 2006 Regulations and, in particular, contests the claim that the appellants are dependent on the sponsor. These and similar issues are raised in a considerable number of appeals presently before the Tribunal. For this reason the hearing of this appeal took place before a panel consisting of three legally-qualified members with a view to giving guidance on issues including the interpretation of Article 3(2) of the 2004 Directive; the claim that the EEA Regulations do not correctly implement it, and the meaning of dependence for the purposes of both the Directive and the Regulations.
We heard submissions from Mr Jafferji and Miss O'Connor on 1 September 2006. We adjourned the appeal part-heard, for two reasons. One was that it was unclear whether we would need to hear evidence. The other was that the decision of the European Court of Justice in Jia v Migrationsverket, Case C-1/05, to the opinion of the Advocate-General in which we had been referred, was thought to be both imminent and relevant. In the result, the Court's judgment was given on 9 January 2007. There was some difficulty in arranging for the resumed hearing, but this eventually took place on 24 April 2007. It was not possible at the resumed hearing to replicate exactly the panel which sat on 1 September 2006. Both parties nevertheless indicated that they were content to treat the submissions made in writing and orally on 1 September 2006 as having been made to us (as in fact they had been made to two of us); and we make our determination on the basis of those submissions and the further submissions made and evidence heard on 24 April 2007.
We must begin by setting out the relevant legislation. The EEA Regulations are applied by paragraph 5 of Schedule 4 to appeals pending on 30 April 2006, the date those Regulations came into effect. In reg 6, there is a definition of “qualified person”. We do not need to set it out. In this appeal there is no doubt that the sponsor is a qualified person and that his sons (the appellants' husbands) are not qualified persons. We need to set out parts of regs 7, 8, 11 and 12.
“ Family member
7. — (1) Subject to paragraph (2) [which is not material for the purposes of this appeal], for the purposes of these Regulations the following persons shall be treated as the family members of another person—
(a) his spouse or his civil partner;
(b) direct descendants of his, his spouse or his civil partner who are –
(i) under 21; or
(ii) dependants of his, his spouse or his civil partner;
(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;
(d) a person who is to be treated as a family member of that other person under paragraph (3)
. …
‘Extended family member’
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 satisfies 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 an EEA State in which the EEA national also resides 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 condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
(6) In these Regulations ‘relevant EEA national’ means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), ( 3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).
. …
Right of admission to the United Kingdom
11. – (1) An EEA national must be admitted to the United Kingdom if he produces on arrival a valid national identity card or passport issued by an EEA State.
(2) A person who is not an EEA national must be admitted to the United Kingdom if he is a family member of an EEA national … and produces on arrival –
(a) a valid passport; and
(b) an EEA family permit, a residence card or a permanent residence card.
. …
Issue of EEA family permit
12. – (1) An entry clearance office must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and –
(a) the EEA national is –
(i) is residing in the UK in accordance with these Regulations; or
(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and
(b) the family member will be accompanying the EEA national to the United Kingdom or joining him there and –
(i) is lawfully resident in an EEA State; or
(ii) would meet the requirements in the Immigration Rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom.
(2) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if –
(a) the relevant EEA national satisfies the condition in paragraph (1)(a);
(b) the extended family member wishes to accompany the relevant EEA national to the United Kingdom or to join him there; and
(c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit.
(3) Where an entry clearance officer receives an application under paragraph (2)...
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