Bigia v Entry Clearance Officer

JurisdictionEngland & Wales
JudgeLord Justice Maurice Kay,Lord Justice Tuckey,The Master of the Rolls
Judgment Date19 February 2009
Neutral Citation[2009] EWCA Civ 79
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C5/2007/2482; 2008/0767; 2008/1853; 2008/2354
Date19 February 2009

[2009] EWCA Civ 79

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE ASYLUM AND IMMIGRATION

TRIBUNAL

Ref No: 0A304052005

Before:

The Master of the Rolls

Lord Justice Tuckey and

Lord Justice Maurice Kay

Case No: C5/2007/2482; 2008/0767; 2008/1853; 2008/2354

Between:
Bigia & Ors
Appellants
and
Entry Clearance Officer
Respondent

Mr Ramby de Mello and Mr Nazir Ahmed (instructed by Messrs Sultan Lloyd) for the appellants UB and a minor and PP and others

Mr Manjit Gill QC and Mr Zainul Jafferji ( instructed by Messrs Lawrence Lupin &Co) for the appellant TS

Mr Manjit Gill QC and Mr Zainul Jafferji ( instructed by Messrs Idris.& Co) for the appellants GT and others

Mr Robert Palmer (instructed by Treasury Solicitor) for the Respondent in each appeal

Hearing dates : 15, 16 December 2008

Lord Justice Maurice Kay

Lord Justice Maurice Kay:

Directive 2004/38/EC , commonly known as “the Citizens' Directive”, is concerned with “the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States”. Those words came from its descriptive title. In the Preamble, Recital (1) states:

“Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect.”

1

Recital (3) states that it is necessary to codify and review the existing Community instruments “in order to simplify and strengthen the right of free movement and residence of all Union citizens”. A “Union citizen” is “any person having the nationality of a Member State” (Article 2.1). The position of such a person, as regards his rights of free movement and residence, is relatively straightforward and is founded on Article 18 of the Treaty. But what of his “family members” and, in particular, those who are not themselves Union citizens? The Directive distinguishes between “family members” as defined in Article 2.2 and “other family members” who are dealt with in Article 3.2(a). I shall refer to the latter, without disrespect, as “OFMs”.

2

The relevant provisions state:

Article 2.2: “ 'Family member' means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage … ;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependant direct relatives in the ascending line and those of the spouse or partner as defined in point (b).”

Article 3: “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 to 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 members 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.”

3

Thus, any dependant parent or grandparent of a Union citizen is a family member, as is a child or grandchild who is under 21 or a dependant of the Union citizen. They benefit from Article 3.1. On the other hand, an adult and non-dependant child is an OFM, as are less direct relatives. They enjoy the lower protection of Article 3.2(a).

4

Implementation of the Directive in this country was sought to be achieved by the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). “Family members” are defined in Regulation 7 in terms consistent with Article 2.2 of the Directive. Regulation 12 then provides:

“(1) An entry clearance officer 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 –

(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 …”

5

OFMs are dealt with initially in Regulation 8, which is headed “Extended family members”. Regulation 8(2) provides:

“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 in 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.”

6

Regulation 17(4) then provides:

“The Secretary of State may issue a residence card to an extended family member … who is not an EEA national on application if –

(a) the relevant EEA national in relation to the extended family member is a qualified person … ; and

(b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.”

It is clear that, as an exercise in transposition, those Regulations did not slavishly follow the language of Articles 2.2 and 3.2.

The relationships underlying these appeals

7

The relationships in the present appeals are complex and not dissimilar from those in other cases which have given rise to difficulties.

(1) UB(India)and a minor

UB is an Indian national. She has a daughter, who was born on 11 December 1997. Their entitlements, if any, derive from their relationship with Lala Bigia. He is UB's father. He was originally resident in India but he also has Portugese nationality and he relied on that when he entered the United Kingdom in 1995. On 16 May 2005, UB and her daughter applied for an EEA family permit in order to join Mr Bigia.

(2) PP(India)and others

These three appellants are Indian nationals. PP is the daughter, AI is the son-in-law and NA is the minor grandson of Pema Bula, who originates from Goa and has Portugese nationality. Mr Bula travelled to Portugal in January 2002 and exercised his right to move to the United Kingdom later that month. On 8 December 2005, the appellants applied for an EEA family permit by reference to Mr Bula.

(3) TS(Sri Lanka)

TS is a citizen of Sri Lanka. He seeks to rely on his relationship with his uncle. TS has been in this country since 2002. His uncle did not arrive here until March 2006, having come from Germany. The uncle, originally a Sri Lankan citizen, had left Sri Lanka for Germany in 1984 (when TS was about 3 years old) and had later acquired German citizenship.

(4) GT(India)and others

These six appellants are siblings and citizens of India. They applied for EEA family permits in August 2004 but were refused. They seek to rely on their relationship with their uncle. He left India and arrived in this country in 2002. He has Portugese citizenship.

8

It is apparent, therefore that two of the appellants – the minor grandchildren in UB(India) and PP(India)– are “direct descendants who are under the age of 21” within the meaning of Article 2.2(b) of the Directive. Others – the adult daughters in UB(India) and PP(India)– are direct descendants in respect of whom the issue of dependancy arises in relation to Article 2.2(b). Failing that, they claim to be OFMs. The third category – the son-in-law in PP(India) and the nephews and nieces in TS(Sri Lanka) and GT(India) and others– are not “family members” within the meaning of Article 2.2 but fall to be considered as OFMs pursuant to Article 3.2.

KG(Sri Lanka) and AK(Sri Lanka) v SSHD [2008] EWCA Civ 13

9

Some of the issues that arise in the present appeals also arose or were considered in KG and AK(Sri Lanka), in which judgment was handed down on 25 January 2008. Giving the lead judgment, Buxton LJ traced the history of the Citizens' Directive back to Regulation (EEC) 1612/68, by which, forty years earlier, the Council had legislated in respect of the movement of migrant workers within the Community. He also considered the jurisprudence of the European Court of Justice, including MRAX [2002] ECR I–6591, Akrich v SSHD [2003] ECR I–9607 and Yungying Jia v Migrationsverket [2007] ECR I-0001...

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