KG (Sri Lanka) v Secretary of State for the Home Department; AK (Sri Lanka) v Same

JurisdictionEngland & Wales
JudgeLord Justice Buxton,Lord Justice Sedley,Lord Justice Hooper,Lord Justice Richards,Lord Justice Lawrence Collins,Lord Justice Stanley Burnton
Judgment Date21 May 2008
Neutral Citation[2008] EWCA Civ 664,[2008] EWCA Civ 13
Docket NumberCase No: C5/2007/1368,Case No: C5/2007/1440/2210
CourtCourt of Appeal (Civil Division)
Date21 May 2008

[2008] EWCA Civ 13




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Buxton

Lord Justice Sedley and

Lord Justice Hooper

Case No: C5/2007/1440/2210

IA/O9078/2006; IA/07178/2006

Kg(sri Lanka) And Ak(sri Lanka)
The Secretary Of State For The Home Department

Mr Manjit Gill QC and Mr Zainul Jafferji (instructed by The Solicitor to the Tamil Welfare Association) for KG

Miss Nicola Rogers (instructed by The Merton Law Centre) for AK

Mr Robert Palmer (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent

Hearing dates: 20 December 2007

Lord Justice Buxton

At the sitting of the court Mr Gill QC, for KG, requested that anonymity be maintained in the case of his client, because of his fears as to the current situation in Sri Lanka. Whilst noting that it was now seven years since KG left that country, and five years since his claim for asylum was refused, we concluded that it would be an inappropriate use of the court's time to investigate the issue in any detail: particularly when assured by counsel of Mr Gill's standing that the issue was a serious one. AK did not seek to maintain anonymity, but we thought that the easiest course was to continue, at least to the delivery of judgment, with the titles of both cases so far adopted.

Background and outline facts


These two appeals from determinations of the Asylum and Immigration Tribunal were listed and heard together, because they were thought to raise the same question as to the correct transposition into English domestic law of certain provisions of the “ Citizens' Directive”, Directive 2004/38/EC. In the event, the wider issues as to the present state of English law proved not to be conclusive, since each of the appellants fails on the facts of his particular case. Nonetheless, it is appropriate, both as the context of those decisions and because of the general importance of the subject, to address the issues of transposition: issues on which we received detailed and valuable submissions from all counsel instructed in the appeals.


Both of the appellants entered the United Kingdom as in the event unsuccessful asylum seekers, and now seek to remain here, when otherwise they would have no right to do so, as a family relation of EU citizens who have themselves subsequently come to this country. Union citizens are all nationals of another member state, and as such have certain rights both to enter and to remain in the United Kingdom and to bring with them certain of their relations. I first set out in outline the facts of the two individual cases. Some of the facts, in particular in relation to the social relationship of the appellants with their respective Union citizen relative, will have to be further analysed in relation to particular issues addressed later in this judgment.


KG is a national of Sri Lanka born on 6 March 1968. He lived with his parents in that country until October 2000. In November 2000 he arrived clandestinely in the United Kingdom and claimed asylum shortly thereafter. That claim was refused. KG's appeal was unsuccessful, but he remained in the United Kingdom without leave to remain, living with his elder sister and her husband. The Union citizen relative on whose status he relies is his brother, who had left Sri Lanka in 1992, eight years before KG, and was granted refugee status in Germany. He became an Union citizen when he acquired citizenship of the Federal Republic of Germany in 2001. In January 2006 the Union citizen relative entered the United Kingdom, and applied for a residence permit under his rights of entry as such Union citizen. On the following day KG applied for residence, as a family member of the Union citizen.


AK is a national of Sri Lanka, born on 10 December 1981. Until 1991 he lived in the family home in Sri Lanka with his parents, a brother, three sisters, his mother's sister, the latter's husband and their four daughters and two sons. In 1991 the family was dispersed by internal disruption endemic in Sri Lanka. AK arrived in the United Kingdom in November 2000, unsuccessfully claimed asylum and in 2001 failed in an appeal against that decision. He nonetheless remained unlawfully in this country. The Union citizen on whose status he relies is one of the daughters of his mother's sister, thus his cousin, who left Sri Lanka in 1992 (AK then being eleven years old and the cousin seventeen years old) and claimed asylum in France. She became a citizen of the French republic, thus an Union citizen, in 2000. In 2005 she moved to the United Kingdom, exercising her rights as an Union citizen. AK thereupon applied for residence as a relative of the Union citizen.

Free movement of Union citizens

The basic law


An important principle of Community law is the removal of barriers to movement between member states. Originally, that was seen as a means of promoting one of the foundations of the Community as an economic union, as envisaged in articles 48 and 49 of the Treaty of Rome, and the first piece of detailed Community legislation to that end, Council Regulation 1612/68, was limited to the rights of workers. That approach was significantly added to by the creation of citizenship of the Union by Part Two of the Consolidated Treaty. That Part provides by article 18 that

Every citizen of the Union shall have the 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 by the measures adopted to give it effect.


The principal such measure, with which we are directly concerned in this case, is Directive 2004/38. Articles 5 and 6 of Directive 2004/38 give Union citizens a right of entry into another member state, and a right to reside there for a period of up to three months. A right of residence for more than three months is granted by article 7 to Union citizens who are either workers or self-employed persons in the host state; or have sufficient resources for themselves and their family members not to be a burden on the resources of the host state and have comprehensive sickness cover; or are in the host state for educational purposes, again with provisions as to sufficient resources and sickness cover.

Family members


Both Directive 2004/38 and earlier legislation make provision about the presence and residence in the host state of family members of the Union citizen, according to the category of relation into which those members fall. Directive 2004/38 identifies two such categories. By article 2(2) “family members” of the Union citizen are

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 and in accordance with the conditions laid down in the relevant legislation of the host Member State;

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 dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

I will call these persons article 2 family members. It will be noted that such family members fall into two classes: A. Those whose rights are based simply on their relationship with the Union citizen, i.e. spouses, registered partners and children under 21. B. Those who in addition to their relationship with the Union citizen have to prove their dependence on him or his spouse or partner, i.e. children over 21 and direct relatives in the ascending line.


Article 3 of Directive 2004/38 then says that the beneficiaries of its provisions are, first, all Union citizens and their article 2 family members “who accompany or join them”. It then by article 3(2) makes further provision, which is of central importance in these appeals:

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 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.

I will refer to the persons addressed in article 3(2)(a) as other family members [OFM].


Directive 2004/38, including the foregoing provisions, has purportedly been transposed into domestic law by the Immigration (European Economic Area) Regulations 2006. We may note that the legislation is expressed in terms of EEA nationals and not just of Union citizens, but it will be convenient to continue to discuss the Community jurisprudence using the latter expression. Regulations 8 and 17 address the position of OFM (called in the Regulations extended family members). Regulation 8 defines and limits the persons who in relation to entry into the United Kingdom count as OFM. It reads as follows:


(1) In these Regulations “extended...

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