Mosnu Ahmed Chowdhury v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Macur LJ,Sir Stephen Richards,Stuart-Smith LJ |
| Judgment Date | 09 August 2021 |
| Neutral Citation | [2021] EWCA Civ 1220 |
| Docket Number | Case No: C9/2020/1554 |
| Court | Court of Appeal (Civil Division) |
[2021] EWCA Civ 1220
Lady Justice Macur
Lord Justice Stuart-Smith
and
Sir Stephen Richards
Case No: C9/2020/1554
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Ramby De Mello and Mr Tony Muman (instructed by J H Wilson Solicitors) for the Appellant
Ms Julia Smyth (instructed by Government Legal Department for The Secretary of State
Hearing date: 20 July 2021
Approved Judgment
Introduction
This appeal challenges the decision of the Upper Tribunal (Immigration and Asylum Chamber) (‘UTIAC’) on 29 th April 2020 that the Appellant was not an extended family member as defined in regulation 8(2) of the Immigration (European Economic Area) Regulations 2006 (‘the 2006 Regulations’). The sole issue in the appeal concerns the interpretation of the words ‘and continues to be dependent upon’ in regulation 8(2)(c).
This appeal falls to be determined by reference to the statutory provisions in force on 31 December 2020. Article 10(2) of the Withdrawal Agreement signed on 19 October 2019, provides that persons falling within Article 3(2)(a) of the Directive (see below), whose residence was facilitated by the host state in accordance with its national legislation before the end of the transition period in accordance with Article 3(2), retain their right of residence in the host state, provided that they continue to reside in the host state. This also applies to those who applied before the end of the transition period, and whose residence is facilitated thereafter: (Article 10(3)).
Legislative framework
Directive 2004/38/EC of the European Parliament and of the Council (“the Directive”) was enacted with a view to remedying the piecemeal approach to the ‘primary and individual’ right of a Union citizen to move and reside freely within the territory of the Member States. Recitals 5 and 6 of the Directive are pertinent to this appeal, concerning the right of the family members, and other dependents of the Union citizen, also to exercise those rights. So far as they are relevant, they provide:
“(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, ….be also granted to their family members…
(6) In order to maintain the unity of the family in a broader sense … the situation of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.”
Article 2(2) of the Directive defines ‘direct family members’ to be: the spouse; the partner of a registered partnership according to the law of the host member State; direct descendants who are under the age of 21 or are dependants and those of the spouse or partner; and dependent direct relatives in the ascending line and those of the spouse or partner. This article is implemented by regulation 7 of the 2006 Regulations. (See below).
Article 3(2) of the Directive extends the field of ‘beneficiaries’ who may be considered eligible to exercise this right and provides, so far as relevant to this appeal, that:
“(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 …
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.”
Article 3(2) of the Directive is implemented in the United Kingdom (‘UK’) by regulation 8 of the 2006 Regulations, which defines an extended family member as:
“(1)… 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 [a 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.”
Sub-paragraphs (3), (4) and (5) to paragraph 8 are irrelevant to the appeal.
Regulation 7 defines the persons who shall be treated as family members of another person in the same terms as article 2(2) of the Directive, and in addition, save in relation to extended family members of student EEA nationals, to include:
“(3) a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), ( 4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked.”
Regulation 17(4) confers a discretion on the Secretary of State to issue a residence card to an extended family member if various further conditions are met.
Factual and procedural background
The Appellant is a national of Bangladesh who was born on 25 October 1989 and arrived in the UK on 28 th February 2011 with entry clearance as a Tier 4 (Student) Migrant. His entry clearance was cancelled when his sponsoring college withdrew their sponsorship, concerned by his inability to speak English. His appeal against this decision was dismissed by the First Tier Tribunal (‘FTT’) on 17 th April 2011 but he remained living illegally in the UK. In June 2011 he was treated by the Respondent as an absconder.
On 26 January 2016 the Appellant applied for a residence card claiming to be an extended family member of his great-uncle, an EEA national, in accordance with regulation 8(2)(a) and (c). On 2 nd August 2016 the Respondent refused his application on two grounds. Firstly, she was not satisfied that the Appellant was related to the EEA national as claimed. Secondly, she was not satisfied that he had provided sufficient evidence that he was a dependent of the EEA national, either in Bangladesh or in the UK.
The Appellant's appeal against the Respondent's decision was dismissed by the FTT on 29 th October 2018. The FTT judge was satisfied that the Appellant was part of his great-uncle's household in Bangladesh until the Appellant's departure for the UK in 2011, and that he had been dependent upon his great-uncle. However, there was no documentary evidence of any financial support from, or other dependency upon, his great uncle between 2011 and December 2014/February 2015 when the Appellant was said to have joined his great-uncle's household in the UK. The Appellant and his great-uncle were ‘[n]oticeably silent’ about where the Appellant was living during these years, and the answers given by the great uncle under cross-examination as to the support he was providing the Appellant were ‘vague and unsupported’.
Permission to appeal the FTT decision was initially refused by the UTIAC but was granted as the result of proceedings for judicial review. The UTIAC heard the substantive appeal on 16 th March 2020.
The UTIAC decision on the appeal was dated 29 th April 2020. The UTIAC determined that it was necessary to interpret the phrase “and continues to be dependent” in regulation 8(2)(c) in the context of the purpose of the Directive. The member state's obligations in respect of extended family members were clearly more restricted than in the case of family members falling within article 2 of the Directive. Member states had a wide discretion as regards the selection of factors to be taken into account and were entitled to lay down particular requirements as to the nature and duration of the dependence in order to satisfy themselves that the dependency was genuine and stable. It was clear from Rahman v Secretary of State for the Home Department [2013] QB 249 that ‘at least one facet of stable family ties, is economic dependence’. If all that was required was for an applicant to ‘establish past dependency’ to satisfy the condition in reg 8(2)(a), and present dependency or membership of the EEA national's household to satisfy reg 8(2)(c), then the 2006 Regulations ‘would have used the words ‘and is dependent…’ rather than the words' and continues to be dependent' in Regulation 8(2)(c)’. In other words, the Appellant's construction rendered the words ‘and continues to be’ superfluous. The language used in regulation 8(2)(c) did not admit the possibility of a broken...
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