Oboh and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson |
| Judgment Date | 25 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1525 |
| Docket Number | Case No: C5/2012/0182; C5/2011/2755 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 November 2013 |
[2013] EWCA Civ 1525
Lord Justice Lloyd Jones
Lord Justice Beatson
and
Sir Stephen Sedley
Case No: C5/2012/0182; C5/2011/2755
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
Immigration and Asylum Chamber
Royal Courts of Justice
Strand, London, WC2A 2LL
Zainul Jafferji (instructed by Burton & Burton) for the First to Sixth Appellants
The Seventh Appellant appeared in person
Ben Collins (instructed by The Treasury Solicitor) for the Respondent
Introduction
This is the judgment of the court to which we have all contributed. It concerns the scope of Directive 2004/38/EC ("the 2004 Directive"), a provision about the right of EU citizens to move and reside freely within the territory of the Member States and the arrangements regarding their family members. Article 3(1) makes provision for the grant of a residence card to a defined category of family members. Article 3(2) makes provision for the facilitation of applications by a broader category of family members ("other family members") who are dependants or members of the EU citizen's household. The sole question in these appeals from the Upper Tribunal (Immigration and Asylum Chamber) is whether the appellants can bring themselves within Article 3(2)(a) of the 2004 Directive where the dependency on the EU citizen or membership of his or her household arose only after their arrival in the United Kingdom.
The factual and procedural background
These cases and others were stood out, first pending the decision of the European Court of Justice ("the CJEU") in Case C-83/11 Rahman [2013] QB 249 (" Rahman's case"), and then pending the decision of this court in Aladeselu v Secretary of State for the Home Department [2013] EWCA Civ 144 (" Aladeselu's case"). They and four other applications came before Richards LJ on 3 May 2013. Permission to appeal was refused on a number of fact-specific grounds but given on the ground summarised in [1] above.
The Oboh family appellants
The six appellants in AO's case are Alexander Oboh, Linda, his wife, and their four children, Destiny, Maxwell, Sarah and Joshua. The couple are citizens of Nigeria who married in 1997. On 26 March 1998, Linda arrived in Italy and was given a work permit. She worked in a factory in Italy from 2000. Alexander joined her in Italy on 23 July 2002. Three of the children were born in Italy between 2003 and 2006. Unlike his wife, Alexander did not have regular work.
Alexander Oboh's elder brother, Marcus Oboh, is a German citizen. He moved to the United Kingdom in February 2008 to further his career as a carer. His wife and child stayed in Germany because the family did not wish their child's education to be interrupted. It is not in dispute that Marcus Oboh is an EU citizen who is exercising Treaty rights in the United Kingdom. He is therefore a beneficiary of the rights conferred in particular by Article 3(1) of the Directive and benefits from an extended right of residence in the United Kingdom under Article 7(1)(a) of the 2004 Directive.
On 18 February 2008, after the arrival of Marcus Oboh in the United Kingdom, Alexander and Linda Oboh and their three children, who at that date had a right of permanent residence in Italy, entered the United Kingdom as visitors. At that time, Linda was pregnant and on maternity leave from her Italian job. It appears (see [8] below) that the family was able to travel to the United Kingdom because Marcus Oboh sent them money. The couple's youngest child was born on 17 May 2008. The latter stages of Linda's pregnancy were affected by her ill-health.
On 10 February 2009 the family applied for residence cards on the basis of their dependence on Marcus Oboh, in whose household they resided. Their applications were refused by the Secretary of State on 23 February 2010 on the ground that they had shown insufficient dependency on the brother, both in the United Kingdom and prior to their arrival.
An appeal to the First Tier Tribunal ("FTT") against the refusal of their applications was dismissed on 30 June 2010. The FTT held that the family were not part of the brother's household and were not financially dependent on him, and did not therefore qualify under Regulation 8 of the Immigration (European Economic Area) Regulations 2006, SI 2006 No. 1003 ("the EEA Regulations"). Permission to appeal to the Upper Tribunal was given, and that Tribunal held that the FTT had erred in law because the FTT judge had applied the wrong test of dependency. The matter was re-determined by the Upper Tribunal at a hearing on 16 November 2011. In its determination, promulgated on 25 November, the Tribunal dismissed the appeal.
The Upper Tribunal judge recorded in the decision that it appeared to be agreed that the family were part of the brother's household in the United Kingdom, but he found that they had not proved that they were dependent on him while they lived in Italy. The oral evidence from Alexander, Linda, and Marcus Oboh was that they had received financial help from Marcus for a number of years because, after the birth of their children, Linda's job and the intermittent nature of Alexander's employment did not generate enough income to support the family. The documentary evidence, however, showed only a payment of €2000 by Marcus to Alexander on 28 February 2006 and a payment from him in February 2008, shortly before Alexander and his family travelled to the United Kingdom. The Upper Tribunal judge said that he had been told the money was to enable the family to pay for that travel. He concluded (at [32]) that he was not satisfied that Alexander and his family had demonstrated to the relevant standard that they were dependent on Marcus while they lived in Italy, and that it was insufficient to show that they were now financially dependent on him and living in his household in the United Kingdom.
The Upper Tribunal refused permission to appeal on 3 January 2012. Permission to appeal on a number of fact-specific grounds was refused. The grounds of appeal included challenges to the finding that Alexander and his family had not proved that they were dependent on the brother while they were in Italy. It was also contended that the judge failed to evaluate the evidence before him properly or to give adequate reasons for his finding. Permission was refused both because the grounds did not have a real prospect of success and because they were case-specific challenges which did not meet the second appeal criteria.
Mr Haulader's appeal
Mr Mohammed Haulader was born on 7 February 1981. He is a citizen of Bangladesh. He was given entry clearance to travel to the United Kingdom as a student on 30 September 2004. He entered the United Kingdom on 2 October. His leave to remain as a student was extended on a number of occasions. The last extension was granted on 21 September 2009 and ran until 30 October 2010. Since 2007, he has been in paid employment.
Mr Haulader lived in the same household as his brother. In 2007, his brother married a Mrs S. Ortmann, an EEA national. On 30 October 2010, the date of the expiry of his last period of leave as a student, Mr Haulader applied for a residence card on the basis that he had lived with his brother and sister-in-law since 2007 and had been dependent on those relatives since then, and so was entitled to a residence card. The Secretary of State refused his application on 8 February 2011. She did so on the ground that there was no evidence that Mr Haulader had lived in the same household as the EEA national prior to his arrival in the United Kingdom, or that he was financially dependent on her.
Mr Haulader's appeal to the FTT was dismissed in a determination promulgated on 13 April 2011. The FTT rejected the submission that a purposive meaning had to be given to the Directive, with the result that there was no requirement that the individual be part of the household of the EEA national exercising Treaty rights before his or her arrival in the United Kingdom, and that it sufficed that the dependency was only established in respect of the individual's time in the United Kingdom. An appeal to the Upper Tribunal was dismissed on 13 September 2011. After the hiatus pending the decisions in Rahman and Aladeselu, Mr Halauder's case came before Richards LJ on 3 May 2013.
The legal framework
Directive 2004/38/EC, on the right of EU citizens to move and reside freely
The 2004 Directive amended Regulation (EEC) No 1612/68 on "freedom of movement for workers within the Community". Its title states that it is "on the right of citizens of the Union and their family members to move and reside freely within the Member States". The cases of the appellants are centred on the consequences of the reference in the 2004 Directive to freedom of residence.
The material recitals to the 2004 Directive are recitals 1, 5 and 6. Recital 1 records that EU citizens have a "primary and individual right to move and reside freely within the territory of the Member States". Recital 5 records that, if this right is to be exercised "under objective conditions of freedom and dignity", it should also be granted to their family members, which are to include a registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.
Recital 6 states that "in order to maintain the unity of the family in a broader...
To continue reading
Request your trial
-
Subhan v The Minister for Justice and Equality
...it the effect contended for by the applicants in this case; see Oboh & Ors. (Nigeria) v. Secretary of State for the Home Department [2013] EWCA Civ 1525; [2014] 1 W.L.R. 1680 and EO (Nigeria) v. Secretary of State for the Home Department [2014] EWCA Civ 52 The applicants argue that the i......
-
Mosnu Ahmed Chowdhury v Secretary of State for the Home Department
...and conclusions 25 This Court has previously assumed the need for ongoing dependency (see Aladeselu v SSHD [2013] EWCA Civ 144, Oboh v Home Secretary [2014] 1 WLR 1680, Latayan v SSHD [2020] EWCA Civ 191) when determining other points of law arising from the Directive and the 2006 Regula......
-
Upper Tribunal (Immigration and asylum chamber), 2020-11-12, EA/04173/2019
...(‘Metock’); Bigia v Entry Clearance Officer [2009] EWCA Civ 79 (‘Bigia’); Oboh & Ors v Secretary of State for the Home Department [2013] EWCA Civ 1525 (‘Oboh’); Aladeselu v SSHD [2013] EWCA Civ 144 (‘Aladeselu’); EO (Nigeria) v Secretary of State for the Home Department [2014] EWCA Civ 1418......
-
Upper Tribunal (Immigration and asylum chamber), 2016-08-19, IA/00386/2014 & Ors.
...Badenia AG [2005] ECR I-9215 (see [84-94]; see also , for example, the Court of Appeal’s decision in Oboh v Secretary of State [2013] EWCA Civ 1525) “Careful examination of the case-law shows that purposive interpretation is used only where the provision in question is open to several inter......