RK (OFM - Membership of Household - Dependency) India

JurisdictionUK Non-devolved
JudgeMr Justice Blake,Lord Bannatyne,Warr
Judgment Date16 November 2010
Neutral Citation[2010] UKUT 421 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date16 November 2010

[2010] UKUT 421 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)

THE IMMIGRATION ACTS

Before

Mr Justice Blake, THE PRESIDENT

Lord Bannatyne

SENIOR IMMIGRATION JUDGE Warr

Between
RK
Appellant
and
The Secretary of State for the Home Department
Respondent
Representation:

For the Appellant: Mr Z Jafferji instructed by Lawrence Lupin Solicitors

For the Respondent: Mr S Ouseley, Home Office Presenting Officer

RK (OFM — membership of household — dependency) India

Other family Member – Article 3(2) of the Citizens Directive – to be interpreted in the light of Article 10(2) – distinction between membership of household and dependency – meaning of country from which they have come – any requirement to have resided with EEA national or spouse shortly before the application doubted – case remitted for re-examination by Secretary of State.

DETERMINATION AND REASONS
Introduction
1

There is before us the appeal of the appellant, RK, who applied in 2008 for an EEA family permit to join her husband. Both husband and wife are Indian nationals.

2

The appellant's mother in law is a Portuguese national, by reason of connection with Goa. The appellant's mother and father in law moved to the United Kingdom in 2003 exercising Treaty Rights of free movement. In 2005 their son, who was then over 21, joined them in the United Kingdom, as a dependant family member within the definition of “family members” in Article 2(2) of the Citizens Directive 2004/38/EC (“the Directive”).

3

The appellant married in 2007. There was a civil ceremony in India, a religious one is to be celebrated if and when she ever gets to the United Kingdom. Following the civil ceremony the appellant moved into the premises in India owned by her parents in law, where she lives to this day. Her brother in law also lives there.

4

At the time of the EEA application, the appellant's husband was residing in the United Kingdom, in a common household with his parents, pursuant to an EEA Family Permit. He did not have indefinite leave to remain in the United Kingdom and could not sponsor his wife for permanent residence here under the ordinary Immigration Rules.

5

In her application for an EEA permit the appellant stated that she was dependant upon her parents in law and her husband. She identified a sum of money that was remitted by them both to her from the United Kingdom to support her in India. It is an undisputed fact that she resides in the family property in India that her in-laws own.

6

The Entry Clearance Officer (“ECO”) was not satisfied that she was a family member or that she qualified under the Immigration (European Economic Area) Regulations 2006 (“the Regulations”). When the case came before the Immigration Judge (IJ), later in 2008, he also was not satisfied that the appellant qualified under the terms of the Regulations.

The legislation
7

Regulation 8(2) requires that the relative of a EEA national:

  • i. is residing in an EEA State and

  • ii. the EEA national resides in the same state and

  • iii. is dependent upon the EEA national or

  • iv. is a member of his household.

8

If these words are to be applied literally to the appellant she clearly cannot comply with them. She is residing and has at all the material time resided in India which is neither an EEA state nor the country of residence of her husband or parents in law at the time she became a family member. She could not therefore meet i. and ii. above.

9

However, both before the IJ and us, it is contended that she nevertheless fulfilled the requirements of “other family member” (“OFM”) within the meaning of the Directive.

10

The material part of Article 3(2) is as follows:

“Without prejudice to any right to free movement and residence the person 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 of 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”

11

In the case of SM (Metock: extended family members) Sri Lanka [2008] UKAIT 75 the AIT concluded that “country from which they had come” meant the country in which the EEA national had been residing prior to exercising the Treaty rights in question. The AIT had reached that conclusion in part by reference to the guidance given to the construction of Article 3(2) by Buxton LJ in the case of KG (Sri Lanka) and AK (Sri Lanka) v SSHD [2008] EWCA Civ 13.

12

Shortly after the Court of Appeal had delivered its judgment the ECJ handed down its judgment in Case C-127/08 Metock and others (2008) ECR I 6241. The AIT concluded that Metock was concerned with family members and did not change the interpretation of Article 3(2). In the case of Bigia v ECO [2009] EWCA Civ 79, the Court of Appeal accepted that the clarification of the law in Metock did have implications for the construction of Article 3(2) of the Directive. Article 3(1) made reference to a relative who accompanies or joins a Union citizen in a host state. It was accepted by counsel for the ECO that if there was no requirement of prior lawful residence in an EEA state for family members within Article 2 of the Directive, there was no case for importing such a requirement for other family members under Article 3(2). The Court accordingly concluded at [40] that there was no prior requirement for prior residence in an EEA state and regulation 8(2)(a) should be read as if that requirement was absent.

13

However, at [43] it concluded that Metock did not change other aspects of the guidance in KG (Sri Lanka) and noted:

“Thus OFMs who seek to travel from a different country to that from which the Union citizen is moving or has recently moved cannot without more be said to be members of his household. Similarly while an OFM in a non-Member State may be financially dependent upon a Union citizen because he is provided with accommodation or living expenses by the Union citizen, there is no reason why the Union citizen would be discouraged. The OFM could continue to benefit from the accommodation or the income after the Union citizen has exercised the rights in the host Member State.”

14

In neither KG (Sri Lanka), SM or Bigia was judicial consideration given to Article 10 (2) of the Directive that states the following:

“For the residence card to be issued Member States shall require presentation ‘of the following documents:

  • d. In cases falling under points (c) and (d) of Article 2(2) documentary evidence that the conditions laid down therein are met.

  • e. In cases falling under Article 3(2)(a) a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen….”

15

In both the ECJ Case C/105 Jia [2007] QB 545 and the subsequent Court of Appeal case of Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358 use has been made of the subordinate provisions of Community legislation (in Pedro Article 10 of the Directive) identifying the documents that should be presented to obtain the residence card as a means of construction of the requirements for eligibility as a family member within Article 2 of the Directive. In our judgment, Article 10 is a legitimate source of assistance in construing Article 3(2).

16

This does not mean that the provisions for family members are the same for OFMs. The Court of Appeal made that clear in Pedro and so has this Tribunal in VN (EEA rights – Dependency) Macedonia [2010] UKUT 380 (IAC). But the distinction made between Article 10(2)(d) and (e) reflects the difference. Family members may now rely on dependency in the host state, whereas OFMs must show dependency or membership of the household of the Union citizen “in the country of origin or the country from which they arriving”.

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