Ronivon Soares v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Davis,Lord Justice McFarlane,Lord Justice Longmore
Judgment Date21 May 2013
Neutral Citation[2013] EWCA Civ 575
CourtCourt of Appeal (Civil Division)
Docket NumberCase No: C5/2012/2416
Date21 May 2013

[2013] EWCA Civ 575

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE McKEE

IA/26870/2011

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Longmore

Lord Justice Mcfarlane

and

Lord Justice Davis

Case No: C5/2012/2416

Between:
Ronivon Soares
Appellant
and
Secretary of State for the Home Department
Respondent

Written submissions were lodged by Carl Martin Solicitors on behalf of the Appellant

MR. SARABJIT SINGH (instructed by Treasury Solicitors) for the Respondent.

Hearing date: 2 May 2013

Approved Judgment

Lord Justice Davis

Introduction

1

This appeal raises a point of interpretation of Regulation 8(2)(c) of the Immigration (European Economic Area) Regulations 2006 ("the Regulations"). The essential issue is whether it is capable of applying to the dependants of a spouse who is not an EEA national but who is married to someone who is an EEA national.

2

The appellant was granted leave to appeal by Maurice Kay LJ on 14 December 2012. The appellant, then as now, was represented by a firm of solicitors. A representative of that firm, who had appeared in the tribunal proceedings below but who has no higher court rights of audience, attended before us at the appeal hearing and asked that his previously provided written submissions stand as the appellant's argument: a request to which this court of course readily acceded. He also then applied for an adjournment with a view to obtaining Legal Aid so that counsel might be instructed. Bearing in mind that detailed written submissions had already been lodged on behalf of the appellant, that there had been over four months from the grant of permission and that the appeal had been set down for hearing for a considerable time, this court refused the application. It should, however, be recorded that counsel for the respondent Secretary of State, Mr Sarabjit Singh, was conspicuously fair in his submissions to the court; and he drew attention in his argument to points potentially available to the appellant, as outlined in the appellant's written submissions.

Factual background

3

The background facts were not in dispute for the purposes of this appeal and can be shortly summarised.

4

The appellant, Ronivon Junior Soares, was born in Brazil on 19 March 1993 and is a citizen of Brazil. He has an aunt (his mother's sister), Anair Osmerio de Oliviera, also a citizen of Brazil. In 2006 his aunt married Luis Figuccio in Brazil. Mr Figuccio holds dual Brazilian and Italian nationality. It appears that by this time he had set up a business in the United Kingdom. In due course he came to reside in the United Kingdom, which, as a Union citizen, he was entitled to do. His wife followed him in due course in June 2008, accompanied by the appellant (then 15 years old) and another child. Mrs de Oliviera Figuccio in due course was issued with a residence card as the spouse of an EEA national. In the meantime, however, the appellant (and the other child) had returned to Brazil. The appellant then returned to the United Kingdom in 2009, being granted leave to enter as a visitor. He overstayed. In due course on 11 August 2011 application for a residence card was made on his behalf; but that was refused by the Secretary of State on 2 September 2011. It was that refusal which has generated the appeal proceedings.

5

It was in due course established that in Brazil the appellant had been part of a household comprising himself, his mother and his aunt (Mrs de Oliviera Figuccio). It was the aunt who was the breadwinner and who, in financial terms, supported the family unit in Brazil. It was accepted that the appellant had been a member of that household and dependent on his aunt in Brazil.

6

A factual feature of this particular case is that, on the marriage, Mr Figuccio did not live in Brazil with his wife or join this particular household. When in Brazil, as was found by the tribunal, he lived on Porto Alegre, in the state of Rio Grande do Sul, while the house the appellant shared with his mother and aunt was in Goiania, in the state of Goias, a very great distance away from Porto Alegre. It was conceded that in Brazil the appellant was not part of Mr Figuccio's household. It was, however, argued that the appellant had, in Brazil, been dependent on Mr Figuccio; but that was rejected on the evidence. It was, nevertheless, accepted by the tribunal that the appellant had been dependent, in Brazil, on his aunt (Mrs de Oliviera Figuccio) and she had continued to make remittances of money for him and his mother after she came to the United Kingdom.

7

Since returning to the United Kingdom the appellant has throughout resided at the house of Mr and Mrs Figuccio in Hornsey, north London. He has recently married; he and his wife continue to reside there with Mr and Mrs Figuccio. For the purposes of this appeal, Mr Singh accepted that the appellant was a member of Mr Figuccio's household at the date of his application for a residence card (11 August 2011).

The legal framework

8

The Regulations were made in consequence of Directive 2004/38/EC ("the Citizens' Directive"). The Citizens' Directive had itself replaced various directives, including Directive 73/148/EEC; and it is convenient, in view of the argument advanced, to set out some of the provisions of both those Directives.

9

Directive 73/148/EEC was concerned, amongst other things, with the abolition of restrictions on movement and residence within the community for nationals of member states. By Article 1 restrictions on movement and residence were abolished with regard to certain specified categories of persons. By Article 1(d) these included:

"(d) the relatives in the ascending and descending lines of such nationals and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality."

Article 1.2 then went on to provide as follows:

"2. Member states shall favour the admission of any other member of the family of a national referred to in paragraph 1(a) or (b) or of the spouse of that national, which member is dependent on that national or spouse of that national or who in the country of origin was living under the same roof."

10

Pausing there, those provisions by Article 1(d) extend such abolition in favour of relatives of the specified kind of such nationals and of the spouse of such nationals, if dependent on them, regardless of nationality. Further Article 1.2 provides in terms that admission is to be favoured for other family members dependent on the national or on the spouse of that national.

11

The Citizens' Directive is in different terms, however. In the relevant respects, the underlying purpose of the Citizens' Directive is encapsulated in recitals (5) and (6):

"(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of 'family member' should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(6) In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, 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."

12

Article 2(2) of the Citizens' Directive defines "family member" as follows:

"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 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...

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