Ronnie Latayan v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Peter Jackson |
| Judgment Date | 20 February 2020 |
| Neutral Citation | [2020] EWCA Civ 191 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C9/2019/0605 |
| Date | 20 February 2020 |
[2020] EWCA Civ 191
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UTJ Hanson
IA/24865/2015
Royal Courts of Justice
Strand, London, WC2A 2LL
THE SENIOR PRESIDENT OF TRIBUNALS
Lord Justice Peter Jackson
and
Lord Justice Singh
Case No: C9/2019/0605
Greg Ó Ceallaigh (instructed by Lawmatic Solicitors) for the Appellant
Julia Smyth (instructed by Government Legal Department) for the Respondent
Hearing date: 13 February 2020
Approved Judgment
Introduction
This appeal raises two questions:
(1) Whether as a matter of law the child of a person who is in a relationship with an EU citizen (which is not a marriage or a civil partnership) is a direct descendant of the citizen within the meaning of the Regulations that give effect to the Citizens Directive – a question of law.
(2) Whether, if the Appellant is not a direct descendant but an extended family member, she was before arriving in the UK a dependant of the EU citizen within the meaning of the Regulations – a question of fact.
The First-tier Tribunal decided both questions adversely to the Appellant and the Upper Tribunal upheld its conclusions. For the reasons given below, I consider that both decisions were clearly correct on the first issue and that on the second issue, the FTT reached a decision that was open to it and that the UT was right so to hold.
The facts
The Appellant is 46 years old. She was born in the Philippines and is a national of that country. In 1986 her parents divorced. In 1990 her mother came to the UK and has since become a British citizen. In about 1998 she (the mother) began to live with Mr E, an Irish national, now aged 77, who is resident in England.
The Appellant is the youngest of her parents' five children. Her father died in 1995. She claimed to have been financially dependent on Mr E (who she describes as her stepfather) between 1998 and the time she came to the UK. Her case, supported by evidence from her mother and Mr E, was that Mr E would give her mother money to send to her in the Philippines “at least once every quarter”. She provided proof of five remittances sent between 1996 and 2004, in the total sum of some £560.
The Appellant entered the UK in March 2004, aged 24, on a visitor's visa, since when she has lived with her mother and Mr E. In September 2004 she applied to extend her visa to work as a domestic worker, but in 2006 her application for further leave was refused. She made several subsequent applications for leave which were also refused.
This appeal arises from her application for an EEA residence card made on 1 February 2015, which was refused by the Secretary of State's decision dated 24 June 2015. The Appellant was treated as a potential extended family member of Mr E but her application was refused on the basis that she had not shown dependency upon him, either prior to entering the UK or since.
The Appellant appealed. By its determination dated 8 April 2016, the FTT (Judge Moan) dismissed her appeal, holding that she was not a direct descendant of Mr E, and finding that she had not established her dependency upon him before entering the UK, although it was accepted that she had been a member of his household thereafter.
The Appellant appealed and, after a complex procedural history that I need not chart, her appeal was heard by Judge Hanson who dismissed it on 22 October 2018. He held that the Appellant could not succeed because a de facto stepchild of an EU citizen was not a direct descendant, and because the findings of the FTT on dependency had not been shown to be irrational or ones that were not reasonably available on the evidence. Permission to bring a second appeal was granted by McCombe LJ on 5 August 2019.
The Directive and the Regulations
The regulations relevant to this case are the Immigration (European Economic Area) Regulations 2006. They have been replaced by the Immigration (European Economic Area) Regulations 2016, which are not materially different in relation to this issue. Regulations 7 and 8 are in point. They respectively give effect to Articles 2 and 3 of the Citizens' Directive (2004/38/EC).
The Appellant's case is that she falls within Regulation 7(1)(b)(ii).
“7.— Family member
(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—
(a) his spouse or his civil partner;
(b) direct descendants of his, his spouse or his civil partner who are—
(i) under 21; or
(ii) dependants of his, his spouse or his civil partner;
(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;
(d) a person who is to be treated as the family member of that other person under paragraph (3)…”
The Appellant's alternative case is that she falls within Regulation 8(2)(c).
“8.— “Extended family member”
(1) In these Regulations “extended family member” means 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…”
As noted, the Regulations mirror Articles 2 and 3 of the Directive:
“ Article 2
Definitions
For the purposes of this Directive:
1. ‘Union citizen’ means any person having the nationality of a Member State;
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 and those of the spouse or partner as defined in point (b);
3. ‘host Member State’ means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.”
Article 3
Beneficiaries
1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
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.”
Recitals 5 and 6 to the Directive are relevant as showing what the drafters had in mind when distinguishing between family members and extended family members:
“(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.”
The difference between being a family member and an extended family member is therefore that the former enjoy automatic rights of residence while the latter benefit from the more limited right to facilitated entry and residence in accordance with national legislation.
The first issue: direct descendant
The leading authority on the nature of direct descendancy is the decision of the Court of Justice in SM (Child placed under Algerian Kafala) v Entry Clearance Officer Case C-129/18; [2019] INLR 507, given on a reference from our Supreme Court in SM (Algeria) v Entry...
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