Sabina Begum v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lady Justice Andrews,Lord Justice Singh,Lord Justice Peter Jackson |
| Judgment Date | 10 December 2021 |
| Neutral Citation | [2021] EWCA Civ 1878 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C9/2021/0385 |
[2021] EWCA Civ 1878
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Upper Tribunal Judge Keith & Deputy Upper Tribunal Judge Welsh
EA/04173/2019
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Peter Jackson
Lord Justice Singh
and
Lady Justice Andrews
Case No: C9/2021/0385
Sonali Naik QC and Greg Ó Ceallaigh (instructed by Lexwin Solicitors) for the Appellant
Julia Smyth (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 1 December 2021
Approved Judgment
Introduction
The appellant, Sabina Begum, is a national of Bangladesh. She first entered the UK aged 22, on 2 April 2010, with leave as a Tier 4 General Student which expired on 31 March 2013. On 30 March 2013 she made an application for further leave to remain as a Tier 4 General Student, which was refused. After exhausting her rights of appeal against that refusal, she remained in the UK. She subsequently made two unsuccessful applications for a residence card under reg. 17(4) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). Finally, on 13 March 2019, she applied for a residence card under reg. 18(4) of the Immigration (European Economic Area) Regulations 2016 (“the 2016 Regulations”) as an extended family member of an EEA National with a permanent right of residence.
The Secretary of State refused that application on the basis that she did not qualify, and the First-tier Tribunal (FtT Judge Bennett) and Upper Tribunal (UT Judge Keith and deputy UT Judge Welsh) dismissed her appeals. She now appeals to this Court on the basis that the Upper Tribunal in this case and the Presidential panel of the Upper Tribunal in Moneke and others (EEA-OFMs) Nigeria [2011] UKUT 341 (IAC) were wrong in law to find that in order to satisfy the threshold requirements of being an “extended family member” under reg 8 of the 2016 Regulations, the applicant must have been dependent upon a relative (“the sponsor”) who was a qualifying EEA national before and at the time when the applicant leaves their country of origin to enter the UK.
The factual background, as found by the First-tier Tribunal, is as follows. The appellant's sponsor is her maternal uncle, Shofiqul Islam. In 1989, Shofiqul Islam moved from Bangladesh to Italy, where he lived until he and his wife and children moved to the UK. The First-tier Tribunal held that the move occurred in February 2014; in the narrative section of its determination, but without referring to that finding, the Upper Tribunal stated that the move was in April 2013, which was consistent with what the sponsor had said in his witness statement. However, the date is immaterial for the purposes of this appeal.
Shofiqul Islam sent money to provide for the upkeep of Sabina Begum, her mother, and other family members in Bangladesh in the period from her father's death in 2003 to her arrival in the UK in April 2010. He also paid her school and college fees in Bangladesh from 2004 to 2008 inclusive. He continued to make payments for Sabina Begum's support after her arrival in the UK, and contributed towards the cost of her postgraduate education here. After he and his family arrived in the UK, Sabina Begum went to live with them. She has remained financially dependent upon him ever since. Shofiqul Islam acquired a right of permanent residence in the UK on 13 February 2019.
Although Shofiqul Islam became a national of Italy, and there was evidence that he was issued with an Italian passport on 11 March 2011, the First-tier Tribunal had no documentary evidence of the date on which he was granted Italian citizenship. As the Upper Tribunal recorded when the matter came before it on appeal, there was a dispute as to when that occurred, but it was accepted by Sabina Begum that it was after she entered the UK. She claims that it was around five weeks later, relying on an Italian document that she produced to the Upper Tribunal which suggests that Shofiqul Islam swore an oath to acquire Italian citizenship, and his details were entered on the relevant register, on 13 May 2010.
On any view, Shofiqul Islam was not an EEA national at the time when Sabina Begum was still living in Bangladesh and he paid the fees for her schooling and the money for her upkeep, nor was he an EEA national when she left Bangladesh and entered the UK. This was the point which proved fatal to her application. It was held that Sabina Begum did not qualify as an “extended family member” because her uncle was not an EEA national at the time when she was living in Bangladesh and dependent upon him.
EU free movement rights ceased to be directly effective and enforceable when the transition period following the withdrawal of the UK from the EU expired at 11pm on 31 December 2020. The 2016 Regulations were repealed by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020, which prevents such domestic legislation (and any rights deriving from provisions of the Treaty on the Functioning of the European Union (“TFEU”) to the extent that they are not implemented in domestic law) from continuing to have effect as retained EU law. Since the end of the transition period, applications can no longer be made for residence cards under the 2016 Regulations.
However, it is accepted by the Secretary of State that a court deciding an appeal such as this one, which concerns an application made before the end of the transition period, should generally do so by reference to the law in force before 11pm on 31 December 2020. This is because:
i) it may be necessary to do so to ascertain whether a person enjoys (or potentially enjoys) rights under the Withdrawal Agreement;
ii) s.16 of the Interpretation Act 1978 provides for general savings when legislation is repealed; and
iii) there is specific, complex secondary legislation which preserves certain provisions of the 2016 Regulations notwithstanding their repeal.
In the present case, if Sabina Begum did qualify as an extended family member, and if discretion were subsequently exercised in her favour, she would fall within the scope of the Withdrawal Agreement by virtue of Article 10(3), and enjoy potential rights accordingly.
The Secretary of State contends that her interpretation of the 2016 Regulations was entirely in accordance with EU law as it applied on 31 December 2020 and as applied by the Upper Tribunal in the case of Moneke (above). For the reasons set out below, I have concluded that the Secretary of State is right. Unfortunately for the appellant, because she did not wait until after her uncle had acquired Italian citizenship before she moved to the UK, she did not meet the qualifying criteria which would have enabled her application for an EEA residence card to be considered on its merits.
Extended family members
Directive 2004/38/EC (“the Directive”) was enacted with a view to remedying the piecemeal approach to the “primary and individual right” of an EU citizen to move and reside freely within the territories of the member states (see recitals (3) and (4)). Its key objective is to promote the right of free movement of EEA nationals, subject to limitations and conditions of public policy, public health, and public security (recital (1)). As this Court recently confirmed in Chowdhury v Secretary of State for the Home Department [2021] EWCA Civ 1220, [2021] 1 WLR 5544 at [25], whilst the family circumstances and domestic responsibilities of an EEA national necessarily have an impact on that person's freedom to exercise treaty rights, the objective of the Directive is to enable free movement, not family reunification.
As more fully explained by Macur LJ in Chowdhury at [3] to [9], there are two distinct categories of family member under EU law, namely, direct family members falling within Article 2(2) of the Directive, and “other family members” falling within Article 3(2). This expression is often abbreviated to “OFM”. Persons falling within the former category enjoy automatic rights of residence, whilst persons falling within the latter — referred to in the 2006 and 2016 Regulations as “extended family members” — do not.
Article 3(2) of the Directive explains who can qualify as an “OFM” and sets out the obligations of the member states towards such persons. It provides, so far as material, as follows:
“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… (Emphasis added).
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.”
Recital 6 explains the background to that obligation in these terms:
“in order to maintain the unity of the family in a broader sense… the situation of those persons who were 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...
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Upper Tribunal (Immigration and asylum chamber), 2023-10-24, UI-2021-001579 & UI-2021-001581
...Scheme Family Permit and Travel Permit, version 12, and [7]-[10] of Begum v Secretary of Secretary of State for the Home Department [2021] EWCA Civ 1878.) The point we are being asked to consider is not, arguably, a new point as the discretionary nature of whether to grant entry to an exten......
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Upper Tribunal (Immigration and asylum chamber), 2022-05-05, [2022] UKUT 00157 (IAC) (Sohrab and Others (continued household membership))
...the construction of regulation 8(2)(b)(ii) of the 2016 Regulations. We note that in Begum v Secretary of State for the Home Department [2021] EWCA Civ 1878, concerning the need for the EEA sponsor to be an EEA citizen at the time of the relevant connection in the country of origin, Andrews ......
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Upper Tribunal (Immigration and asylum chamber), 2022-07-14, EA/00500/2021
...guidance entitled EU Settlement Scheme Family Permit and Travel Permit, version 12, refers. (See also [7]-[10] of Begum v SSHD [2021] EWCA Civ 1878.) Between 15 August 2019 and 30 December 2020 (and therefore when this appellant’s application for a family permit was made and refused), regul......
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Upper Tribunal (Immigration and asylum chamber), 2022-11-10, EA/03229/2021 & Ors.
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