SM (Metock; extended family members)

The appellant, born 28 September 1978, is a citizen of Sri Lanka.

On 8 June 2006 the respondent refused to issue the appellant with a residence card as confirmation of his right of residence under the Immigration (European Economic Area) Regulations 2006 (“the Regulations”). The appellant had claimed that right as an extended family member of Mrs Panchalingam, an EEA national exercising treaty rights in the United Kingdom (the sponsor).

The appellant, who had arrived in the UK in March 2001, had not appealed against the refusal to grant him asylum in 2001.

The basis on which the appellant had sought the issue of the residence card was that the sponsor, a German national, had first come to the United Kingdom in 1997 as a worker. She had been granted a residence permit as an EEA national exercising treaty rights. The appellant had claimed to be a dependant relative of the sponsor, a second cousin to whom he referred as “aunt”.

The respondent had sought evidence from the appellant's representatives of his residence with the sponsor as part of her household prior to entering the United Kingdom. Some documents had been sent from Sri Lanka but they gave no indication of the dates when the appellant claimed to have lived with the sponsor. The sponsor entered the United Kingdom 4 years before the appellant, in 1997.

The appeal came before Immigration Judge Greasley sitting at Hatton Cross on 17 July 200At that hearing evidence was given by both the appellant and the sponsor.

The appellant gave evidence that his mother had died of cancer in 1998 and that the sponsor was his aunt. He claimed that after the deaths of his mother and grandmother, he had remained with his father and his sister who had looked after him. Whilst living in Sri Lanka the appellant claimed that he and his father and sister were supported by the sponsor from the United Kingdom, funds being sent to them regularly on a monthly basis.

The appellant further claimed that he had lived with the sponsor's sister, Mrs Kiritharakopalan, in the United Kingdom between 2001 and 2006. That had been at the request of the sponsor who had supported him to the extent of providing him with £50 per week. He had remained with Mrs Kiritharakopalan until he moved in with the sponsor, where he had remained.

The sponsor, who also gave evidence before Immigration Judge Greasley, confirmed the relationship, which was not challenged. She confirmed that she had supported the appellant both in Sri Lanka and since his arrival in the United Kingdom.

It is accepted that the appellant has never lived in Germany. It was acknowledged that the appellant was unable to benefit from Regulation 8(2) of the Regulations nor was he able to satisfy the criteria set out in any of the Immigration Rules. However, it was submitted on his behalf that his appeal should be granted pursuant to Article 3 of Directive 2004/38/EC (“the Directive”) because the appellant asserts that the Regulations have not properly transposed the terms of the Directive into UK law.

Despite the arguments submitted on behalf of the respondent by the Home Office Presenting Officer, that there was no reliable evidence relating to a household having been created in Sri Lanka and that there was a paucity of evidence relating to dependency in Sri Lanka, the Immigration Judge allowed the appeal “to the extent that it is remitted to the Secretary of State”.

The Immigration Judge, at paragraphs 27–30 of the determination, said:

• “27. I accept that the appellant has provided proof of dependency in Sri Lanka, in the form of a letter from a village headman, and a GP, but also there is documentary evidence from a store in Sri Lanka which claims that regular financial payments were regularly sent from the sponsor to the appellant whilst living in his native country. The authenticity or genuineness of those documents was not challenged at the appeal hearing.

• 28. I accept that the appellant has been financially dependant upon the sponsor, and I find the appellant is still financially dependant on the sponsor, who it would appear has now undertaken financial support for the appellant, since the death of his mother in 1999.

• 29. I therefore accept that the appellant is dependant upon an EEA national and that he has never lived with the EEA national in Germany. I find the appellant has been dependant upon the sponsor since his arrival in the United Kingdom, and that that dependency is continuing until the present day.

• 30. In all the circumstances, I therefore find that the decision to refuse the application pursuant to the Immigration (EEA) Regulations 2006, is not in accordance with the law.”

The respondent submitted grounds for reconsideration dated 3 August 2006 arguing that the determination was fundamentally flawed because of an incorrect interpretation of the Directive, and in particular at paragraph 2(a) thereof in respect of the phrase “in the country from which they have come”.

Senior Immigration Judge Drabu ordered reconsideration on 10 August 2006, satisfied that the grounds for review raised arguable issues of law which, if established, could alter the outcome of the appeal.

Thus the matter came before us.

This reconsideration first came before us some time ago. The hearing was adjourned for a variety of reasons and there were abortive hearings thereafter. The matter came before us for final disposal on 21 August 2008. We treated that hearing as a de novo hearing, not least because of the volume of recent jurisprudence.

At the outset of the hearing Mr Sharland made an application to re-open the issue of dependency. We considered that as that issue had not either been raised in the grounds which had contended that the Tribunal had made an error of law, or had been argued at any of the earlier reconsideration hearings, it was too late to challenge a factual issue for the first time. The grounds were therefore limited to those raised in the application for reconsideration. It follows that Mr Sharland did not pursue paragraphs 16 and 18 inclusive of his skeleton argument.

So as to identify with clarity the issues it would be helpful in our view to set out the relevant legal provisions at this stage.

Regulation 8 of the Regulations provides:

• “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 an EEA State in which the EEA national also resides 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.”

Regulation 2 defines “EEA State” thus:

• “(a) a member State, other than the United Kingdom;

• (b) Norway, Iceland or Liechtenstein; or

• (c) Switzerland;”

Regulation 12(2) of the Regulations provides:

“12. …

• (2) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if–

  • (a) the relevant EEA national satisfies the condition in paragraph (1)(a);

  • (b) the extended family member wishes to accompany the relevant EEA national to the United Kingdom or to join him there; and

  • (c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit.”

Article 2 of the Directive provides that:

“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...