Temilola Opeyemi Aladeselu and Others v Secretary of State for the Home Department

Hearing date: 24 January 2013

Introduction

This is the Secretary of State's appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 28 June 201The respondents to the appeal (to whom I will refer as "the applicants") are citizens of Nigeria who applied for residence cards on the basis of a claimed right to stay in the United Kingdom by virtue of their status as "extended family members" of a citizen of the European Union (namely their first cousin, who is a Dutch national) pursuant to regulation 8 of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"). The Secretary of State refused their applications. Their appeals to the First-tier Tribunal were dismissed by IJ Hodgkinson. On further appeal to the Upper Tribunal, however, a panel comprising SIJ Storey and SIJ Warr set aside the decision of the First-tier Tribunal and allowed the appeals to the extent of finding that the requirements of regulation 8 were met (but leaving open to the Secretary of State a further discretionary decision as to whether residence cards should be granted). The Upper Tribunal granted permission to appeal to this court.

The relevant facts are not in dispute. The applicants themselves, who are aged 41, 38 and 40 respectively, all lived formerly in Nigeria. In November 2006 the third applicant entered the United Kingdom illegally. In July 2007 the second applicant entered the United Kingdom illegally. In August 2007 the first applicant entered the United Kingdom on a visit visa but subsequently overstayed.

The first cousin on whom the claim depends (and thus their sponsor for the applications for a residence card) is Ms De Brito. She lived formerly in the Netherlands and acquired Dutch nationality before any of the dates material to this appeal. In December 2003 she relocated to Nigeria, where she lived until December 2007. During that time she travelled periodically to the Netherlands, where her father continued to reside. In December 2007 she left Nigeria and returned to the Netherlands in order to finalise her affairs before moving to the United Kingdom, where she has resided since April 2008 in the exercise of her treaty rights as an EU citizen.

Between 2004 and the dates when the three applicants respectively left for the United Kingdom, they lived with Ms De Brito in Nigeria, in accommodation rented by her. She also supported them financially. She continued to support them financially by way of remittances after they had come to the United Kingdom, both while she remained in Nigeria and during the period when she was in the Netherlands prior to her own move to the United Kingdom. Since April 2008 the applicants have lived with her in the United Kingdom in accommodation rented by her and she has continued to support them financially.

On 18 August 2008 the applicants applied for a residence card as a confirmation of their claimed right to reside in the United Kingdom as extended family members pursuant to regulation 8 of the EEA Regulations. The application was refused by the Secretary of State for reasons given in a letter dated 9 August 2010. That is the decision that triggered the present proceedings.

Thus, there is no dispute that the applicants have been financially dependent at all material times on Ms De Brito (indeed, the evidence of dependency was not subject to challenge by the Home Office Presenting Officer before the First-tier Tribunal). That dependency existed in Nigeria before they came to the United Kingdom and continued after they came here. It will be noted, however, that the applicants came here between 12 and 21 months before the date of their applications under regulation 8 (and between 8 and 17 months before Ms De Brito joined them here). That fact lies at the heart of the issue on the appeal: the Secretary of State contends that it prevents the applicants from meeting the conditions of regulation 8.

In order to explain the issue it is necessary first to set out the relevant legislative provisions and to summarise the relevant cases.

The legislative framework

Directive 2004/38/EC

Directive 2004/38/EC ("the Directive") lays down (a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by EU citizens and their family members; (b) the right of permanent residence in the territory of the Member States for Union citizens and their family members; and (c) the limits placed on the rights in (a) and (b) on grounds of public policy, public security or public health: see article 1.

Article 2 contains the following definitions:

"2(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 …; (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 provides:

"3(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 …;

…

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."

Thus, by article 3(1) the substantive provisions of the Directive apply only to Union citizens and to family members falling within article 2(2); but by article 3(2) there are separate obligations on the host Member State in respect of "other family members" who meet the stated conditions. Those obligations are further explained in recital (6) to the Directive:

"(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 applicants in this case do not fall within article 3(1). They are "other family members" within article 3(2), but the Secretary of State contends that they do not meet the stated conditions. The expression "other family members" is abbreviated in some of the cases to "OFMs".

The EEA Regulations

The EEA Regulations implement the Directive (as subsequently extended, in a manner irrelevant for present purposes, to the European Economic Area).

Regulation 7(1) defines "family member" in a manner corresponding to article 2(2) of the Directive, and various regulations give effect to the substantive provisions of the Directive in respect of EU citizens and their family members as so defined.

The equivalent of article 3(2) of the Directive is regulation 8, which uses the terminology of "extended family member" rather than "other family member". At the material time it read, so far as relevant:

"8(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 [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...