Upper Tribunal (Immigration and asylum chamber), 2012-03-12, [2012] UKUT 79 (IAC) (Dauhoo (EEA Regulations - reg 8(2)))

JurisdictionUK Non-devolved
JudgeDr HH Storey
StatusReported
Date12 March 2012
Published date13 March 2012
CourtUpper Tribunal (Immigration and Asylum Chamber)
Hearing Date30 January 2012
Subject MatterEEA Regulations - reg 8(2)
Appeal Number[2012] UKUT 79 (IAC)



Upper Tribunal

(Immigration and Asylum Chamber)

Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 79 (IAC)



THE IMMIGRATION ACTS



Heard at Field House

Determination Promulgated

On 30 January 2012



…………………………………


Before


UPPER TRIBUNAL JUDGE STOREY


Between


MR SHEIKAR AMITH ROY DAUHOO


Appellant

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT


Respondent



Representation:


For the Appellant: Mr R Subramanian, legal representative, Lambeth Solicitors

For the Respondent: Mr G Saunders, Home Office Presenting Officer



Under the scheme set out in reg 8 (2) of the Immigration (European Economic Area) Regulations 2006, a person can succeed in establishing that he or she is an “extended family member” in any one of four different ways, each of which requires proving a relevant connection both prior to arrival in the UK and in the UK:


  1. prior dependency and present dependency


  1. prior membership of a household and present membership of a household


  1. prior dependency and present membership of a household;


  1. prior membership of a household and present dependency.


11. It is not necessary, therefore, to show prior and present connection in the same capacity: i.e. dependency- dependency or household membership-household membership ((i) or (ii) above). A person may also qualify if able to show (iii) or (iv).



DETERMINATION AND REASONS


1. The appellant is a citizen of Mauritius. He arrived in the UK on a six months visit visa to his sister, Ms K Kupp, on 9 September 2004. He came with his spouse, Ms K Dauhoo, who was an EEA national. He received subsequent grants of permission for leave to remain as a student until 31 May 2011. On his own account his marriage broke down in April 2009 and he produced a decree absolute dated 6 April 2010. Since his arrival he claimed to have been living with and dependent upon his sister, Ms Kupp, who was also an EEA national. On 29 January 2011 he applied for a residence card on the basis that he was an extended family member of his sister. On 12 May 2011 the respondent refused that application stating:


There is no evidence to show that you were resident with or dependent on your sister in another country immediately prior to your arrival in the UK in 2004 nor have you supplied any evidence that since you arrived in the UK you have been resident with or financially dependent on her”.


2. The appellant appealed. His case came before First-tier Tribunal Judge Aziz on 28 June 2011. His evidence to the (FTT) was that (1) his sister had always been financially supporting him when he was in Mauritius; (2) his sister had gone on supporting him financially since his arrival in the UK in 2004, even paying for his ex-wife’s studies in the UK; and that (3) after the breakdown of his marriage to Ms Dauhoo in mid-April 2009, he had begun dating Ms A M Renwicz, a Polish national, and they have continued in a subsisting (durable) relationship ever since, she moving in to live with him at his sister’s address in December 2009. The appellant’s evidence was supported by oral evidence from his sister and his girlfriend, his girlfriend’s sister as well as a close friend of the appellant, Mr S Jukhoop. The witnesses’ accounts corroborated those of the appellant.


3. Despite finding the witnesses consistent, the judge found their evidence not credible in key respects. He rejected the appellant’s claim to have been dependent on his sister either when he lived in Mauritius or since he arrived in the UK. As regards the appellant’s claim to have been in a durable relationship with an EEA national since July/August 2009, his finding was:


Whilst I am prepared to accept that Ms A M Renwicz lives in the same household as the appellant, I find that I am not persuaded by the evidence that they are a cohabiting couple, let alone a couple who have been cohabiting for two years”.


4. He went on to dismiss the appellant’s further claim that he was entitled to succeed in his appeal on Article 8 grounds.


5. The appellant was successful in obtaining a grant of permission to appeal. The kernel of the grounds accompanying the application for permission was that the FTT judge had wrongly assessed the evidence about the appellant’s dependency on his sister whilst he was still in Mauritius; that in relation to dependency both in Mauritius and in the UK the judge had misapplied EU law on the meaning of dependency; and that as regards the appellant’s relationship with his girlfriend, the judge had made contradictory findings and had disregarded relevant documentary evidence. These points were amplified by Mr Subramanian in submissions. Mr Saunders, for the respondent, urged that I find the judge had not erred in law.


6. In the course of these submissions I raised with the parties whether the judge’s findings on the appellant’s situation since arrival in the UK were open to the criticism that he had failed to consider whether, even if the appellant could not prove dependency on his sister, he had proved (or could prove) membership of his sister’s household. Mr Saunders said the judge’s finding did not dispute that the appellant was a member of his sister’s household in the UK and that she was the head of his household here. He further accepted that this sufficed to show that the appellant had met the requirements of reg 8(2)(c) so far as his position in the UK is concerned.


Reg 8(2) extended family members


7. In my judgment Mr Saunders was right so to accept. Regulation 8 as amended by the Immigration (European Economic Area) (Amendment) Regulations 2011 (in force from 2 June 2011) is headed “Extended family members”. At reg 8(2) it provides:

(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 a member of his household.”


8. Reg 8 also includes within the definition of extended family members relatives on serious health grounds (reg 8(3)); dependent relatives who meet the requirements of the Immigration Rules (reg 8(4)); and partners in a durable relationship (reg 8(5)). But the focus here is on reg 8(2). As the Tribunal has emphasised in a number of cases, e.g. in RK (OFM – membership of household dependency) India [2010] UKUT 421 (IAC) and Moneke (EEA – OFMs) Nigeria [2011] UKUT 00341 (IAC) (at para 11(b)), the requirements of dependency and household membership as found within reg 8(2)(a) and within reg 8(2)(c) are alternates; they are not conjunctive. That is clear from the relevant wording of each: under reg 8(2)(a) a person must show he is “dependent upon or is a member of [the EEA national’s] household”. Under reg 8(2)(c) a person must show he “continues to be dependent upon…or to be a member of his household”. So in the present case, even though rejecting that the appellant had shown present dependency, the FTT judge should have accepted that he had satisfied this provision by virtue of having shown present membership of the EEA principal’s household.


9. However, it remains that in order to qualify as an extended family member/”other family member” under reg 8(2), a person who is in the UK must show that he meets the requirements of both reg 8(2)(a) and (c). He has to show a relevant connection with the EEA principal both: (a) prior to coming to the UK (the essence of reg 8(2)(a))(the “prior” test); and (b) now he is here in the UK (the essence of reg 8(2)(c)) (the “present” test).


10. It may help to clarify these requirements in the following way. Under the reg 8(2) scheme, a person can succeed in establishing that he or she is an “extended family member” in any one of four different ways, each of which requires proving a relevant connection both prior to arrival in the UK and in the UK:


  1. prior dependency and present dependency


  1. prior membership of a household and present membership of a household


  1. prior dependency and present membership of a household;


  1. prior membership of a household and present dependency.


11. It is not necessary, therefore, to show prior and present connection in the same capacity: dependency- dependency or household membership-household membership, i.e. (i) or (ii) above. A person may also qualify if able to show (iii) or (iv).


12. Although the above scheme is consistent with case law, it is fair to consider one possible semantic objection to it. It might be said that the use of the present tense verb “continues” in reg 8(2)(c) denotes that a person can only meet the requirement to show present dependency if that is a “continued dependency” and, likewise, that a person can only meet the requirement to show present membership of an EEA national’s household if that is a “continued membership”. If that reading...

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