Upper Tribunal (Immigration and asylum chamber), 2011-08-17, [2011] UKUT 340 (IAC) (Ihemedu (OFMs - meaning))

JurisdictionUK Non-devolved
JudgeDr HH Storey
StatusReported
Date17 August 2011
Published date01 September 2011
CourtUpper Tribunal (Immigration and Asylum Chamber)
Hearing Date16 May 2011
Subject MatterOFMs - meaning
Appeal Number[2011] UKUT 340 (IAC)


Upper Tribunal

(Immigration and Asylum Chamber)

Ihemedu (OFMs – meaning) Nigeria [2011] UKUT 00340(IAC)



THE IMMIGRATION ACTS



Heard at Field House

Determination Promulgated

On 16 May 2011



17 August 2011



Before


SENIOR IMMIGRATION JUDGE STOREY




Between


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant

and


ADEPOJU OLADAPO IHEMEDU



Respondent



Representation:


For the Respondent/Claimant: Mr O Yehinni, Solicitor, Supreme Solicitors

For the Appellant/SSHD: Ms J Isherwood, Home Office Presenting Officer


i) Article 3(2) of Directive 2004/38/EC (“Citizens Directive”) treats other family members (“OFMs”) as a residual category and, in contrast to close family members (“CFMs”) within the meaning of Article 2(2), does not limit it to particular types of relatives (plus spouses or civil partners). There is nothing in the Immigration (European Economic Area) Regulations 2006 akin to the Immigration Appeals (Family Visitor) Regulations 2003 which in our domestic immigration law seeks to specify exhaustively the categories of family relationship that can qualify a person. Only relatives are covered, albeit with focus on those relatives with whom the Union citizen has significant factual ties.


ii) An important consideration in the context of an OFM/extended family member case is that if a claimant had come to the UK without applying for a family permit from abroad (for which provision is made in reg 12 of the Immigration (European Economic Area) Regulations 2006), this will mean that the UK authorities have been prevented from conducting the extensive examination of the individual’s personal circumstances envisaged by reg 12(3) and in the course of such an examination check the documentation submitted. If an applicant chooses not to apply from abroad for a family permit under reg 12 of the 2006 Regulations, thereby denying the UK authorities an opportunity to check documentation in the country concerned, he cannot expect any relaxation in the burden of proof that applies to him when seeking to establish an EEA right.


iii) Regulation 17(4) makes the issue of a residence card to an OFM/extended family member a matter of discretion. Where the Secretary of State has not yet exercised that discretion the most an Immigration Judge is entitled to do is to allow the appeal as being not in accordance with the law leaving the matter of whether to exercise this discretion in the appellant's favour or not to the Secretary of State.



DETERMINATION AND REASONS



1. The respondent (hereafter “the Claimant”) is a citizen of Nigeria. On 5 November 2010 the appellant (hereafter “the Secretary of State”) made a decision refusing to grant him a residence card pursuant to the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). His application for such a card was based on his being a cousin and hence an “extended family member” of his sponsor, Mr John Kenneth Ihemedu, a Belgian national born in Nigeria in November 1973. The respondent did not accept the two were related as claimed. The Claimant appealed.


2. In a determination notified on 21 January 2011 First-tier Tribunal judge, Immigration Judge Somerville, noted the Claimant’s evidence that he had gone to Belgium to live with the sponsor in 2008, that he could not find a job there and so had decided to come to the United Kingdom illegally. The IJ also noted the sponsor’s evidence that he had lived in Belgium since 2002 and that between 2002 and 2005 he was financially supporting the Claimant. Having set out their evidence the IJ went on to make a finding that the two were related as claimed (para 15) and that the Claimant was residing with the sponsor and was dependent on him. The IJ said he had seen a lease agreement relating to the property in the United Kingdom in which the sponsor, the sponsor’s half brother and the claimant were all named as co-tenants. That sufficed for him to find the Claimant and sponsor were residing together in the UK. As to dependency, the IJ wrote: “…given that the [Claimant] is in the United Kingdom illegally, I accept that he does not and indeed cannot work here and therefore I further accept that he is dependent on the sponsor”. At para 17 the IJ concluded:


For these reasons I find that the [Claimant] is an extended family member of an EEA national who is in the UK exercising Treaty rights and is therefore entitled to a residence card”.


3. Earlier, at para 13, the IJ had noted a submission by Mr Yehinni (who also represented the Claimant then) that the Claimant, the sponsor and the sponsor’s half-brother had all applied at the same time but only the claimant had been refused a residence permit.


4. The Secretary of State was successful in obtaining a grant of permission to appeal to the Upper Tribunal. The Secretary of State’s grounds were twofold: first it was contended that the IJ had failed to address the concerns raised by the Secretary of State in the refusal letter about the evidence the claimant had submitted as to the claimed relationship; secondly, it was argued that the IJ had misdirected himself in failing to make a finding concerning whether the claimant had been dependent on the sponsor both prior to and since arrival in the United Kingdom. In relation to prior dependency abroad, the grounds cited Article 10(2)(e) of Directive 2004/38/EC (“the Citizens Directive”) which stipulates that in cases falling under Article 3(2)(a) [which deals with “Other Family Members” (OFMs)] applicants must produce “a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen…” The Senior Immigration Judge who granted permission to appeal noted that it was also arguable that the IJ may have incorrectly applied the guidance given in the Upper Tribunal case of RK (OFM-membership of household – dependency) India [2010] UKUT 421 (IAC).


5. At the hearing Ms Isherwood for the Secretary of State relied on the grounds emphasising that the IJ had not made a finding on whether the claimant was dependent on the sponsor abroad and had not shown that the claimant met the reg 8(2) requirement that he be someone “accompanying or joining” the sponsor. Mr Yekkini submitted that as there was no Home Office Presenting Officer present at the hearing before the IJ, the IJ was entitled to treat the evidence he heard from the Claimant and sponsor as credible and this had dealt with dependency both abroad and in the UK. In the claimant’s bundle there was documentary evidence showing that the Claimant and the sponsor had resided together both in Nigeria and in Belgium. Following Case C-127/08 Metock it did not matter whether the claimant arrived in the UK before or after the sponsor or legally or illegally. The fact that the sponsor’s half-brother had been granted a residence card on the same documents was a separate reason that the IJ could have used, if he had wished, to justify allowing the appeal. In reply Miss Isherwood confirmed that the Claimant’s half-brother had been granted a residence card at the same time as the sponsor.


Legal framework

6. The relevant legal provisions distinguish between Article 2(2) family members or close family members (whom I shall term CFMs) on the one hand and (OFMs)/extended family members on the other. Dealing with CFMs, Article 2(2) of the Citizens Directive states:

'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 … ;

(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 dependant direct relatives in the ascending line and those of the spouse or partner as defined in point (b).”

7. The corresponding provision of the 2006 Regulations, reg 7 (1) states in it relevant parts that:

“ …for the purposes of these Regulations the following persons shall be treated as the family members of another person –

  1. his spouse or his civil partner;

  2. direct descendants of his, his spouse or his civil partner who are –

  1. under 21; or

  2. dependants of his, his spouse or his civil partner;

  1. dependent direct relatives in his ascending line or that of his spouse or his civil partner;

  2. a person who is to be treated as the family member of that other person under paragraph (3)”.

8. Dealing with OFMs/extended family members, Article 3 of the Directive provides:

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 ...

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