Upper Tribunal (Immigration and asylum chamber), 2011-08-22, [2011] UKUT 341 (IAC) (Moneke and others (EEA - OFMs))

Upper Tribunal

(Immigration and Asylum Chamber)

Moneke (EEA – OFMs) Nigeria [2011] UKUT 00341(IAC)

THE IMMIGRATION ACTS

Heard at Field House	Determination Promulgated
On 14 June 2011
	22 August 2011

Before

MR JUSTICE BLAKE, PRESIDENT

SENIOR IMMIGRATION JUDGE STOREY

Between

TONIA OBY MONEKE

FIDELIS CHUKWUALOKA MONEKE

Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For the Appellants: Mrs R Akthar instructed by Time Solicitors

For the Respondent: Mr S Walker Senior Home Office Presenting Officer

1. A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: they are alternative ways of qualifying as an OFM.

2. In either case the dependency or membership of the household must be on a person who is an EEA national at the material time. For this reason it is essential that tribunal judges establish when the sponsor acquired EEA nationality.

3. By contrast with Article 2(2) family members, an OFM must show qualification as such before arrival in the United Kingdom and the application to join the EEA national who is resident here.

4. Membership of a household has the meaning set out in KG (Sri Lanka) [2008] EWCA Civ 13 and Bigia & Ors [2009] EWCA Civ 79; that is to say it imports living for some period of time under the roof of a household that can be said to be that of the EEA national for a time when he or she had such nationality. That necessarily requires that whilst in possession of such nationality the family member has lived somewhere in the world in the same country as the EEA national, but not necessarily in an EEA state.

5. By contrast the dependency on an EEA national can be dependency as a result of the material remittances sent by the EEA national to the family member, without the pair of them having lived in the same country at that time before making those remittances.

6. The country from which the OFM has come can be either the country from which he or she has come to the United Kingdom or his or her country of origin.

7. Notwithstanding the preliminary reference to the Court of Justice made by the Upper Tribunal in MR & Ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC) tribunal judges can proceed to determine OFM appeals in accordance with the guidance given by the Upper Tribunal in this and related cases, making sure to make findings of fact based on a rigorous examination of the evidence.

8. Where relevant, findings need also to be made on whether it is appropriate to issue a residence card in accordance with the discretion afforded by regulation 17(4) of the Immigration (European Economic Area) Regulations 2006.

9. In deciding whether a person falls within the material scope of regulation 8 of the 2006 Regulations, policy considerations relating to such matters as the appellant’s immigration history, the impact of an adverse decision on the exercise by the EEA national of his or her Treaty rights, etc are irrelevant. Such policy considerations are relevant, however, to the exercise of regulation 17(4) discretion.

DETERMINATION AND REASONS

The facts

1. This is an appeal from a decision of Immigration Judge Kopieczek given on 14 January 2011 dismissing the appeals of both appellants from a refusal of the Secretary of State to issue residence cards to them as dependent members of an EEA national. At the conclusion of the hearing we indicated that we found a material error of law, we would set aside the decision of the IJ and remake it for ourselves, but we concluded that a more detailed factual examination of dependency is required in order to finally determine the appeal. We here give our reasons for those conclusions.

2. Anselem Egboh was born in Nigeria in November 1967 and has made a statement accepted by the IJ that he was brought up in his uncle’s house in Nigeria along with the present appellants, his cousins. In 1997 Mr Egboh moved to Germany to reside and conduct business there. It appears he subsequently obtained German nationality. Neither his original statement nor his supplementary statement or evidence to the IJ explains when this was. In 2005 Mr Egboh came to the United Kingdom. It is unclear precisely when but it seems to have been shortly after 7 March 2005. Thereafter there is evidence that he was exercising a Treaty right as a worker in this country.

3. The first appellant, Tonia Moneke, was born in August 1976 and is now aged 34; the second appellant, her brother Fidelis, was born in August 1978 and is now aged 32. Fidelis came to the United Kingdom as a visitor on 7 March 2005 which appears to have been shortly before Mr Egboh moved here from Germany. Tonia followed in 2006. They both gave short witness statements accepted by the IJ to the effect that for a period of time they lived in the house of Mr Egboh in London. The appellants, supported by their sponsor Mr Egboh, applied for residence cards under regulation 8 of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). The applications were refused by the Secretary of State on the simple grounds that she was not satisfied they were dependent upon the sponsor and therefore fell within the definition of other family member in EU law as transposed by the 2006 Regulations.

4. Shortly before the appeals were heard the appellants filed witness statements. Fidelis’s statement stated that the sponsor “has been extremely helpful; and has helped fund my education since my father died…the sponsor is looked up to in our family as he has provided me with a home in Nigeria and in the United Kingdom and he is also given me financial assistance in order to survive. My sponsor rented the house I lived in whilst in Nigeria. Since my arrival in the United Kingdom he welcomed me to live in his house…Anselem would often send money down with friends or other relatives in order to support us and he would ask for nothing in return…I have needed my sponsor all my life as family in Nigeria could not afford to care for me without Anselem’s assistance”. Tonia made a witness statement in similar terms.

5. The sponsor Mr Egboh’s statement was in these terms: “whilst in Nigeria I did financially assist both the appellants by providing them with enough money to sustain them through their education and allowed them to stay in the house which I had rented. I ensured that they had sufficient finances so they could look after themselves and get what they needed. I provided them money on several occasions throughout a number of years prior to their arrival in the United Kingdom. This was done through trusted people of mine and who went to Nigeria. I would give them money to give to the appellants so that they could spend it on what they needed. The property which Fidelis and Tonia lived in Nigeria is rented by me and I confirm that I have always supported them throughout their time in the United Kingdom.”

The Immigration Judge’s decision

6. When the case was called on for hearing before the IJ there was no attendance by the Home Office Presenting Officer and no response had been made to those witness statements. The IJ heard oral evidence from the parties and in the absence of any challenge concluded that the appellants were dependent on this sponsor in Nigeria and continued to be financially dependent on him when they were in Nigeria and when he was in Germany. The dependency continues in the United Kingdom where the appellants are members of the sponsor’s household. The IJ nevertheless concluded he was bound to dismiss the appeal following the decision of the Court of Appeal in Bigia & Ors [2009] EWCA Civ 79 paragraphs 21 and 38 to the effect that in addition to having to show dependency as a matter of fact the appellants had to show they were dependant upon the sponsor in the country that he was in before he came to the United Kingdom, in this particular case, Germany.

7. He concluded that the decision of the Upper Tribunal in RK (OFM – membership of household – dependency) India [2010] UKUT 421 (IAC) was inconsistent with the Court of Appeal decision that was binding on him. It is of course trite law that the Upper Tribunal as well as the First-tier Tribunal is bound by any decision of the Court of Appeal or the Supreme Court directly in point subject to any subsequent clarification of the law by the higher courts or in the case of EU law by the Court of Justice. If he was bound to dismiss the appeal on this ground as a result of Bigia, then so would we. For the reasons we give below we conclude that the determination of this appeal turns upon the meaning of an EU law...