Upper Tribunal (Immigration and asylum chamber), 2013-10-07, IA/26045/2012 & ors
| Jurisdiction | UK Non-devolved |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 07 October 2013 |
| Published date | 19 November 2013 |
| Status | Unreported |
| Appeal Number | IA/26045/2012 & ors |
Appeal Number: IA/26045/2012
IA/26046/2012
IA/26048/2012
IA/24953/2012
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/26045/2012
IA/26046/2012
IA/26048/2012
IA/24953/2012
THE IMMIGRATION ACTS
|
Heard at Field House |
Determination Promulgated |
|
on 18th September 2013 |
on 7th October 2013 |
Before
UPPER TRIBUNAL JUDGE HANSON
Between
JOHNSON OCRAN KUMU
KINGSLEY ERIC OCRAN
GODFRED OTOO
GRACE OTOO
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Ms Akther instructed by Maliks & Khan Solicitors for Johnson, Kingsley and Godfred and by BWF Solicitors for Grace.
For the Respondent: Ms Martin – Senior Home Office Presenting Officer.
DETERMINATION AND REASONS
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On 3rd July 2013 the Upper Tribunal found that First-tier Tribunal Judge Miles had made errors of law in relation to certain of these Appellants in the determination promulgated on 20th March 2013, in which he dismissed the appeals against the refusal of the Secretary of State to issue them with a Residence Card in recognition of their right of permanent residence in the United Kingdom under the provisions of Regulation 7 of the Immigration (European Economic Area) Regulations 2006 (as amended) and under Article 8 ECHR.
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The issues before this Tribunal are whether Johnson and Grace are able to succeed under Regulation 7, if the error in relation to Grace is found to be material, and whether for those Appellants unable to succeed under the Regulations, they can under Article 8 ECHR based upon their family and/or private life.
Background
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All four Appellants are members of the same family unit. They are all nationals of Ghana. Johnson was born on 4th June 1987, Kingsley on 10th December 1988, Godfred on 27th January 1986, and Grace on 27th January 1986 too.
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Their father, Alfred Kwaru Ocran, was born on 28th March 1954 in Ghana although he left that country permanently in 1991 and moved to the Netherlands. He lived in the Netherlands between 1991 and 2005 and attained Dutch citizenship. When he was made redundant in 2005 he came to the United Kingdom to seek work. He has worked in this country since.
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Alfred’s evidence in his witness statement dated 17th October 2011, is that he supported his family who remained in Ghana as he would send money with people who he knew were travelling there, cash in hand. After living in Holland for some time he wanted his family to join him so he made arrangements for them to come to Europe. Shortly after arrival in the United Kingdom his family regularised their stay.
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The family lived with him sometime after arrival at an address in Northampton. Since that time the family have made efforts to work and form their own relationships in the United Kingdom although they see each other regularly. Alfred states that he sees the family at weekends and often during weekdays and that they are a family orientated group who cook meals and hosts dinners for each other sometimes, go out for meals as a family as well as on day trips, and maintain telephone contact. They also regularly attend church.
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Alfred refers to the family regularising their stay in 2005 when they were allowed to work or enter education but he told them to study and work to make something of their lives. He states his children are, however, still under his direction. He claims the decision to refuse the application is a breach of human rights for him and the children as they have nowhere to return to in Ghana, they are of the same immediate family, and all are in the United Kingdom. Their friends are here, they have no home in Ghana, and there is nobody who could maintain and accommodate them in Ghana. They have an established life in the United Kingdom.
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In his statement dated 4th February 2013 [A’s appeal bundle B, pages 22 to 25] he repeats his claim the family are all dependent upon him financially and emotionally to varying but significant degrees.
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In his recent witness statement dated 18 September 2013 [A’s bundle, p 123 -127] he repeats the claim that the children are dependent upon him. He refers to the fact the children were issued with Residence Cards valid from June 2006 to July 2011. He further claims to continually support his children in the United Kingdom financially, mentally, and emotionally. He claims that all the children now live with him at his current address in Luton [8].
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Alfred confirms that Godfred and Kingsley are working and that Johnson is carrying out voluntary work for WRVS but does not received any money. His daughter Grace is not working and has not worked since 2011.
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In his oral evidence he stated that when he left Ghana the children went to live with his big sister who is still in Ghana. His sister and an aunt remain in the country although the aunt is 98 years of age. His sister has no children of her own and lives in her own property which is the same house the children lived in when his sister cared for them.
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Alfred was asked how he supported the children emotionally when he was in Holland and they were in Ghana and his answers related to seeing them on return for holidays and occasional telephone contact. He confirmed there is a telephone service run by Vodafone and Internet access now available in Ghana.
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Other relevant elements of his oral evidence are referred to below. Alfred also claimed he will not be able to support his children if returned, there will be no jobs for them in Ghana and that the cost of living there is high.
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I formed the clear impression that Alfred wants his children, all of whom are adults, to remain in the UK with him and that his evidence was directed toward achieving that aim.
Discussion
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Regulation 7 sets out the definition of a "Family member”: (1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person - (a) his spouse or his civil partner; (b) direct descendants of his, his spouse or his civil partner who are - (i) under 21; or (ii) dependants of his, his spouse or his civil partner; (c) dependent direct relatives in his ascending line or that of his spouse or his civil partner; (d) a person who is to be treated as the family member of that other person under paragraph (3).
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The claim in this appeal is that the Appellants are all dependant upon their EU national father. In relation to what constitutes dependency, in Jia Migrationsverket Case C -1/05 the European Court considered “dependence” under Article 1(1)(d) of Directive 73/148/EEC and said this was to be interpreted to the effect that “dependent on them” meant that members of the family of an EU national established in another member state within the meaning of Article 43 of the EC Treaty, needed the material support of that EU national, or his or her spouse, in order to meet their essential needs in the state of origin of those family members or the state from which they had come at the time when they applied to join the EU national. The Court said that Article 6(b) of the Directive was to be interpreted as meaning that proof of the need for material support might be adduced by any appropriate means, while a mere undertaking by the EU national or his or her spouse to support the family members concerned need not be regarded as establishing the existence of the family member’s situation of real dependence.
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In Bigia & Others [2009] EWCA Civ 79, at paragraph 24, Maurice Kay LJ said that where the question of whether someone is a “family member” depends on a test of dependency, that test is as per paragraph 43 of the ECJ’s judgement in Jia. In essence members of the family of a Union citizen needed the material support of that Union citizen or his or her spouse in order to meet their essential needs.
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A further issue arises, especially in relation to Grace; of the effect of the fact her dependency is one of choice. In the recent decision in Lim (EEA -dependency) [2013] UKUT 437 (IAC) it was held that subject to there being no abuse of rights, the jurisprudence of the Court of Justice allows for dependency of choice. Whilst the jurisprudence has not to date dealt with dependency of choice in the form of choosing not to live off savings, it has expressly approved dependency...
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