Upper Tribunal (Immigration and asylum chamber), 2011-02-24, [2010] UKUT 449 (IAC) (MR and Others (EEA extended family members))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Mr M E Deans, Mr Justice Blake |
| Status | Reported |
| Date | 24 February 2011 |
| Published date | 04 March 2011 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 28 October 2010 |
| Subject Matter | EEA extended family members |
| Appeal Number | [2010] UKUT 449 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
MR and ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC)
THE IMMIGRATION ACTS
Heard at Laganside Court Centre, Belfast
on 28 October 2010
Before
Mr Justice Blake, President
Mr CMG Ockelton, Vice President
Senior Immigration Judge Deans
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant
and
MR
FI
MR
Respondents
and
THE AIRE CENTRE
Interested Party
Representation:
For the Appellant: Ms M O’Brien, Senior Home Office Presenting Officer
For the Respondent: Mr McTaggart BL, instructed by Paul K Nolan and Co
For the Interested Party: Ms N Mole, The AIRE Centre
This decision refers to the Court of Justice of the European Union the questions set out at the end of it.
ORDER FOR REFERENCE
TO THE COURT OF JUSTICE OF THE EUROPEAN UNION
Introduction
-
The Tribunal has to decide the Secretary of State’s appeal against a decision of IJ Fox (“the IJ”) given on 6 April 2009 allowing the appeal of each appellant before him to the extent of remitting their cases for a decision on the merits of their claims to remain as dependent family members of an EEA National. We heard it with the linked case of Jahanara Begum where a separate determination has been made.
-
Jahanara Begum is the widowed mother of Mahbur Rahman who is married to Roisin Patricia Rahman who is an Irish national working in Northern Ireland. The marriage took place on 31 May 2006. Shortly thereafter she and the respondents applied for EEA family permits to come to the United Kingdom as dependants of Mahbur and Rosin Rahman. There was a dispute as to their eligibility that was resolved in their favour on appeal. She was admitted to the United Kingdom with entry clearance as a dependant mother. There was then an application made for a residence permit and that was also refused. The case came before the IJ who concluded that although the evidence was sparse she continued to be dependent since her arrival in the UK. She, however, was a dependent family member in the ascending line.
-
The cases of the respondents raise different issues. Muhammed Rahman is the brother of Mahbur Rahman; Fazly Islam is half brother and Mohibullah Rahman the nephew of Mahbur Rahman. They accordingly have a horizontal rather than a vertical family connection with Mr and Mrs Rahman. They do not fall within the definition of family members under reg. 7 but fall to be treated as extended family members under reg. 8 of the Immigration (European Economic Area) Regulations 2006 SI 2006/1003 (“the Regulations”). At best they claim consideration of the discretionary issue of a residence card under reg. 17 (4) if “in all the circumstances it appears to the Secretary of State appropriate”.
-
They had also been issued with entry clearance to join Mr and Mrs Rahman as dependents of an EEA family member. Their applications for a residence card were refused on the basis that they did not qualify as extended family members and they appealed to the IJ. He concluded that they were in fact dependent and therefore directed their cases be considered for the exercise of discretion under reg. 17(4). The Secretary of State sought reconsideration by the AIT on the basis that the evidence of dependency was unsatisfactory and none of these appellants qualified as extended family members.
-
Reconsideration was ordered in 2009 and the case now comes before us as an appeal to the Upper Tribunal. A precise record of what happened on the previous occasion has been lost, but for the avoidance of doubt if the IJ’s decision has not already been set aside, we set it aside now and will remake the decision for the reasons given below.
-
Although as the IJ noted, the evidence of continued dependency was thin, there was some evidence that each of the respondents resided in the household of Mr and Mrs Rahman who were in remunerative employment and stated they continued to support their dependants. It is now accepted that the IJ was entitled to conclude that the mother Jahanara Begum was a dependant. We would conclude it was open to the IJ to reach the factual findings he did in respect in the cases under consideration in this judgment. Although the issue below was concerned with the essentially factual question of dependency, we pointed out to the parties at the hearing that there were deeper problems about the cases of these appellants that needed examination.
The issue
-
Mr McTaggart in seeking to resist this appeal on behalf of these respondents submitted that each satisfied the terms of reg. 8(2)(a) and (c) of the Regulations and therefore qualified as an extended family member because:
(i) Each is residing in an EEA State in which the EEA national also resides and is dependent upon the EEA national and
(ii) Each continues to be dependent on him.
The difficulty with that submission is that “EEA State” in reg. 2, means a Member State other than the United Kingdom. It is common ground that none of the applicants has been a dependent or a member of the household of his EEA spouse in an EEA state other than the United Kingdom. If their cases are to be determined by the plain words of reg. 8 they do not qualify for the exercise of discretion.
-
If these respondents are to succeed, therefore, it would have to be on the basis that reg. 8 needs to be read down in order to be compatible with the relevant provisions of Directive 2004/83/EC or that the Directive gives directly enforceable rights irrespective of national Regulations transposing them.
-
Article 3(1) of the Directive reads as follows:-
“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. “
-
Article 3(2) provides:
“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, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
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.”
-
The respondents are not family members within Article 2(2). None of them have any freestanding right of their own to free movement and residence, so if Article 3(2) assists in the present case it must be because there is a duty on the United Kingdom to ‘facilitate entry and residence’ ‘in accordance with its national legislation’.
-
If there is such a duty, it is directed at other family members (hereafter “OFMs”) 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 or where serious health grounds strictly require the personal care of the family member by the Union citizen. We are not concerned in the present cases with admission on health grounds or with unmarried partners in a durable relationship.
-
The Union citizen in this case is Roisin Rahman. The country from which the OFMs have come is Bangladesh. There is no evidence or reason to believe that the Union citizen has ever established a household in Bangladesh. The duty under Article 3(2) to facilitate admission in accordance with national legislation applies only where there has been either previous residence in the household of the Union citizen or prior dependency. The text of the Directive does not indicate that the household or the dependency should be in another EEA state. It is unclear from this text alone whether a duty to facilitate residence would extend to membership of a household or dependency that only began in the host state.
-
However, the requirement of pre-admission dependency or membership of the household is indicated by Article 10 of the Directive that provides:
“1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called ‘Residence card of a family member of a Union citizen’ no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.
2. For the residence card to be issued, Member States shall require presentation of the following documents:
(a) a valid passport;
(b) a document attesting to the existence of a family relationship or of a registered partnership;
(c) the registration certificate or, in the absence of a registration system, any other proof of residence in the host member State of the Union citizen whom they are accompanying or joining;
(d) in cases falling under points (c) and (d) of Article...
To continue reading
Request your trial