Upper Tribunal (Immigration and asylum chamber), 2007-02-22, [2007] UKAIT 34 (RG (EEA Regulations , extended family members))
| Jurisdiction | UK Non-devolved |
| Judge | Mr C M G Ockelton, Mr D K Allen |
| Status | Reported |
| Date | 22 February 2007 |
| Published date | 18 April 2007 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 28 November 2006 |
| Subject Matter | EEA Regulations , extended family members |
| Appeal Number | [2007] UKAIT 34 |
RG (EEA Regulations – extended family members) Sri Lanka [2007] UKAIT 00034
ASYLUM AND IMMIGRATION TRIBUNAL
THE IMMIGRATION ACTS
Heard at: Field House Date of Hearing: 28 November 2006
Date of Promulgation: 22 February 2007
Before:
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Allen
Between
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For the Appellant: Ms S O’Rourke, instructed by Tamil Welfare Association
For the Respondent: Mr C Avery, Home Office Presenting Officer
(1) The provisions of subparagraphs (a), (b) and (c) of regulation 8(2) of the Immigration (EEA) Regulations 2006 are alternatives, and the tenses are important. Thus, a claimant may fulfil the requirements of reg 8(2) by showing that he presently meets the requirements of subpara (a), or that he did meet those requirements in the past and now falls within (b) or (c). (2) Because of the definition of ‘EEA State’ in reg 2, residence in the UK by either the applicant or the proposed sponsor does not count as residence in an EEA State for the purposes of reg 8(2). (3) The wording of reg 12 is not apt to include the case of a person (not being an EEA national) who is in the UK and is joined here by a relative who is an EEA national. (4) Article 37 of the Citizens Directive 2004/38/EC is not a ‘standstill’ clause and does not prevent any Member State adopting national law less advantageous than that in force previously provided in all cases that the national law implements the rights given by the Directive. (5) Although EEA nationals from non-EU countries are entitled in the UK (and in many other countries) to rights equivalent to or modelled upon those available to EU citizens under EU law, the claim that national legislation does not implement a Directive is not available to them unless the Directive applies to them.
DETERMINATION AND REASONS
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This is the reconsideration of the appeal of the appellant, a citizen of Sri Lanka, against the decision of the respondent on 15 June 2006 refusing to issue him with a residence card as confirmation of his right of residence in the United Kingdom as the extended family member of an EEA national.
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The appellant arrived in the United Kingdom on 15 March 1998 and applied for asylum. He had apparently previously applied for asylum in some other European country. He was refused asylum. He appealed, and the appeal was dismissed. A further appeal to the Immigration Appeal Tribunal was also dismissed. His brother, whom we shall call “T”, left Sri Lanka in 1989 and moved to Switzerland. We do not know precisely the basis of his admission to that country, but he lived there until he obtained Swiss nationality in March 2005. He then came to the United Kingdom. He arrived here in November 2005. He is, we understand, working here. It is on the basis of his presence here and his Swiss nationality that the appellant seeks a residence card as his dependant relative. The Immigration Judge’s determination states as a fact that is not in issue that “the appellant is the brother of an EU citizen exercising Treaty rights in the United Kingdom.” That is not quite right: Switzerland is not a member of the European Union. It is, however, treated for most purposes as being in the European Economic Area, and it is common ground that, so far as United Kingdom law is concerned, the decision against which the appellant appeals is an EEA decision within the meaning of the Immigration (European Economic Area) Regulations 2006 (SI 1003/2006). Despite the reference in Reg 12 to Entry Clearance Officers, it was also common ground that the relevant regulations are as follows:
“’Extended family member’
8.-(1) In this these regulations ‘extended family member’ means a person who is not a family member of an EEA national under Regulation 7(1)(a), (b) or (c) [which the appellant is not] and who satisfies the conditions in paragraph (2), (3), (4) or (5).
(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 an EEA state 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 on him or to be a member of his household.
[there is no suggestion that the appellant could qualify under paragraph (3), (4) or (5)]
…
Issue of EEA family permit
12. –(1) An Entry Clearance Officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and –
(a) the EEA national –
(i) is residing in the UK in accordance with these Regulations; or
(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and
(b) the family member will be accompanying the EEA national to the United Kingdom or joining him there and -
(i) is lawfully resident in an EEA State; or
(ii) would meet the requirements in the Immigration Rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom.
(2) An Entry Clearance Officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if -
(a) the relevant EEA national satisfies the condition in paragraph (1)(a);
(b) the extended family member wishes to accompany the relevant EEA national to the United Kingdom or to join him there; and
(c) in all the circumstances, it appears to the Entry Clearance Officer appropriate to issue the EEA family permit.
(3) Where an Entry Clearance Officer receives an application under paragraph (2) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.
…”
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The reasons for the respondent’s refusal of the appellant’s application as set out in a letter dated 15 June 2006, are that the respondent was not satisfied that the appellant was dependent upon T, and that the evidence available to the respondent suggested that T had a spouse and child in the United Kingdom and a low income, and would therefore not in any event be able to maintain the appellant. Further, “a refusal would not deter the EEA national from exercising his Treaty rights in the United Kingdom”.
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The Immigration Judge heard oral evidence from the appellant, T and another witness. There was substantial documentary evidence. There were submissions from Ms O’Rourke to the effect that dependency was a question of fact on the evidence, and that sub-paragraphs (a), (b) and (c) in Regulation 8(2) were to be read disjunctively, giving alternative ways in which extended family membership could be established. The Immigration Judge considered LS Sri Lanka [2005] UKIAT 00132 and PB India [2005] UKIAT 00082 and reasoned as follows:
“21. … it is suggested that where there are semi-colons between sub-clauses, those sub-clauses are to be read disjunctively, not conjunctively.
22. Whilst I accept that as a general rule of interpretation one must look at the Rule itself. In this Rule it is clear that is not the intention of the draftsman for the paragraphs to be read disjunctively. Firstly sub-paragraphs (b) and (c) require the person to have already satisfied the condition of (a). If sub-paragraph (a) itself were the sole qualifying condition it would make no sense if that person had to also have other qualifying conditions as set out in sub-paragraphs (b) and (c).
23. Furthermore it is quite clear when carefully reading Regulation 8 that the reference to an EEA State in sub-paragraph (a) is not meant to refer to the United Kingdom. That is also clear because of the references to the United Kingdom in paragraphs (b) and (c).
24. If one therefore reads sub-paragraph (a) in the way I have indicated above, it requires that the person seeking to be an extended family member must have first lived in another EEA State with an EEA national. In this case the appellant was not living with the EEA national at any of the relevant times. He did stay with his brother for several months in 1998, but at that time his brother was not an EEA national. In any event there was a break in residence together of over seven years. Looked at this way, the appellant has never resided in Switzerland at a time when his brother was a Swiss national. I therefore find that the appellant fails to qualify...
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