Upper Tribunal (Immigration and asylum chamber), 2019-08-02, EA061112016 & EA033912015

Upper Tribunal

(Immigration and Asylum Chamber) Appeal Numbers: EA/03391/2015

& EA/06111/2016

THE IMMIGRATION ACTS

Before

MR JUSTICE LANE, PRESIDENT

UPPER TRIBUNAL JUDGE RINTOUL

Between

BRYCE JAMES EDWARD MAREE (1)

OSARAO JAMES OSAGHAE (2)

(NO ANONYMITY DIRECTION made)

Appellants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation:

For Mr Maree: Mr Farhat, Gulbenkian Harris Andonian

For Mr Osaghe: Mr Layne instructed by Londinium solicitors

For the Respondent: Ms J Smyth, instructed by the Government Legal Department (Osaghae)

Mr P Duffy, Senior Home Office Presenting Officer (Maree)

DECISION AND REASONS

1. Must an individual have been a member of the household of, or dependent on, an EEA national relative for a continuous period of five years in order to be eligible for permanent residence? The respondent’s case is that he must; the appellants in these appeals, for different reasons, argue that that he need not. It is because of that common issue that these appeals were heard together.

2. Both appeals arise under the Immigration (European Economic Area) Regulations 2006, but in different situations.

Mr Maree

3. Mr Maree is a citizen of South Africa. He arrived in the United Kingdom in on 8 July 2009, at the age of 17, on the basis of a family permit granted under the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”) to join his sister and brother-in-law (a German citizen). Shortly after arrival he applied for and was granted a residence card as the extended family member of an EEA national (his brother in law) valid for 5 years. Mr Maree lived with his sister and brother-in-law until 2011 when he moved out to live with fellow church members. He studied and then obtained part-time and finally permanent employment in late 2012. Although employed, he was still financially dependent on his brother-in- law, but this and the other support diminished over time as he matured.

4. The judge concluded that, under the 2006 Regulations, Mr Maree needed to show dependence on his brother-in-law for a period of 5 years from 8 July 2009; and, having directed himself at paragraph [25] as to the meaning of dependency, concluded at paragraph [27] that the appellant had not been dependent for the required continuous five-year period.

5. The judge also considered at paragraphs [28] – [29] Mr Maree’s alternative argument that, following Rahman [2012] EUECJ C-83/11, that continuous dependency as set out in the 2006 Regulations was not required by Directive 2004/38 but rejected it at paragraph [31] and went on to dismiss the appeal.

6. In the grounds of appeal, Mr Maree does not challenge the findings of fact, nor does he dispute that the 2006 Regulations require 5 years’ continuous dependency or membership of the household of the relevant EEA national. Instead, it is averred in the grounds that, properly understood, the CJEU in Rahman concluded at paragraphs[43]–[45] that the legislature (i.e. the EU) had not addressed the question of whether a residence card can be refused to those who have ceased to be dependents and that a member state cannot make decisions in a manner not provided for by the Directive which, in this case, includes a requirement for 5 years continuous dependency or membership of a household.

Mr Osaghae

7. Mr Osaghae is a citizen of Nigeria. On 8 November 2010 he was granted a residence card as the extended family member of his uncle, Dr M O Ehigiamusoe, an Austrian citizen. That card was valid for 5 years. On 23 September 2015 he applied for a card confirming his right of permanent residence. That application was refused on 16 May 2016 following a visit by immigration officers to the uncle’s house. As a result of information obtained during that visit, the respondent concluded that Mr Osaghae was no longer dependent on or residing with his uncle.

8. On appeal, the First-tier Tribunal concluded at paragraph [13] after hearing evidence from both of them that Mr Osaghae was not dependant on his uncle and was not a member of his household at paragraphs [14] – [15], rejecting the submission that all that the relevant regulations required were that Mr Osaghae had been continuously resident.

9. Mr Osaghae sought and was granted permission to appeal against the decision on the grounds that the judge had arguably erred in law with respect to the conclusion that Mr Osaghae was not living with his uncle, there being no proper finding on that ground; and had erred with respect to regulation 15 of the 2006 Regulations, as that did not require him to show financial dependency for five years.

Issues arising

10. There are three issues which arise out of these appeals:

    1. Did the First-tier Tribunal fail to make a proper finding of fact in respect of whether Mr Osaghae was living with his uncle?

    2. On a proper construction, do the 2006 Regulations require an extended family member seeking permanent residence to show five years’ continuous dependency on and/or membership of the household of an EEA national?

    3. Is the requirement to show five years’ continuous dependency and/or membership of the household of an EEA national compatible with Directive 2004/38 (“the Directive”)?

11. It is only issue (iii) which is common to both appeals.

The Law

12. The 2006 Regulations provided, so far as relevant, as follows:

7. - 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).

(2) A person shall not be treated under paragraph (1)(b) or (c) as the family member of a student residing in the United Kingdom after the period of three months beginning on the date on which the student is admitted to the United Kingdom unless—

(a) in the case of paragraph (b), the person is the dependent child of the student or of his spouse or civil partner; or

(b) the student also falls within one of the other categories of qualified persons mentioned in regulation 6(1).

(3) Subject to paragraph (4), a person who is an extended family member and has been issued with an EEA family permit, a registration certificate or a residence card shall be treated as the family member of the relevant EEA national for as long as he continues to satisfy the conditions in regulation 8(2), (3), (4) or (5) in relation to that EEA national and the permit, certificate or card has not ceased to be valid or been revoked

8. - “Extended family member”

(1) In 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) 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 [a country other than the United Kingdom 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 upon him or to be a member of his household.

14. - Extended right of residence

(1) A qualified person is entitled to reside in the United Kingdom for so long as he remains a qualified person.

(2) A family member of a qualified person residing in the United Kingdom under paragraph (1) or of an EEA national with a permanent right of residence under regulation 15 is entitled to reside in the United Kingdom for so long as he remains the family member of the qualified person or EEA national.

15. - Permanent right of residence

(1) The following persons shall acquire the right to reside in the United Kingdom permanently—

(a) an EEA national who has resided in the United Kingdom in accordance with these Regulations for a continuous period of five years;

(b) a family member of an EEA national who is not himself an EEA national but who has resided in the United Kingdom with the EEA national in accordance with these Regulations for a continuous period of five years;

(c) a worker or self-employed person who has ceased activity;

(d) the family member of a worker or self-employed person who has ceased activity;

13. Directive 2004/38 (“the Directive”) provides, so far as is relevant:

Recital (6):In order to maintain the unity of the family in a broader sense and without prejudice to the prohibition of discrimination on grounds of nationality, the situation...