Upper Tribunal (Immigration and asylum chamber), 2019-10-21, EA/09650/2016

JurisdictionUK Non-devolved
Date21 October 2019
Published date13 January 2020
Hearing Date24 July 2019
CourtUpper Tribunal (Immigration and Asylum Chamber)
Appeal NumberEA/09650/2016

Appeal Number: EA/09650/2016


Upper Tribunal

(Immigration and Asylum Chamber) Appeal Number: EA/09650/2016



THE IMMIGRATION ACTS



Heard at Field House

Decision and Reasons Promulgated

On 24 July 2019

On 21 October 2019




Before


UPPER TRIBUNAL JUDGE CANAVAN



Between


MALIK ZAHEER HUSSAIN

(anonymity direction not made)

Appellant

and


ENTRY CLEARANCE OFFICER

Respondent



Representation:

For the appellant: Mr Z. Raza, instructed by Marks & Marks Solicitors

For the respondent: Mr E. Tufan, Senior Home Office Presenting Officer



DECISION AND REASONS

1. The appellant appealed the respondent’s decision dated 14 July 2016 to refuse to issue a family permit facilitating entry to the UK as the ‘extended family member’ of an EEA national with reference to The Immigration (European Economic Area) Regulations 2006 (“EEA Regulations 2006”). The appellant is the brother of a Portuguese national who is exercising his rights of free movement under the EU treaties in the UK.

2. The appeal was initially dismissed for lack of jurisdiction following the Upper Tribunal decision in Sala (EFMs: right of appeal) [2016] UKUT 00411 in a decision promulgated on 09 August 2017. Following the Court of Appeal decision in Khan v SSHD [2017] EWCA Civ 1755 it was set aside by a judge of the First-tier Tribunal in a decision promulgated on 26 October 2018.

3. First-tier Tribunal Judge E.B. Grant (“the judge”) subsequently dismissed the appeal in a decision promulgated on 15 March 2019. She was satisfied that there was sufficient evidence to show that the appellant was related to the EEA sponsor as claimed. However, she dismissed the appeal because she was not satisfied that there was sufficient evidence to show that the appellant was dependent on the sponsor.

4. In a decision promulgated on 06 June 2019 (annexed) a panel of the Upper Tribunal (UTJ Canavan and UTJ Pickup) found that the First-tier Tribunal decision involved the making of an error of law. The judge’s finding relating to the familial relationship was preserved. The case was adjourned for up to date evidence to be served. The appeal now comes before the Upper Tribunal for the decision to be remade in relation to the issue of dependency.

Legal framework

The Citizens Directive

5. Recitals 5 and 6 of the Directive say the following about family members.

(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of ‘family member’ should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(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 of those persons who are not included in the definition of family members under this Directive, and who therefore do not enjoy an automatic right of entry and residence in the host Member State, should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.’

6. Article 2 sets out the following definitions.

For the purposes of this Directive:

1. ‘Union citizen’ means any person having the nationality of a Member State;

2. ‘family member’ means:

(a) the spouse;

(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);

(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);

3. ‘host Member State’ means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.’

7. Article 3 provides.

1. 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.

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 EEA Regulations 2006

8. The relevant part of regulation 8 of the EEA Regulations 2006 was:

8. (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. …..’

Case law

9. In Lebon C-316/85 [1987] ECR 2811 the European Court of Justice (ECJ) concluded that the status of dependent family member results from a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker's support.

10. In Jia v Migrationsverket [2007] INLR 336 the European Court of Justice made the following findings relating to the meaning of dependency within the context of an application made by a dependent direct family member in the ascending line of the European national’s spouse.

35. According to the case law of the Court of Justice, the status of "dependent" family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national who has exercised his right of free movement or his spouse: see…Lebon…and…Zhu and Chen

36. The court has also held that the status of dependent family member does not presuppose the existence of a right of maintenance, otherwise that status would depend on national legislation, which varies from one case to another: (Lebon…) According to the court there is no need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated in particular by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly (Lebon …).

37. In order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national.”

.

43. In those circumstances, the answer to Question 2(a) and (b) must be that Article 1(1)(d) of Directive 73/148 is to be interpreted to the effect that 'dependent on them' means that members of the family of a Community national established in another Member State within the meaning of Article 43 EC need the material support of that Community 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 have come at the time when they apply to join the Community national. Article 6(b) of that directive must be interpreted as meaning that proof of the need for material support may be adduced by any appropriate means, while a...

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