Upper Tribunal (Immigration and asylum chamber), 2020-11-12, EA/04173/2019
| Jurisdiction | UK Non-devolved |
| Date | 12 November 2020 |
| Published date | 26 November 2020 |
| Hearing Date | 30 October 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/04173/2019 |
Appeal Number EA/04173/2019:
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/04173/2019
THE IMMIGRATION ACTS
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Heard at Field House |
Decision & Reasons Promulgated |
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On 30th October 2020 |
On 12th November 2020 |
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Before
UPPER TRIBUNAL JUDGE KEITH
DEPUTY UPPER TRIBUNAL JUDGE WELSH
Between
MS SABINA BEGUM
(ANONYMITY DIRECTION NOT MADE)
Appellant
and
The secretary of State for the Home department
Respondent
Representation:
For the appellant: Mr G Ó Ceallaigh, instructed by Lexwin Solicitors
For the respondent: Mr E Tufan, Senior Home Office Presenting Officer
DECISION AND REASONS
Introduction
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These are the approved record of the decision and written reasons which were given orally at the end of the hearing on 30th October 2020.
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This is an appeal by the appellant against the decision of First-tier Tribunal Judge C H Bennett (the ‘FtT’), promulgated on 5th February 2020, by which he dismissed the appellant’s appeal under the Immigration (EEA) Regulations 2016, against the respondent’s refusal to issue her a residence card as the extended family member of an EU (Italian) national, her maternal uncle, Mr Shofiqul Islam (the ‘sponsor’).
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The background to the appeal is that the appellant, a Bangladeshi national, had entered the UK, aged 22, on a Tier 4 (General) student visa on 2nd April 2010. However, before entering the UK, as the FtT later found, she lived with her family in Bangladesh. Her father died in 2003, after which time she was dependent financially upon the sponsor, who lived in Italy at the time, and who regularly remitted monies to the appellant, her mother and his mother. The sponsor later settled in the UK on 5th April 2013 and in support of her application, the appellant provided a copy of the sponsor’s Italian ID document. There was a dispute as to when the sponsor was naturalised as an EU (Italian) citizen but the appellant accepts that this was after she entered the UK (possibly only a matter of a few weeks afterwards, in May 2010) and not when she was dependent on him while she lived in Bangladesh.
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The respondent refused the appellant’s application on the basis that she was not satisfied that the appellant was a dependent extended family member of the sponsor.
The FtT’s decision
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The FtT considered the appellant’s appeal on the basis that she was an extended family member and so potentially qualified under Regulation 8(2) of the 2016 Regulations. At §13(c), the FtT cited the well-known case of Moneke (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC), the reported decision of a Presidential panel of this Tribunal, as authority for the proposition that at the time of her pre-entry dependency, (i.e. when the appellant lived in Bangladesh), the sponsor needed to be an EEA national.
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The FtT accepted (and there is no appeal on the core facts) that:
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the sponsor, a Bangladeshi national, had moved to Italy in 1989, where he was resident until coming to the UK in late 2012/early 2013;
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the sponsor acquired Italian citizenship in 2010, after the appellant entered the UK;
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the sponsor and the appellant were related as claimed (maternal uncle and niece) (§22 of the decision);
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the sponsor paid the costs of the appellant’s education and supported the appellant and her family, after the death of the appellant’s father in 2003, up to her arrival in the UK in April 2010 and thereafter (§28).
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At §32, the FtT cited Moneke, and noted that either dependency or membership of the household must be “on a person who is an EEA national at the material time.…It is necessary for the pre entry dependency to be on the EEA national and not on a person who subsequently became an EEA national” (§40(ii) of Moneke)). As a consequence, despite the appellant’s dependency on the sponsor while she lived in Bangladesh, she did not meet the requirements of regulation 8(2) of the 2016 Regulations, as an extended family member of the sponsor.
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The appellant appealed against the FtT’s decision on 18th February 2020. First-tier Tribunal Judge Cruthers initially refused permission on 14th April 2020, but following a renewed application, permission was granted by Upper Tribunal Judge Gill on 18th June 2020. The gist of the grounds, which are set out in further detail below, is whether the proposition from Moneke, set out above at §7, was wrongly decided.
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We should add for completeness that amended grounds of appeal were drafted and submitted on 25th June 2020, after Judge Gill’s grant of permission, but Mr Tufan did not object to us considering the amended grounds. We granted permission for those amended grounds to proceed.
The hearing before us
The appellant’s grounds
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We set out below the appellant’s amended grounds.
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“The sole basis on which the Appellant’s appeal was dismissed was that the Appellant had not been reliant on the Sponsor before entry into the United Kingdom at a time when he was an EEA national, and although he became an Italian citizen the same year the Appellant entered the United Kingdom, possibly the same month, there was no evidence that he became an Italian citizen on or before 2 April 2010 when the Appellant entered the United Kingdom. The Sponsor has in fact lost his certificate of naturalisation, but believes that the date was at or around the date on which the Appellant entered the United Kingdom. [Mr Ó Ceallaigh confirmed to us that the sponsor’s naturalisation was after the appellant entered the UK.]
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The FTT’s conclusion was compelled by the authority of Moneke and others (EEA - OFMs) Nigeria [2011] UKUT 341 (IAC) which concluded:
‘… dependency or membership of the household must be on a person who is an EEA national at the material time. For this reason it is essential that tribunal judges establish when the sponsor acquired EEA nationality.’ [Headnote]
‘It is necessary for the pre entry dependency to be on the EEA national and not a person who subsequently became an EEA national. Thus if a sponsor has been financially supporting OFMs who live abroad for many years before he became an EEA national, but there was no such support after the sponsor acquired EEA nationality, there would be no evidence of dependency on an EEA national.’ [40(iii)]
‘Membership of a household has the meaning set out in KG (Sri Lanka) and Bigia (above); that is to say it imports living for some period of time under the roof of a household that can be said to be that of the EEA national for a time when he or she had such nationality. That necessarily requires that whilst in possession of such nationality the family member has lived somewhere in the world in the same country as the EEA national, but not necessarily in an EEA state.’ [40(iv)]
Grounds
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The Appellant submits that the FTT erred in law in following the decision in Moneke as it was wrongly decided on this point, and that this Tribunal should depart from it. The Appellant submits that this is an important point of principle and practice. That decision is routinely relied upon in this Tribunal and has not received consideration, on this point, either from any domestic or European Court.
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Moreover, the relevant conclusion in Moneke, though it forms part of the Headnote, does not appear to have been the subject of any argument in that case and therefore: (i) should never have been in the Headnote; and (ii) is at least arguably obiter dictum.
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The Appellant submits that this Tribunal should grant permission and depart from the decision in Moneke that an Extended Family Member can only succeed where the dependence relied on in the country of origin was at a time when the EEA Sponsor was an EEA national on the following basis.
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Firstly, the decision in Moneke includes no analysis at all as to why it must be the case that the EEA Sponsor was an EEA national at the time of the dependence prior to entry into the United Kingdom. There is lengthy analysis of where the applicant/sponsor should have lived prior to entry, but none at all on this issue, for which Moneke is also the only authority. The conclusion is obiter. Given the seriousness of the consequences of the decision some detailed consideration of the issue was required, and the absence of such is a reason not to follow it.
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Second, insofar as there is any authority cited in support of the conclusion set out above in Moneke itself, it is KG (Sri Lanka) v SSHD [2008] EWCA Civ 13 and Bigia & Ors v SSHD [2009] EWCA Civ 79 which the Upper Tribunal referred to. However, neither provides any support for the proposition at all, or makes any reference to the issue. There is, as noted above, no higher court authority either domestically or in the CJEU endorsing or examining this issue that the Appellant has been able to find. Moneke is the sole authority cited in support of this issue in Macdonald’s Immigration Law and Practice at [6.140].
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Third, there is nothing in the 2016 Regulations at all limiting the circumstances in which prior dependency is relevant to a period in which the Sponsor was an EEA national. Quite the contrary – an EEA national is exhaustively defined in Regulation 8(6) for...
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