Vn (Eea Rights – Dependency)

The appellant is a citizen of Macedonia born on 10 April 1986. On 25 September 2009 the respondent decided to refuse the issue of a residence card as confirmation of his right of residence as an extended family member, He is the brother-in-law of Giuseppe Alessi, an Italian national who is in the United Kingdom exercising Treaty rights. The respondent was not satisfied that the appellant had shown he was dependent on his EEA sponsor either prior to or since his arrival in the UK on 17 December 2007 on a visitor's visa. The appellant appealed. In a determination notified on 17 February 2010 Immigration Judge (IJ) Sangha dismissed his appeal. The IJ did accept that the appellant was dependent on his EEA brother-in-law (and his sister) since arrival in the UK (para 29). However, in relation to the situation prior to arrival in the UK, the IJ found that in Macedonia (i) the EEA brother-in-law had never lived with the appellant; and (ii) the appellant had not been financially dependent upon his EEA sponsor (paras 23-26). The IJ accepted that when the appellant was still living in Macedonia with his parents the appellant's sister and his EEA brother-in-law had sent money to them (his parents) but did not accept that this was to support the appellant. In reaching that decision the IJ attached particular weight to the fact that the money transfers were in the name of the appellant's parents and that the appellant's and his witnesses' explanations for why no transfers had been sent to him were unsatisfactory (in particular, there was a conflict between the appellant's evidence that the reason was because he had no ID and his sister's evidence, which at least at one point was that the appellant did have ID). At para 29 the IJ also found that whilst the respondent's decision may interfere with the appellant's family/private life under Article 8 of the European Convention of Human Rights (ECHR), any interference was proportionate because there was no reason why the appellant could not return to Macedonia as an adult and seek employment there and maintain himself.

The appellant was successful in obtaining a grant of permission to appeal which is how the matter comes before me. The appellant's grounds were twofold. Ground 1 submitted that the IJ had applied the wrong legal test by imposing a requirement that the appellant be able to show prior residence in another Member State. Bigia and Ors [2009] EWCA Civ 79 was cited in support.

Ground 2 submitted that in commenting on the appellant's previous application for a visitor visa the IJ failed to show procedural fairness as this matter had not been raised by either party at the hearing or beforehand. I can deal with this point straightaway. This was a case in which someone who was a third-country national had arrived in the UK on a visitor's visa and very shortly after made an application for a residence card on the basis of an EEA link. It was clearly foreseeable that on appeal the appellant would be asked questions about why he had come to the UK and in particular why, if as he claimed he had been dependent on his EEA brother-in-law prior to coming to the UK, he had not sought to apply under reg 12(2) of the Immigration (European Economic Area) Regulations 2006 (“the 2006 Regulations”). Further, the appellant was represented by Counsel and was clearly given adequate opportunity to address the questions asked in cross-examination about this matter.

I can also deal now with an additional ground which Miss Yong sought to raise before me challenging the Immigration Judge's findings of fact relating to the appellant's financial situation in Macedonia. I do not consider that I should entertain this ground. It was not identified in the grounds for permission to appeal and even if the second paragraph of ground 2 suggested some concern about the Immigration Judge's credibility findings, it raised no specific challenge to this important part of the evidence. In any event, even if I had entertained this ground, I would have found that it failed, since the Immigration Judge's findings on the appellant's circumstances in Macedonia were entirely sound. In particular I am satisfied that the IJ reached those findings on the basis of a rounded assessment of the written and oral evidence (including that of the appellant's sister in law).

Before proceeding further it is necessary to set out the relevant European and national legislation.

Article 18 of the European Community Treaty [now Article 21 of the Treaty on the Functioning of the European Union (TFEU)] provides that:

“1. Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect.”

Relevant provisions of Directive 2004/38/EC (the “Citizens' Directive”) are as follows:

“Article 1

This Directive lays down:

• (a) the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

• (b) the right of permanent residence in the territory of the Member States for Union citizens and their family members;

• (c) the limits placed on the rights set out in (a) and (b) on the grounds of public policy, public security or public health.

Article 2

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…

  • (c) the direct descendants who are under the age of 21 or are dependents 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.”

Article 3

• 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 dependents 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 members 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.”

Article 8 deals with “Administrative formalities for Union citizens.”

• “1…for periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities…

• …5. For the registration certificate to be issued to family members of Union citizens…Member States may require the following documents to be presented:…

• …(b) a document attesting to the existence of a family relationship…

• …(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

• (e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin…certifying that they are dependents…”

Also pertinent are recitals 5 and 6 of the Preamble:

• “(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 … the situation of those persons who are not included in the definition of family members … 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...