Temilola Opeyemi Aladeselu & Ors v The Secretary of State for the Home Department

1. There are three appellants in this case, each being a citizen of Nigeria. They are aged 41, 38 and 40 respectively. The second and third appellants entered the UK illegally in July 2007 and November 2006 respectively. The first appellant arrived in the UK in August 2007 on a visit visa and subsequently overstayed. In terms of domestic immigration law therefore they are persons with no lawful basis of stay. However, they have a maternal cousin, Wanderlea De Brito, who is their sponsor. It is not in dispute: that her father had lived in the Netherlands and that she acquired Dutch citizenship some considerable time ago (certainly prior to any of the dates mentioned below); that in April 2008 she came to the UK; and that since then she has been here exercising Treaty rights. Neither is it in dispute that: (i) between 2004 and the dates when the three appellants decided to go to the UK the appellants were living with her in Nigeria, in accommodation which she had rented and that she was supporting them; (ii) in between the date of their arrival in the UK and her arrival in April 2008 she continued to support them financially by way of remittances; and (iii) since April 2008 all three have lived with her in London, in accommodation she has rented, and she continues to support them financially.

2. These are the basic facts as found by the First-tier Tribunal judge, Immigration Judge Hodgkinson, who heard their appeals in November 2010. Those appeals arose from a decision made by the respondent on 9 August 2010 to refuse the application each had made for a residence card as the extended family member of the sponsor.

3. The reason why the Immigration Judge dismissed their appeals was a simple one, namely that he did not consider any of the appellants could meet the requirement set out in regulation 8 of the Immigration (European Economic Area) Regulations 2006 (hereafter “the 2006 Regulations”) which stipulate that extended family members must either be accompanying or joining the EEA national sponsor in the UK. In support of this assessment the Immigration Judge relied on the judgment of the Court of Appeal in KG (Sri Lanka ) [2008] EWCA Civ 13 which also concerned an extended family matter (or Other Family Member (OFM) to use the language of the 2004/38/EC (the “Citizens Directive”)), KG, who had arrived before the EEA national/Union citizen sponsor. He recited paras 72-74 of that judgment in which Buxton LJ wrote: “72. As explained in §65 above, the requirement that the relatives should be accompanying or joining the Union citizen is only specifically stated in Directive 2004/38 in relation to article 2 relatives, but it is inconceivable that that assumption is not also made in the case of OFMs. Further, the only sensible assumption is that the case of an OFM arriving from a third country is assessed from this point of view on his first seeking entry into the Member State; because it is then that the issue discussed above must arise, of whether his Community rights should override national immigration law.

73. Both of the appellants plainly fail on that score. When they sought admission to the United Kingdom (or, in the case of KG , arrived here clandestinely) the movement to the United Kingdom of the Union citizen on which their claims are based was still five years in the future. Indeed, in KG ’s case the relation on whom he relies had not yet even achieved the status of Union citizen. And even if that difficulty is disregarded, and the question is asked whether when they applied for residence permits they were accompanying or joining the Union citizen relative, the answer is still in the negative. As a simple matter of fact neither appellant accompanied the Union citizen relative. And as a simple matter of language they could not base their application for a residence permit on any claim that they were joining the Union citizen relative in the United Kingdom. Rather, the Union citizen relative had joined them in the United Kingdom, where they had been present for many years before the Union citizen relative arrived.

74. These objections are not merely pedantic points of construction. Rather, they illustrate that the purpose and justification of the ancillary rights granted to the relatives of Union citizens is to support the exercise by those Union citizens of their own rights, if needs be by overriding domestic immigration law. That is why, to qualify, the relatives must either come with the Union citizen when he is exercising his rights or join him once he has exercised those rights. That purpose and justification is not borne out when an OFM who has already for many years been in breach of the immigration laws of a member state seeks to use the arrival there of his Union citizen relative as a means of legitimising his own previous breach.”

4. In amplifying the grounds seeking permission to appeal Ms Targett-Parker contended that the fact that the appellants entered the UK before the sponsor is not fatal because the test in Article 3.2 of the Citizens Directive does not require them to do so: it only requires them to show that they were part of the sponsor’s household or dependent on the sponsor. Further, she submitted, KG (Sri Lanka ) predated the European Court of Justice ruling in Case C-127/08 Metock and it was clear from the latter case that the requirement that family members “accompany or join” the Union citizen has been held not to require the Union citizen sponsor to have come to the host state first. Whilst the Court of Appeal in its subsequent judgment in Bigia & Others [2009] EWCA Civ 79 only specifically found the Article 2.2 related reasoning in Metock to apply to OFMs/extended family members in one respect (so as to disapply the requirement in reg 8(2)(a) that the OFM be “residing in an EEA State”), it affirmed that under both Article 2.2 and 3.2(a) the emphasis was on the elimination of obstacles to the Treaty rights of the Union citizen ( Bigia , para 43; Metock paras 56, 62 and 92) and in cases like the appellants’ - where there was accepted recent dependency on the Union citizen in the country from which they have come - Maurice Kay LJ in Bigia identified such persons as a sub-class of OFMs who could show an impact on the Union citizen’s exercise of free movement rights (para 43). Thus how and when an OFM arrives in the host Member State is irrelevant.

5. Mr Deller submitted that the important concession made by the respondent in Bigia was expressly limited to the issue of the requirement of prior (lawful) residence in another Member State. The court only differed from KG (Sri Lanka ) on matters relating to this requirement. When the appellants arrived in the UK they were here illegally or, in the case of the first appellant, unlawfully. There was no exercise of any EEA right by the sponsor in prospect at that time; and in any event the purpose behind the scheme was clearly that OFMs/extended family members should only seek to accompany or join an EEA principal already here. Regulation 12 provided the proper route which was for such persons to apply from abroad for a family permit. Legal Framework

6. The relevant legal provisions distinguish between close family members (whom we shall term CFMs) and other family members (whom, following Bigia we shall call OFMs or extended family members). Dealing with CFMs, Article 2.2 of the Citizens Directive (2004/EC/38) states: “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 …; (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 dependant direct relatives in the ascending line and those of the spouse or partner as defined in point (b).”

7. The corresponding provision of the 2006 Regulations, reg. 7(1) states that: “… for the purpose of these Regulations the following persons shall be treated as the family members of another person – (a) his spouse or 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 partners; (d) …”

8. Dealing with OFMs/extended family members, Article 3 of the Directive 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 there are 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 must justify any denial of entry or residence to these people.”

9. Up until 2 June 2011 the corresponding regulation in the 2006 Regulations, regulation 8(2) headed “Extended family members” stipulates: “(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 upon him or to be a member of his household.” Our Assessment

10. It is well-established that in order to qualify as an OFM/extended family member a person must show dependency on the EEA sponsor/Union citizen or membership of the latter’s household both in the country from which she/he has come and in the host Member State: see Bigia & Others ; RK (Membership of household – dependency) India [2010] UKUT 421 (IAC) .

11. It is also well-established that there is no requirement that the OFM/extended family member be resident in another Member State prior to arrival in the host Member State: hence prior to 2 June 2011 the requirement to this effect in regulation 8(1)(a) and the requirement in regulation 12(1)(b) stipulating “lawful residence in an EEA State” was to be disapplied: see Bigia , para 41. As a result of The Immigration (European Economic Area) (Amendment) Regulations 2011 (SI 2011 No.1247) for the words “EEA State” there are now substituted the words “a country other than the United Kingdom”. In regulation 12, for paragraph (1)(b) the provision substituted is “(b) the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there”.

12. What is less clear is whether there are not two further requirements imposed either by the Directive or by the 2006 Regulations namely (1) an “accompanying or joining” requirement ( construed so as to preclude an OFM/extended family member arriving before the Union citizen/EEA national) ; and (2) a requirement of lawful presence in the host State . The status of the former is thrown into sharp relied by the IJ’s assessment of the appellants’ appeals; the status of the latter has been raised by Mr Deller’s contention that the provisions of the 2006 Regulations relating to OFMs have been made pursuant to Article 3.2 of the Directive which limits the obligation on Member States to facilitate their entry and residence to those that are “in accordance with national law” or, as worded in recital 6, “on the basis of its own national legislation”.