England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION
TRIBUNAL
Ref No: 0A304052005

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/02/2009

Lord Justice Maurice Kay :

1. Directive 2004/38/EC, commonly known as "the Citizens' Directive", is concerned with "the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States". Those words came from its descriptive title. In the Preamble, Recital (1) states:

"Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect."

2. Recital (3) states that it is necessary to codify and review the existing Community instruments "in order to simplify and strengthen the right of free movement and residence of all Union citizens". A "Union citizen" is "any person having the nationality of a Member State" (Article 2.1). The position of such a person, as regards his rights of free movement and residence, is relatively straightforward and is founded on Article 18 of the Treaty. But what of his "family members" and, in particular, those who are not themselves Union citizens? The Directive distinguishes between "family members" as defined in Article 2.2 and "other family members" who are dealt with in Article 3.2(a). I shall refer to the latter, without disrespect, as "OFMs".
3. The relevant provisions state:

Article 2.2: " '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 … ;

(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)."

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 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 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."

4. Thus, any dependant parent or grandparent of a Union citizen is a family member, as is a child or grandchild who is under 21 or a dependant of the Union citizen. They benefit from Article 3.1. On the other hand, an adult and non-dependant child is an OFM, as are less direct relatives. They enjoy the lower protection of Article 3.2(a).
5. Implementation of the Directive in this country was sought to be achieved by the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"). "Family members" are defined in Regulation 7 in terms consistent with Article 2.2 of the Directive. Regulation 12 then provides:

"(1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and –

(a) the EEA national –

(i) is residing in the UK in accordance with these Regulations; or

(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and

(b) the family member will be accompanying the EEA national to the United Kingdom or joining him there and –

(i) is lawfully resident in an EEA State; or

(ii) would meet the requirements in the Immigration Rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national … "

6. OFMs are dealt with initially in Regulation 8, which is headed "Extended family members". Regulation 8(2) provides:

"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 in 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."

7. Regulation 17(4) then provides:

"The Secretary of State may issue a residence card to an extended family member … who is not an EEA national on application if –

(a) the relevant EEA national in relation to the extended family member is a qualified person … ; and

(b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card."

It is clear that, as an exercise in transposition, those Regulations did not slavishly follow the language of Articles 2.2 and 3.2.

The relationships underlying these appeals

8. The relationships in the present appeals are complex and not dissimilar from those in other cases which have given rise to difficulties.

(1) UB(India) and a minor

UB is an Indian national. She has a daughter, who was born on 11 December 1997. Their entitlements, if any, derive from their relationship with Lala Bigia. He is UB's father. He was originally resident in India but he also has Portugese nationality and he relied on that when he entered the United Kingdom in 1995. On 16 May 2005, UB and her daughter applied for an EEA family permit in order to join Mr Bigia.

(2) PP(India) and others

These three appellants are Indian nationals. PP is the daughter, AI is the son-in-law and NA is the minor grandson of Pema Bula, who originates from Goa and has Portugese nationality. Mr Bula travelled to Portugal in January 2002 and exercised his right to move to the United Kingdom later that month. On 8 December 2005, the appellants applied for an EEA family permit by reference to Mr Bula.

(3) TS(Sri Lanka)

TS is a citizen of Sri Lanka. He seeks to rely on his relationship with his uncle. TS has been in this country since 2002. His uncle did not arrive here until March 2006, having come from Germany. The uncle, originally a Sri Lankan citizen, had left Sri Lanka for Germany in 1984 (when TS was about 3 years old) and had later acquired German citizenship.

(4) GT(India) and others

These six appellants are siblings and citizens of India. They applied for EEA family permits in August 2004 but were refused. They seek to rely on their relationship with their uncle. He left India and arrived in this country in 2002. He has Portugese citizenship.

9. It is apparent, therefore that two of the appellants – the minor grandchildren in UB(India) and PP(India) – are "direct descendants who are under the age of 21" within the meaning of Article 2.2(b) of the Directive. Others – the adult daughters in UB(India) and PP(India) – are direct descendants in respect of whom the issue of dependancy arises in relation to Article 2.2(b). Failing that, they claim to be OFMs. The third category – the son-in-law in PP(India) and the nephews and nieces in TS(Sri Lanka) and GT(India) and others – are not "family members" within the meaning of Article 2.2 but fall to be considered as OFMs pursuant to Article 3.2.

KG(Sri Lanka) and AK(Sri Lanka) v SSHD [2008] EWCA Civ 13

10. Some of the issues that arise in the present appeals also arose or were considered in KG and AK(Sri Lanka), in which judgment was handed down on 25 January 2008. Giving the lead judgment, Buxton LJ traced the history of the Citizens' Directive back to Regulation (EEC) 1612/68, by which, forty years earlier, the Council had legislated in respect of the movement of migrant workers within the Community. He also considered the jurisprudence of the European Court of Justice, including MRAX [2002] ECR I–6591, Akrich v SSHD [2003] ECR I–9607 and Yungying Jia v Migrationsverket [2007] ECR I-0001.
11. Buxton LJ's conclusions on the difficult issues of construction that arise, particularly in relation to OFMs, are contained in the following extract from his judgment:

"57. The following propositions can be drawn from this survey of the authorities.

58. First, it is the uniform jurisprudence of the ECJ that the rights of free movement by Union citizens who are workers or self-employed created by Regulation 1612/68 and Directive 73/148 were limited to rights to move within the Community.

59. Second, there is no reason to think that the right of free movement for Union citizens generally created by Directive 2004/38 is any different in that respect, and positive reasons, for instance in recital (2) to Directive 2004/38, to support the argument of continuity.

60. Third, the reason for providing rights to relations of Union citizens is to ensure that Union citizens are not deterred from exercising their rights of movement within the Community: see §§ 30-38 above, and the analysis of Akrich in §§ 44-46 above.

61. Fourth, as Akrich provides, an assertion of movement rights by a relation of an Union citizen will be tested against the justification for those rights indicated in §60 above, even in cases where the legislation appears to provide for movement rights by virtue of a relationship alone.

62. Fifth, all of the authority relates to the position of Article 2 family members. MRAX and Commission v Spain may indicate that such family members can obtain access to the Community by reason of their relationship alone, but there is no justification for reading that proposition across into the position of OFM. The latter obtain access not by virtue of a relationship alone, but only if they fulfil the conditions specifically laid down in Article 3(2)(a).

63. Sixth, Jia is not authority for any general proposition that it is unlawful to demand a relation's presence (lawful or otherwise) in a member state before he exercises his rights of movement, and therefore is not authority for reading that proposition into the construction of Article 3(2)(a).

64. If therefore we turn to the construction of Article 3(2)(a), the general issue common to both appeals which we identified in §2 above is whether the provision that OFM have to be dependants or members of the household of the Union citizen "in the country from which they have come" means, as Regulation 8(2)(a) provides, that "the country" has to be the EEA state in which the Union citizen also resides.

65. The basic point can be put quite shortly. No family members have rights of residence unless the Union citizen exercises his own right to move to or reside in a member state of which he is not a national. Article 3.1 of Directive 2004/38 provides that Article 2 family members obtain the benefit of the Directive if they accompany or join such Union citizens. Although not specifically so stated, it is hardly likely that an OFM will not be also so required to be accompanying or joining his relevant Union citizen. The tight relationship between the exercise of rights by the Union citizen and the requirement that the OFMs accompanying or joining him should have been his dependants or members of his household in the country from which they have come very strongly suggests that that relationship should have existed in the country from which the Union citizen has come, and thus have existed immediately before the Union citizen was accompanied or joined by the OFM. It seems wholly unlikely that when Article 10(2) of Regulation 1612/68 and Article 3(2)(a) of Directive 2004/38 introduce the requirement of dependence on and membership of the household of the Union citizen in the country from which the OFM has come, they can have had in mind anything other than dependence on the Union citizen in the country movement from which by the Union citizen is the whole basis of his rights and, thus of the rights of the OFM.

66. That consideration is reinforced not only by the requirement that the OFM must be accompanying or joining the Union citizen, but also by the justification for ancillary rights of movement in terms of not deterring the Union citizen from exercising the primary right (see §60 above). The analysis of the ECJ in Akrich addressed actual but unlawful presence of the family member in the original member state. But the argument that "the country" in Article 3(2)(a) means any country at all, whether or not the Union citizen is there at the time of movement, assumes that the OFM rules will extend to cases where the OFM is not present in the original member state at all, even unlawfully. It is hard to see how the Union citizen will be deterred from exercising his right to move from one member state to another by the prospect of not being able to take with him an OFM who was once, in another state, but is not now, a member of his household.

67. So far so good. But the argument goes no further than to establish that in order to exercise an OFM's ancillary rights the dependence or membership of household must be in the same country as that from which the Union citizen is moving. Regulation 8(2)(a) however requires the OFM to have been a dependant or a member of the household of the Union citizen in the EEA state in which the Union citizen resides.

68. In most cases, including those addressed in these appeals, the country relevant to the rights of the Union citizen will indeed be a member state, because his rights will be based on movement, which the jurisprudence indicates will normally be movement within the Community. That however leaves the so far unresolved position of the Union citizen who wishes to enter a member state other than his own, being a person who has never lived in his own member state, or has lived in a third country for a substantial period of time: see §§ 29-31 above. The most that can be said about the impact of such cases is that, provided Community law sees the need to accommodate them under the freedoms of movement of Union citizen, they would undermine the position of Regulation 8(2)(a) in interpreting Article 3(2)(a) of Directive 2004/38 as requiring "the country from which they have come" as necessarily being an EEA state."

12. In a later part of his judgment, Buxton LJ added (paragraph 79):

"Article 3(2)(a) is expressed in the present tense: in the country from which they have come are dependants or members of the household of the Union citizen. That cannot be disregarded either as a matter of construction or as a matter of common sense. The article speaks in the present tense because it assumes that the case of the OFM will be adjudicated upon at or near to the same time as that of the Union citizen whom he is accompanying or joining. While it will not literally be the case that he is at that time still dependant on the Union citizen or a member of his household in the country from which he has come, it makes sense that he should have been so dependant or a household member very recently. It makes no sense to suppose that this requirement of current dependency or household membership can be fulfilled by demonstrating in 2008, or in 2000, that KG or AG lived in the Union citizen's household until 1992."

13. Finally, Buxton LJ considered the hypothesis to which he had referred in paragraph 68 – "the Union citizen who wishes to enter a member state other than his own, being a person who has never lived in his own member state, or has lived in a third country for a substantial period of time". Although that did not arise in KG and AG, Buxton LJ was inclined to think (paragraph 82) that, when it does arise, a reference to the ECJ might be necessary.
14. If KG and AG had remained the final word on the issues it considered, it would have provided the answer to most of the issues that arise in the present appeals and on other issues it would have provided a highly persuasive steer. That seemed to be the position, particularly when the House of Lords refused leave to appeal on 16 July 2008. However, nine days later, on 25 July, the ECJ (Grand Chamber) gave judgment in Metock v Minister of Justice, Equality and Law Reform, Case C–127/08. The judgment was on a reference from the Irish High Court. The proceedings in the ECJ were expedited and the judgment was not preceded by an Opinion from an Advocate General. In the present appeals, the case for the appellants is that Metock "changes everything", both in relation to Article 2.2 family members and Article 3.2 OFMs. The case for the Secretary of State is that, whilst it does indeed mean that the appeals of the minor grandchildren must be allowed, it has no effect on the cases of the adult appellants. I turn next, therefore, to Metock.

Metock v Minister for Justice, Equality and Law Reform

15. In Ireland, the Citizens' Directive spawned the European Communities (Free Movement of Persons)(No.2) Regulations 2006, which apply to "Union citizens, … qualifying family members of Union citizens who are not themselves Union citizens and … permitted family members of Union citizens". Regulation 3(2) then provided:

"These Regulations shall not apply to a family member unless the family member is lawfully resident in another Member State and is –

(a) seeking to enter the State in the company of a Union citizen in respect of whom he or she is a family member; or

(b) seeking to join a Union citizen, in respect of whom he or she is a family member, who is lawfully present in the State."

Thus, although the drafting is different, the approach to the Directive is quite similar to that taken in this country by our Regulation 8.

16. The Irish High Court had been concerned with four separate cases, all of which came within the reference. At this stage, I shall refer only to the facts of the Metock case itself. Mr Metock, a Cameroon national, arrived in Ireland on 23 June 2006 and applied for asylum. This was finally refused on 28 February 2007. He had been in a relationship with Ms Ikeng, herself originally a Cameroonian national, since 1994. They have two children, born in 1998 and 2006. They married in Ireland in October 2006. She had at some point acquired United Kingdom nationality but had moved to and was working in Ireland from some time in 2006. Mr Metock applied for a residence card as the spouse of a Union citizen working and residing in Ireland. The Minister refused the application on the ground that Mr Metock did not satisfy the condition of prior lawful residence in another Member State pursuant to Regulation 3(2). In the Irish proceedings, Mr Metock sought to challenge that decision. His case, and the cases of the other three claimants, were plainly Article 2.2 "family member" cases and did not concern OFMs.
17. The first question raised by the reference was whether the family member of the Union citizen has to have been lawfully resident in another Member State before arriving in the host Member State in order to benefit from the Directive. On this, the ECJ came to the opposite conclusion to that reached by the Court of Appeal in KG and AK. The following passages from the judgment of the ECJ are relevant:

"49. … no provision of Directive 2004/38 makes the application of the directive conditional on [family members] having previously resided in a Member State.

50. The definition of family members in point 2 of Article 2 of Directive 2004/38 does not distinguish according to whether or not they have already resided lawfully in another Member State …

52. … the fact that Article 5(2) provides for the entry into the host Member State of family members of a Union citizen who do not have a residence card shows that Directive 2004/38 is capable of applying also to family members who were not already lawfully resident in another Member State …

54. Directive 2004/38 must be interpreted as applying to all nationals of non-member countries who are family members of a Union citizen … and as conferring on them rights of entry and residence in that Member State, without distinguishing according to whether or not the national of a non-member country has already resided lawfully in another Member State …

58. It is true that the Court held in … Akrich that, in order to benefit from the rights provided for in Article 10 of Regulation 1612/68, the national of a non-member country who is the spouse of a Union citizen must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated. However, that conclusion must be reconsidered. The benefit of such rights cannot depend on the prior lawful residence of such a spouse in another Member State (see, to that effect, MRAX, paragraph 59 and Case C-157/03, Commission v Spain, paragraph 28.

59. The same interpretation must be adopted a fortiori with respect to Directive 2004/38 …. As is apparent from recital (3) in the preamble to Directive 2004/38, it aims in particular to 'strengthen the right of free movement and residence of all Union citizens', so that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals …

62. If Union citizens were not allowed to lead a normal family life in the host Member State, the exercise of the freedoms they are guaranteed by the Treaty would be seriously obstructed …

64. The refusal of the host Member State to grant rights of entry and residence to the family members of a Union citizen is such as to discourage that citizen from moving to or residing in that Member State, even if his family members are not already lawfully resident in the territory of another Member State …

70. Consequently, Directive 2004/38 confers on all nationals of non-member countries who are family members of a Union citizen within the meaning of point 2 of Article 2 … , and accompany or join the Union citizen in a Member State other than that of which he is a national, rights of entry into and residence in the host Member State, regardless of whether the national of a non-member country has already been lawfully resident in another Member State."

18. The Irish Government had included a "floodgates" argument in its submissions. To this the ECJ responded:

"73. First, it is not all nationals of non-member countries who derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 … , of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national."

19. Moreover (paragraph 74), there still remains a control mechanism under Chapter VI of the Directive which enables a Member State to refuse entry or residence on grounds of public policy, public security or public health. Such matters are considered after an individual examination of the particular case.
20. The second question raised by the reference related to whether the rights of the spouse of the Union citizen arise "irrespective of when and where the marriage took place and of the circumstances in which he entered the host Member State". The ECJ stated:

"92…. It makes no difference whether nationals of non-member countries who are family members of a Union citizen have entered the host Member State before or after becoming family members of that Union citizen, since the refusal of the host Member State to grant them a right of residence is equally liable to discourage that Union citizen from continuing to reside in the Member State."

21. The Court then referred (paragraph 93) to "the necessity of not interpreting the provisions of Directive 2004/38 restrictively and not depriving them of their effectiveness".
22. I have found it appropriate to set out these extracts from Metock and, indeed, from KG and AK at such length because the debate in the present appeals centres upon the extent to which KG and AK must now be revisited as a result of Metock.

The common ground: the minor grandchildren in UB(India) and PP(India)

23. Minor grandchildren are "family members" within the meaning of Article 2.2(c) of the Directive. During their minority they do not need to satisfy the alternative requirement of dependency upon the Union citizen. In the light of Metock, the Secretary of State concedes that the requirement of Regulation 12(1)(b)(i) that the family member who will be accompanying the EEA national to the United Kingdom or joining him there must be "lawfully resident in an EEA state" is offensive to the Directive. The right of a family member to entry and residence cannot be limited by reference to his existing or previous place of residence. The closeness of the family relationship is sufficient in itself to give rise to the right. On this basis, the appeals of the two minor grandchildren succeed.

UB(India): the adult appellant

24. We are here concerned with the adult daughter of a Union citizen. Under Article 2.2(c) of the Directive, she is a "family member" provided that she is a dependant of her father. If she satisfies that test, again, and in the light of Metock, it matters not that she has no personal history of residence in the EEA. In KG and AK, the test of dependency was taken to be as stated by the ECJ in Jia (paragraph 43), namely that family members

"… need the material support of [the Union citizen] 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 [Union citizen]."

25. The history of UB's case is complicated. At the time when the Entry Clearance Officer refused her application for a family permit, the relevant regulations were the Immigration (European Economic Area) Regulations 2000. Although they, too, contained "dependency" and "same household" criteria, the notice of appeal to the AIT was put on the latter rather than the former basis. Her case was that, in India, she was living in a house owned by her father. By the time the appeal was heard, the 2000 Regulations had given way to the 2006 Regulations. With creditable prescience, Immigration Judge Buchanan, before the decisions in KG and AK and Metock, considered that Regulation 12(1)(b)(i) was inconsistent with the requirements of the Directive, which he considered gave rise to directly enforceable rights. Accordingly, UB was not to be shut out by reason of her lack of EEA residence. The Immigration Judge then proceeded to consider dependency. He referred to the father's arrival in the United Kingdom in 1995, UB's subsequent marriage in India, the birth of her daughter in 1997, the breakdown of her marriage and her return with her daughter to live in her father's house in 2001. Her father's evidence was that he had sent money to his daughter on a regular basis since that time. "He would send approximately £50 per month. They were wholly dependent on him." The Immigration Judge found as follows:

"There is … evidence of postal order payments by the spouse to the first appellant … They do not seem to date back for a period of five years when the first appellant was deemed to have moved to the sponsor's house. I do however put weight on the claim that all of the sponsor's family, including two sons and a daughter, are now living with him in the United Kingdom. This would lead to the conclusion that if the first appellant is divorced from her husband she has no other immediate family to turn to for financial support in India and that the sponsor is her source of financial support, and that she is, to a degree, dependent on him … I must look at all the evidence in the round and have concluded, on the balance of probabilities, that the first appellant is divorced and that she is dependent on the sponsor."

26. The Secretary of State sought reconsideration which was ordered on the grounds that the Immigration Judge "may have made an error of law, inter alia, in failing to give adequate reasons for … findings on material matters and in [his] approach to the Directive".
27. On 17 May 2007 the AIT found that the determination of Immigration Judge Buchanan was indeed afflicted by legal errors relating to (1) inadequate reasoning to support the finding that UB is the daughter of Mr Lala Bigia and (2) his reasoning in relation to the primacy of the Directive. The second stage reconsideration took place before Immigration Judge Khan on 6 August 2007. He held that "the Directive does not take precedence over the Regulations". Accordingly, because she could not satisfy Regulation 12(1)(b)(i) by reason of her lack of EEA residence, she had to satisfy Regulation 12(1)(b)(ii), which required consideration of the Immigration Rules and, in particular, paragraph 317 and its test of "the most exceptional compassionate circumstances". The Immigration Judge found that she could not satisfy that test.
28. In this Court, UB does not yet have permission to appeal. Now that her lack of EEA residence is acknowledged to be immaterial by the Secretary of State in the light of Metock and the issue is one of "dependency" or "same household", I would grant permission.
29. The case for the Secretary of State on the appeal is that (1) the finding by Immigration Judge Buchanan of dependency was flawed because it was not based on an application of the Jia test and (2) the evidence cannot support such a finding. Alternatively, the case should be remitted to the AIT for reconsideration of whether dependency is established by reference to the Jia test, which was not considered either by Immigration Judge Buchanan or by Immigration Judge Khan (whose concern, wrongly, was with "most exceptional compassionate circumstances").
30. I consider that there is force in the submission that the finding of Immigration Judge Buchanan was not self-evidently based on an application of the Jia test, which was, of course, a later authority. In the part of the determination in which he dealt specifically with dependency, the Immigration Judge referred to UB's father being "her source of financial support and … she is to a degree dependent on him". Later, when considering "most exceptional compassionate circumstances" in the alternative, he referred to "evidence that [she] is at least mainly financially dependent on [him]".
31. At the reconsideration hearing before Immigration Judge Khan, Mr Bigia again gave evidence, described in these terms:

"Mr Bigia said he sent money to them [ie daughter and granddaughter] from the UK whenever someone went to India, sometimes once a month or every other month and this would be £70 to £80 a time. The money was for bills, daily expenses and clothes. His daughter did not receive any other income. They lived on the ground floor in the property and they had electricity and running water."

32. The two sentences that I have emphasised go further than the findings in the determination of Immigration Judge Buchanan. They appear to have been accepted by Immigration Judge Khan, who must also be presumed to have accepted the evidence in Mr Bigia's witness statement to the effect that his daughter and granddaughter live rent-free in his house.
33. If the findings of Immigration Judge Buchanan had stood alone, I would have had sympathy with Mr Palmer's alternative submission that a remittal to the AIT for a finding in relation to dependency by reference to the Jia test is necessary. However, when one adds to the earlier findings the evidence and corresponding findings from the reconsideration hearing, it seems to me that the outcome of any remitted hearing would be inevitable. Mr Bigia provides his daughter with her rent-free accommodation and he sends her money on a regular basis for "bills, daily expenses and clothes". She has no other source of income. Although the Jia test is a demanding one, in my judgment it is plainly satisfied in this case. Without the support she receives from her father, UB would be unable to meet essential needs. Accordingly I would allow her appeal without remittal. In the circumstances, it is unnecessary to consider her alternative grounds of appeal which assumed that she is an OFM.

PP(India): the adult appellants

34. There is a real problem with this appeal. On 23 January 2006 the Entry Clearance Officer refused an application on behalf of the adult and child appellants for EEA family permits as family members of a Union citizen. The Immigration Judge allowed the appeal of the minor as an Article 2.2 family member but he dismissed the appeal of the parents. The determination of the Immigration Judge was promulgated on 22 June 2007. The Secretary of State applied for reconsideration of the child's case and this was ordered by a Senior Immigration Judge on 9 July 2007. The parents applied for reconsideration of their unsuccessful appeals but they did not do so until 20 August 2007. By section 103A(3)(b) of the Nationality, Immigration and Asylum Act 2002 an application for reconsideration by a person who is outside the United Kingdom must be made within the period of 28 days beginning with the date on which he is treated in accordance with relevant rules as having received notice of the decision of the AIT. By Rule 55(5)(b) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, the deemed date of service is 28 days after the decision has been sent by post to a place outside the United Kingdom. Thus the determination which had been promulgated on 22 June 2007 was deemed to have been served on 20 July 2007 with the consequence that any application by the parents for reconsideration ought to have been made by 17 August 2007. The application on 20 August 2007 was therefore 3 days out of time. No evidence is adduced by the parents to show that the determination had not been served until after the deemed date of service (pursuant to Rule 55(5) of the 2005 Rules) or to show that it had not been reasonably practicable to have made the application within the 28 day time limit (pursuant to section 103A(4)(b) of the 2002 Act). In due course the application was heard by Senior Immigration Judge Jordan. He concluded that the parents' application had not been made in time and he was not satisfied that it had not been reasonably practicable for it to have been made in time. Thus, the primary ground for his decision refusing reconsideration was jurisdictional, rather than on the merits. I do not detect any error of law in that part of his determination. In the circumstances, the parents' appeal to this Court must fail.
35. Although Senior Immigration Judge Jordan based his decision primarily on the jurisdictional ground, he also considered the merits. He held that the original determination of the Immigration Judge dismissing the parents' appeal was free from legal error. In my judgment, he was also correct about that. In one sense, the merits do not now require consideration on the appeal to this Court. However, it is worth referring to them because they provide a useful illustration of a case on dependency which clearly falls the other side of the line from that of UB(India).
36. The Union citizen, Mr Pema Bula, travelled from his home in Goa to Portugal in early January 2002. He had Portuguese nationality. Within less than a month he moved on to the United Kingdom, exercising his right of free movement within the European Union. The appellants applied for family permits as family members on 8 December 2005. The parents had married in 1998. Thereafter they lived not with Mr Bula but with the husband's parents. It was only in April 2005, more than three years after Mr Bula had travelled to Europe, that the parents went to live in his family home. The husband was originally a fisherman but he gave up that occupation in order to work part-time as a taxi driver. The wife has never been employed. The Immigration Judge held that even if Mr Bula had been sending sums of money to the parents, it was not out of necessity or to meet essential needs in the Jia sense. Its effect was to supplement the parents' income, thereby enabling them to pay for things over and above their essential needs, such as private education. Accordingly, they were not dependants within the meaning of the Article 2.2. In my judgment, that was an unassailable finding on the evidence. The Immigration Judge also rejected an alternative claim that the parents were OFMs within the meaning of Article 3(2) and he further rejected a claim by reference to Article 8 of the ECHR. As to the former, the evidence did not disclose dependency or membership of Mr Bula's household at the material time. As to the latter, the case was always extremely weak.

The OFM appeals: TS(Sri Lanka) and GT(India) and others

37. It is first necessary to put a little more flesh on the factual bones to which I referred in paragraphs 7 and 8, above.
38. TS arrived in the United Kingdom from Sri Lanka in 2002, since when he has remained here. His uncle, who was originally a Sri Lankan national, moved from that country to Germany in 1984, at which time TS was about three years of age. The uncle acquired German nationality. Whilst in Germany, he sent money for the benefit of his family, including TS. In March 2006, the uncle exercised his right of free movement and came to this country. TS applied for a residence permit in 2006, relying on his uncle's presence in this country. At that time, he was dependent on his uncle. However, he had never been a dependant or a member of the household of the uncle in Germany or, for that matter, in Sri Lanka. He was simply one of the family members to whom the uncle sent money from time to time, initially in Sri Lanka and latterly in the United Kingdom. His appeal to the AIT was dismissed by an Immigration Judge on 19 December 2006 and by a Senior Immigration Judge on reconsideration on 10 June 2008.
39. GT and his five siblings are of Indian nationality. Their uncle moved from India no later than 2002. He has Portuguese nationality. He has lived in the United Kingdom since October 2002. The appellants applied for family permits in August 2004. The Entry Clearance Officer refused their application because he was not satisfied that they were their uncle's dependants or that they were members of his household. On 15 December 2005, the Immigration Judge dismissed their appeals because they had not lived with their uncle in another EEA country and, on reconsideration, in a determination promulgated on 24 July 2008, two Senior Immigration Judges found no error of law in the determination of the Immigration Judge. That was the day before the judgment of the ECJ in Metock.
40. In both cases, the reconsideration hearing took place after the decision of the Court of Appeal in KG and AK but before the judgment of the ECJ in Metock. It is plain to see that, even before one considers the strength or weakness of their cases on "dependency" and "household", the appellants in both cases are bound to fail if the construction of Article 3.2(a) of the Directive is as determined by KG and AK. We are, of course, bound by that authority unless and to the extent that it is inconsistent with the later decision of the ECJ in Metock.
41. At no point in the judgment in Metock does the ECJ expressly consider OFMs. Indeed, in the extracts from the Directive which it carefully set out, Article 3.2(a) is omitted. However, it is accepted on behalf of the Secretary of State that the reasoning which underlies the conclusion that, in relation to Article 2.2 "family members", there is no need for prior lawful residence in another Member State, must also apply to OFMs. To that extent, the fourth and sixth propositions expounded by Buxton LJ in KG and AK (see paragraphs 10 and 11 above) require modification. This stems from the ECJ's reconsideration of and departure from Akrich. It follows that the provisions in Regulations 8 and 12 of the 2006 Regulations, to the extent that they require an OFM to establish prior lawful residence in another Member State, do not accord with the Directive. It cannot be the case that the policy which produced the result in relation to Article 2.2 family members in Metock is inapplicable in relation to OFMs.
42. The policy, even before the Citizens' Directive, was to recognise "the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the EC Treaty" (Metock paragraph 56). The same interpretation "must be adopted a fortiori" with respect to the Citizens' Directive, it being apparent from recital (3) in the preamble that "it aims in particular to 'strengthen the right of free movement and residence of all Union citizens' …" (Metock, paragraph 59). The scheme of the Directive is then to distinguish between Article 2.2 "family members" of the Union citizen and OFMs. The former, if they accompany or join the Union citizen when he exercises his rights of free movement and residence, benefit from his rights and from the policy that he is not to be discouraged from exercising them by national immigration rules that impact adversely on his "family members". OFMs, on the other hand, are provided with a lesser protection. The host Member State must "facilitate entry and residence" for them and "undertake an extensive examination of the personal circumstances and … justify any denial of entry or residence …" (Article 3.2). Moreover, to benefit from their procedural rights, the OFMs must be persons 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" (Article 3.2(a)). It was these provisions, in particular, that were considered in KG and AK. They raise difficult issues of construction which were determined in that case which (subject to the need for any further reconsideration in the light of Metock) is authority for these propositions:

(1) "The tight relationship between the exercise of rights by the Union citizen and the requirement that the OFMs accompanying or joining him should have been his dependants or members of his household in the country from which they have come very strongly suggests that the relationship should have existed in the country from which the Union citizen has come, and thus have existed immediately before the Union citizen was accompanied or joined by the OFM." (per Buxton LJ at paragraph 65).

(2) "It seems very likely that the assumption is that the household will indeed be that of the Union citizen, that is, that he was in colloquial terms head of it, the relations were under his roof, and on that basis he can reasonably wish to be accompanied by the members of it when he leaves for another country." (per Buxton LJ at paragraph 77).

(3) "Article 3(2)(a) is expressed in the present tense: in the country from which they have come are dependants or members of the household of the Union citizen … while it will not literally be the case that [the OFM] is at that time [viz the time of accompanying or joining] still dependent on the Union citizen or a member of his household in the country from which he has come, it makes sense that he should have been so dependent or a household member very recently." (per Buxton LJ at paragraph 79, emphasis added)."

The question now is whether any of these propositions has been undermined by Metock.

43. In my judgment, Metock does not impact on these propositions. I accept that Article 3.2(a) is based on the same policy considerations as Article 2.2 – "ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the EC Treaty" (here the right of free movement and residence of the Union citizen) and aiming "to strengthen the right of free movement and residence of all Union citizens". That is why the Directive goes beyond Article 2.2 family members and makes provision, albeit in a different way, for OFMs. However, the emphasis remains on elimination of obstacles to the Treaty rights of the Union citizen rather than a policy of family reunification. Thus, OFMs who seek to travel from a different country to that from which the Union citizen is moving or has recently moved cannot without more be said to be members of his household. Similarly, whilst an OFM in a non-Member State may be financially dependent upon a Union citizen because he is provided with accommodation or living expenses by the Union citizen, there is no reason why the Union citizen's movement to the host Member State would be discouraged. The OFM could continue to benefit from the accommodation or the income after the Union citizen has exercised his rights in the host Member State. I accept Mr Palmer's submission that it is only those OFMs who have been present with the Union citizen in the country from which he has most recently come whose ability or inability to move with him could impact on his exercise of his primary right. This also explains Buxton LJ's requirement of very recent dependency or household membership. Historic but lapsed dependency or membership is irrelevant to the Directive policy of removing obstacles to the Union citizen's freedom of movement and residence rights. Unlike Article 2.2 "family members", it cannot be said of them that "the refusal … to grant them a right of residence is equally liable to discourage [the] Union citizen from continuing to reside in that Member State" (Metock, paragraph 92). Accordingly, I conclude that these aspects of Article 3.2(a) are not affected by Metock and that, in these respects, KG and AK remains good law.
44. This conclusion renders the position of the appellants in TS(Sri Lanka) and GT(India) and others hopeless. In each case they fail on dependency and household membership and they fail on the chronology. TS's alternative appeals to the Immigration Rules and Article 8 of the ECHR are also unsustainable. The Senior Immigration Judge did not fall into any legal error.

Conclusion

45. It follows from what I have said that I would allow the appeals of UB(India) and her daughter, and of the grandchild in PP(India). I would dismiss the appeals of the other appellants. I do not consider it to be necessary or appropriate to refer any of these matters to the ECJ. After the hearing it was brought to our notice that one of the unsuccessful appellants in KG and AK has prompted the Commission to take the early steps towards possible enforcement proceedings against the United Kingdom for non-compliance with the Directive. This seems to have been prompted by Metock. However, it does not dispose me to the view that Community law is unclear or that it assists or may assist the unsuccessful appellants in the present case.

Lord Justice Tuckey:

46. I agree.

The Master of the Rolls:

47. I also agree.