England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Senior Immigration Judges Storey and Warr

		Royal Courts of Justice Strand, London, WC2A 2LL
		01/03/2013

Lord Justice Richards :

Introduction

1. This is the Secretary of State's appeal against a decision of the Upper Tribunal (Immigration and Asylum Chamber) promulgated on 28 June 2011. The respondents to the appeal (to whom I will refer as "the applicants") are citizens of Nigeria who applied for residence cards on the basis of a claimed right to stay in the United Kingdom by virtue of their status as "extended family members" of a citizen of the European Union (namely their first cousin, who is a Dutch national) pursuant to regulation 8 of the Immigration (European Economic Area) Regulations 2006 ("the EEA Regulations"). The Secretary of State refused their applications. Their appeals to the First-tier Tribunal were dismissed by IJ Hodgkinson. On further appeal to the Upper Tribunal, however, a panel comprising SIJ Storey and SIJ Warr set aside the decision of the First-tier Tribunal and allowed the appeals to the extent of finding that the requirements of regulation 8 were met (but leaving open to the Secretary of State a further discretionary decision as to whether residence cards should be granted). The Upper Tribunal granted permission to appeal to this court.
2. The relevant facts are not in dispute. The applicants themselves, who are aged 41, 38 and 40 respectively, all lived formerly in Nigeria. In November 2006 the third applicant entered the United Kingdom illegally. In July 2007 the second applicant entered the United Kingdom illegally. In August 2007 the first applicant entered the United Kingdom on a visit visa but subsequently overstayed.
3. The first cousin on whom the claim depends (and thus their sponsor for the applications for a residence card) is Ms De Brito. She lived formerly in the Netherlands and acquired Dutch nationality before any of the dates material to this appeal. In December 2003 she relocated to Nigeria, where she lived until December 2007. During that time she travelled periodically to the Netherlands, where her father continued to reside. In December 2007 she left Nigeria and returned to the Netherlands in order to finalise her affairs before moving to the United Kingdom, where she has resided since April 2008 in the exercise of her treaty rights as an EU citizen.
4. Between 2004 and the dates when the three applicants respectively left for the United Kingdom, they lived with Ms De Brito in Nigeria, in accommodation rented by her. She also supported them financially. She continued to support them financially by way of remittances after they had come to the United Kingdom, both while she remained in Nigeria and during the period when she was in the Netherlands prior to her own move to the United Kingdom. Since April 2008 the applicants have lived with her in the United Kingdom in accommodation rented by her and she has continued to support them financially.
5. On 18 August 2008 the applicants applied for a residence card as a confirmation of their claimed right to reside in the United Kingdom as extended family members pursuant to regulation 8 of the EEA Regulations. The application was refused by the Secretary of State for reasons given in a letter dated 9 August 2010. That is the decision that triggered the present proceedings.
6. Thus, there is no dispute that the applicants have been financially dependent at all material times on Ms De Brito (indeed, the evidence of dependency was not subject to challenge by the Home Office Presenting Officer before the First-tier Tribunal). That dependency existed in Nigeria before they came to the United Kingdom and continued after they came here. It will be noted, however, that the applicants came here between 12 and 21 months before the date of their applications under regulation 8 (and between 8 and 17 months before Ms De Brito joined them here). That fact lies at the heart of the issue on the appeal: the Secretary of State contends that it prevents the applicants from meeting the conditions of regulation 8.
7. In order to explain the issue it is necessary first to set out the relevant legislative provisions and to summarise the relevant cases.

The legislative framework

Directive 2004/38/EC

8. Directive 2004/38/EC ("the 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 EU 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; and (c) the limits placed on the rights in (a) and (b) on grounds of public policy, public security or public health: see article 1.
9. Article 2 contains the following definitions:

"2(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 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."

10. Article 3 provides:

"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 …;

…

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."

11. Thus, by article 3(1) the substantive provisions of the Directive apply only to Union citizens and to family members falling within article 2(2); but by article 3(2) there are separate obligations on the host Member State in respect of "other family members" who meet the stated conditions. Those obligations are further explained in recital (6) to the Directive:

"(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."

12. The applicants in this case do not fall within article 3(1). They are "other family members" within article 3(2), but the Secretary of State contends that they do not meet the stated conditions. The expression "other family members" is abbreviated in some of the cases to "OFMs".

The EEA Regulations

13. The EEA Regulations implement the Directive (as subsequently extended, in a manner irrelevant for present purposes, to the European Economic Area).
14. Regulation 7(1) defines "family member" in a manner corresponding to article 2(2) of the Directive, and various regulations give effect to the substantive provisions of the Directive in respect of EU citizens and their family members as so defined.
15. The equivalent of article 3(2) of the Directive is regulation 8, which uses the terminology of "extended family member" rather than "other family member". At the material time it read, so far as relevant:

"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 [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."

I have placed square brackets around the words "in which the EEA national also resides" in paragraph (2)(a) because, although they were included in the text of the regulation at the material time, they had been held not to be a lawful condition and they have since been removed by amending regulations. I will come back to this when examining the case-law.

16. Regulation 17(4) and (5) give effect to the obligations imposed on the host Member State in respect of other family members who meet the conditions in article 3(2) of the Directive. They read:

"17(4) The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) 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 or an EEA national with a permanent right of residence under regulation 15; and

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

(5) Where the Secretary of State receives an application under paragraph (4) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security."

The case-law

KG (Sri Lanka)

17. In KG (Sri Lanka) and AK (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 13, the appellant KG came to the United Kingdom from Sri Lanka, made an unsuccessful claim for asylum but remained in this country for some years without leave and then applied for a residence card on the basis of regulation 8, as a family member of an EU citizen who had gone from Sri Lanka to Germany, had made a successful claim to asylum and acquired German citizenship, and had then come to the United Kingdom in the exercise of his rights as an EU citizen, entering the United Kingdom over 5 years after KG. The appellant AK was in a factually similar position, advancing a claim by reference to a relative who had gone from Sri Lanka to France and had acquired French citizenship before entering the United Kingdom.
18. The argument in the Court of Appeal proceeded on the basis that the appellants, having come directly from Sri Lanka, could not meet the condition in regulation 8(2)(a), as it then was, that they had been residing in an EEA state in which the relevant EEA national also resided. The appellants contended that this was not a correct transposition of article 3(2) of the Directive. The contention was rejected by the court. Buxton LJ, giving the leading judgment, carried out a detailed analysis of the authorities but at the centre of his reasoning on the issue was this:

"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."

19. Buxton LJ went on to hold that even if that construction of article 3(2) of the Directive was wrong, the appeal would nevertheless fail for other reasons. First, picking up a point made in [65], he said that, although the requirement that the relatives should be "accompanying or joining" the Union citizen was only specifically stated in the Directive in relation to article 2 relatives, the same assumption applied in the case of other family members under article 3(2); and the fact that the appellants had arrived in the United Kingdom many years before the movement to this country of the EU citizen on whom their claims were based was fatal to their claims:

"74. … 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."

20. A related point concerned the time of the requisite dependency or living in the same household:

"79. Article 3(2) 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 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. 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 AK lived in the Union citizen's household until 1992."

Metock

21. Case C-127/08, Metock and others v Minister for Justice, Equality and Law Reform [2009] QB 318, was a reference to the European Court of Justice concerning four nationals of third countries each of whom came to Ireland from the third country, made an unsuccessful application for asylum, married in Ireland an EU citizen living in Ireland pursuant to rights conferred by the Directive, and then applied for a residence card as the spouse of the EU citizen. The applications were refused in three of the cases on the ground that rights of residence in Ireland were not available to family members who inter alia had not been lawfully resident in another Member State before coming to Ireland. The issues directly concerned family members within article 2(2) of the Directive, not other family members seeking to rely on article 3(2).
22. The first question considered by the Court of Justice was whether the Directive precluded national legislation which required the spouse of the EU citizen to have been lawfully resident previously in another Member State before arriving in the host Member State in order to benefit from the provisions of the Directive. The court held:

"54. … Directive 2004/38/EC must be interpreted as applying to all nationals of non-member countries who are family members of a Union citizen within the meaning of article 2(2) of that Directive and accompany or join the Union citizen in a member state other than that of which he is a national, 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."

23. That conclusion, although relating directly to family members within article 2(2), had obvious implications for the decision in KG (Sri Lanka) in so far as it held that other family members had to have resided lawfully in another Member in order to come within article 3(2).
24. The second question considered by the court in Metock was whether the spouse of an EU citizen could be said to accompany or join that citizen within the meaning of article 3(1) of the Directive, and consequently benefit from the provisions of the Directive, irrespective of when and where the marriage took place and of the circumstances in which he entered the host Member State. The court held that the purpose of the Directive, which aims to facilitate the exercise of the fundamental right of residence of EU citizens in a Member State other than that of which they are a national, required a broad interpretation: the refusal of the host Member State to authorise family members of the EU citizen to join him there would discourage him from continuing to reside there and encourage him to leave in order to be able to lead a family life in another Member State or in a third country. Thus:

"93. … in the light of the necessity of not interpreting the provisions of Directive 2004/38/EC restrictively and not depriving them of their effectiveness, the words 'family members [of Union citizens] who accompany … them' in article 3(1) of that Directive must be interpreted as referring both to the family members of a Union citizen who entered the host member state with him and to those who reside with him in that member state, without it being necessary, in the latter case, to distinguish according to whether the nationals of non-member countries entered that member state before or after the Union citizen or before or after becoming his family members."

25. The extent to which that reasoning, expressed in relation to family members within article 2(2), can be applied across to other family members seeking to rely on article 3(2) is an element in the argument before us.

Bigia

26. In Bigia v Entry Clearance Officer [2009] EWCA Civ 79 the Court of Appeal had to consider the impact of Metock on the decision in KG (Sri Lanka) by which the court was otherwise bound. There was no dispute that what Buxton LJ had said about the need for prior lawful residence in another Member State could no longer be supported. Maurice Kay LJ, with whose judgment the other members of the court agreed, stated:

"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, art.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 art.2(2) 'family members', there is no need for prior lawful residence in another Member State, must also apply to OFMs. … It follows that the provisions in regs 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 art.2(2) family members in Metock is inapplicable in relation to OFMs."

27. Maurice Kay LJ went on to consider whether three further propositions from KG (Sri Lanka) had been undermined by Metock. They included propositions drawn from KG (Sri Lanka) at [65] and [79], quoted above, that the relevant 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", and that "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". It was held that Metock did not impact on those propositions:

"43. … I accept that art.3(2)(a) is based on the same policy considerations as art.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 art.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 [for the Secretary of State] 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 art.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 at [92]). Accordingly, I conclude that these aspects of art.3(2)(a) are not affected by Metock and that, in these respects, KG remains good law."

Rahman

28. The most recent in this series of cases is the decision of the Grand Chamber of the Court of Justice of the European Union in Case C-83/11, Secretary of State for the Home Department v Rahman [2012] 3 CMLR 55, on a reference from the Upper Tribunal (Immigration and Asylum Chamber). The facts were that R, a male Bangladeshi national, married an Irish national working in the United Kingdom; three of R's relatives then obtained EEA family permits pursuant to article 3(2) of the Directive to enable them to join R's wife, the relevant EU citizen, in the United Kingdom; after their arrival in the United Kingdom they applied for residence cards to confirm their right of residence, but their applications were refused because they had not shown that they had resided with R's wife in the same Member State before she came to the United Kingdom or that they continued to be dependent on her or were members of her household in the United Kingdom.
29. The first two questions for the Court of Justice concerned the nature of the host Member State's obligations under article 3(2). As to that, the court held that the provision does not oblige Member States to accord a right of entry and residence to family members falling within it, but:

"21. … the fact remains, as is clear from the use of the words 'shall facilitate' in art.3(2), that the provision imposes an obligation on the Member States to confer a certain advantage, compared with applications for entry and residence of other nationals of third States, on applications submitted by persons who have a relationship of particular dependence with a Union citizen.

22. In order to meet that obligation, the Member States must, in accordance with the second subparagraph of art.3(2) of Directive 2004/38, make it possible for persons envisaged in the first subparagraph of art.3(2) to obtain a decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons.

23. As is clear from recital 6 in the preamble to Directive 2004/38, it is incumbent upon the competent authority, when undertaking that examination of the applicant's personal circumstances, to take account of the various factors that may be relevant in the particular case, such as the extent of economic or physical dependence and the degree of relationship between the family member and the Union citizen whom he wishes to accompany or join.

24. In the light both of the absence of more specific rules in Directive 2004/38 and of the use of the words 'in accordance with its national legislation' in art.3(2) of the directive, each Member State has a wide discretion as regards the selection of the factors to be taken into account. Nonetheless, the host Member State must ensure that its legislation contains criteria which are consistent with the normal meaning of 'facilitate' and of the words relating to dependence used in art.3(2), and which do not deprive that provision of its effectiveness."

30. The third and fourth questions asked in essence whether, in order to fall within the article 3(2) category of family members who were dependants of an EU citizen, "it was necessary to have resided in the same State as that citizen and to have been a dependant of that citizen shortly before or at the time when the latter settled in the host Member State" (see [27]). The court found that it was not necessary to have resided in the same state as the EU citizen:

"28. … the wording of Directive 2004/38 does not support the conclusion that family members of a Union citizen who do not fall under the definition in art.2(2) of that directive and who have duly demonstrated their situation of dependence on that citizen can be excluded from the scope of art.3(2) of the directive solely because they have not resided in the same State as that citizen.

…

31. As the [Advocate General] has explained …, there is nothing to indicate that the term 'country from which they have come' or 'country from which they are arriving' ('pays de provenance') used in those provisions must be understood as referring to the country in which the Union citizen resided before settling in the host Member State. On the contrary, it is clear, on reading those provisions together, that the country referred to is, in the case of a national of a third State who declares that he is a 'dependant' of a Union citizen, the State in which he was resident on the date when he applied to accompany or join the Union citizen."

31. So far as concerned the time at which the applicant was required to be in a situation of dependence in order to meet the conditions of article 3(2), the court reasoned as follows:

"32. … it is to be noted that, as follows from recital 6 in the directive's preamble, the objective of [article 3(2)] is to 'maintain the unity of the family in a broader sense' by facilitating entry and residence for persons who are not included in the definition of family members of a Union citizen contained in art.2(2) of Directive 2004/38 but who nevertheless maintain close and stable family ties with a Union citizen on account of specific factual circumstances, such as economic dependence, being a member of the household or serious health grounds.

33. It is clear that such ties may exist without the family member of the Union citizen having resided in the same State as that citizen or having been a dependant of that citizen shortly before or at the time when the latter settled in the host State. On the other hand, the situation of dependence must exist, in the country from which the family member concerned comes, at the time when he applies to join the Union citizen on whom he is dependent.

34. In the main proceedings, it is for the national tribunal to establish, on the basis of the guidance as to interpretation provided above, whether the respondents in the main proceedings were dependants of the Union citizen … in the country from which they have come … at the time when they applied to join her in the United Kingdom. It is only if they can prove that dependence in the country from which they have come … that the host Member State will have to facilitate their entry and residence in accordance with art.3(2) ….

35. In the light of the foregoing, the answer to the third and fourth question referred is that, in order to fall within the category, referred to in art.3(2) of Directive 2004/38, of family members who are 'dependants' of a Union citizen, the situation of dependence must exist in the country from which the family member concerned comes, at the very least at the time when he applies to join the Union citizen on whom he is dependent."

The decision of the Upper Tribunal

32. The Upper Tribunal's decision preceded the judgment in Rahman but considered the effect of KG (Sri Lanka), Metock and Bigia. The tribunal gave particular consideration to two questions: (1) whether there was a requirement of "accompanying or joining", so as to preclude a person from qualifying as an extended family member if he or she arrived in the United Kingdom before the EU national, and (2) whether a person who had been present illegally in the United Kingdom was precluded from qualifying as an extended family member. It answered both questions in favour of the applicants. I need refer to the tribunal's reasons only in respect of the first question.
33. The tribunal said that the instant case was concerned with regulation 8(2)(c), which requires that the person "has joined" the EEA national in the United Kingdom. The argument advanced by Ms Targett-Parker for the applicants was that "has joined" should be construed in the same way as the Court of Justice had construed very similar words in Metock, so as to encompass both persons who had physically joined an EEA sponsor already in the United Kingdom and persons who came to the United Kingdom before the sponsor. The argument put forward on behalf of the Secretary of State by the Home Office Presenting Officer, on the other hand, was based in substance on the decision in KG (Sri Lanka), to the effect that extended family members had to accompany the EEA sponsor or join a sponsor who was already in the United Kingdom.
34. The tribunal said this about the applicants' construction (at [19]):

"In favour of the construction urged by Ms Targett-Parker are a number of arguments. One is that on the reasoning applied by the ECJ in Metock – and seemingly endorsed in respect of OFMs by the Court of Appeal in Bigia – it seems possible to identify at least a sub-class of OFMs for whom a requirement of joining the Union citizen (construed again so as to prevent the OFM's prior arrival) would have a deterrent effect on the exercise of that citizen's right of free movement. We discussed with the parties the hypothetical example of a Union citizen who would be deterred from taking up an employment contract in a host Member State starting in the winter unless he could arrange for dependent members of his household to start school in the host Member State at the beginning of the preceding Autumn term. Equally it is possible to construct hypothetical examples in which the need for prior arrival in the host Member State of an OFM would have no impact at all on the exercise by the Union citizen of free movement rights …."

35. Having considered further reasons in favour of the construction, and arguments in favour of the opposite construction (including the fact that an "accompanying or joining" requirement was applied in KG (Sri Lanka) and appeared to have been upheld in Bigia after consideration of Metock), the tribunal concluded (at [22]):

"We consider that the respective merits of the arguments favour Ms Targett-Parker's position. We must apply a teleological approach that seeks to give effect to the purposes of the Directive which the 2006 Regulations purport to transpose. Those purposes include the elimination of obstacles to the exercise of free movement rights by Union citizens/EEA nationals. Even if it is only a sub-class of OFMs whose EEA sponsor's freedom of movement rights would be obstructed by a requirement that they arrive in the host Member State before the OFM, that is surely sufficient to show that there can be no blanket requirement to the contrary. And in the absence of any more qualified requirement, it would be otiose for us to seek to impose restrictions that do not appear in the ordinary language of the Regulations. The requirement to join says nothing about when that joining has to take place. Accordingly the requirement to 'join' an EEA sponsor as set out in regulation 8(2)(b) must be read as encompassing both OFMs/extended family members who have arrived before and OFMs/extended family members who have arrived after the EEA sponsor."

36. Having found that the applicants met the requirements of regulation 8, the tribunal went on to note that their appeals were in fact against the refusal of a residence card under regulation 17(4). It observed that under regulation 17(4) the Secretary of State had a discretion, the exercise of which required not only the obligation to consider all the circumstances but also the requirement under regulation to undertake an extensive examination of an applicant's personal circumstances and, if the application was refused, to give reasons justifying the refusal. But the Secretary of State had not yet exercised the regulation 17(4) discretion or carried out the regulation 17(5) examination. Accordingly, the tribunal allowed the appeals only to the extent of their finding that regulation 8 was satisfied, leaving it to the Secretary of State to decide whether to exercise the regulation 17(4) discretion in the applicants' favour. The tribunal did, however, make some observations at [33] about matters relevant to the exercise of the discretion:

"Whilst it is not for us in the first instance to exercise that discretion or undertake the personal examination enjoined by regulations 17(4) and (5), we would observe that it seems to us that these provisions are the principal mechanism the 2006 EEA Regulations afford for taking into account the weight to be attached to the fact that the applicants are in the UK lawfully or unlawfully. For the three appellants the evidence they have presented so far does not obviously establish that there is any reason apart from their lack of lawful status why they cannot support themselves. None have health problems. None is a minor or someone who is still a young person wishing to complete their education. They are in their early 40s. They came to the UK illegally (or in the case of the first appellant have remained unlawfully). They cannot have come with any legitimate expectation that they would be entitled to stay. In Article 8 ECHR terms it is not immediately obvious that, despite ongoing financial dependency on the sponsor, there is family life between them or, even if there is, that it is of any great strength. They have not been in the UK for any significant period, nor is there any evidence, as Ms Targett-Parker conceded, to show that the presence of the three appellants in the UK has been or is essential to their EEA sponsor's exercise of free movement rights. Indeed, even when the sponsor had gone back to Nigeria between 2004-2007 she continued to return to the Netherlands on many occasions. The presence of the appellants in her household in Nigeria did not prevent her doing that and it may be very difficult for them to show that their continued presence here would prevent her exercising Treaty rights in the UK. In such circumstances it may be that the respondent will consider that their lack of lawful presence constitutes a weighty factor counting against the issue of a residence card."

The issues in the appeal

37. Permission to appeal to this court was granted on the basis that it was arguable that the Upper Tribunal's approach to interpretation of the "accompanying or joining" requirement was wrong.
38. The case advanced before us by Mr Collins on behalf of the Secretary of State, however, departs from the basis on which permission was granted and focuses instead on the effect of Rahman. It relies in particular on the statement in Rahman that to come within article 3(2) of the Directive "the situation of dependence must exist, in the country from which the family member concerned comes, at the time when he applied to join the Union citizen on whom he is dependent" (para 33) and on similar statements elsewhere in that judgment. It is submitted that the applicants cannot fulfil the requirement as to dependence in the country from which they came (Nigeria) at the time of the application, since they came to the United Kingdom between 12 and 21 months before the EU citizen on whom they are dependent, let alone before their applications. It is accepted that the statements in Rahman are not to be taken as precluding qualification by a relative who arrives in the host country shortly before the relevant EU citizen arrives there, but it is submitted that there must be a broad element of contemporaneity and that anything other than recent arrival will not qualify. This is linked to the purpose of the provisions, namely to prevent obstacles to the exercise of rights of free movement and residence by EU citizens. It is submitted that the exercise of those rights cannot be affected where the relative and the EU citizen are moving country independently of each other and the relative has arrived in the host country many months before the EU citizen.
39. I have said that that case departs from the basis on which permission to appeal was granted. The Secretary of State has in fact made an express concession before us that the "accompanying or joining" requirement is to be read in the light of Metock and does not therefore prescribe any particular time of arrival by the relative in the host Member State. The point is expressed as follows in para 34 of Mr Collins's revised skeleton argument:

"For the avoidance of doubt, it is accepted that the words 'accompanying' and 'join' in regulation 8(2)(b) bear the same interpretation as given by the ECJ in Metock. Those words do not of themselves require the Union citizen to arrive before or at the time same time as the dependent who is seeking entry or residence. Where dependants arrive many months before the Union citizen, they will fall outside the provisions of regulation 8 for the reasons identified above. They cannot meet the requirements identified in Rahman."

Mr Collins confirmed that concession after taking specific instructions for the purpose.

40. For the applicants, Ms Targett-Palmer submits that there is no requirement of broadly contemporaneous or recent arrival in the United Kingdom, and in particular that what was said in Rahman is to be read in the light of the facts of that case and is not to be taken as laying down a requirement of the kind contended for by the Secretary of State. The reasoning in Metock about family members applies equally to other family members within article 3(2) of the Directive and therefore to extended family members within regulation 8 of the EEA Regulations. It does not matter when the family members arrived in the host Member State or whether they entered it unlawfully or have been present there unlawfully. What matters for the purposes of article 3(2) and regulation 8 is that there was dependency in the country from which they came and there is continuing dependency at the date of the application. On the facts of this case the Upper Tribunal was correct to find that the conditions of regulation 8 were satisfied by the applicants.

Discussion and conclusion

41. Despite the somewhat elaborate background to the appeal, the point of contention is a very short one.
42. I think it best to start with the wording of regulation 8. By the end of the argument before us it was common ground that the directly relevant condition is that contained in paragraph (c) of regulation 8(2), namely that "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". It is necessary to examine each of those elements in turn.
43. The first element is that the person "satisfied" the condition in paragraph (a). That is in the past tense: the question is whether the condition in paragraph (a) was satisfied at an earlier point in time. Paragraph (a) requires that "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". There can be no doubt, on the findings made, that the applicants satisfied that condition: they lived in Nigeria and, at the time when they lived there, were dependent on the sponsor (and indeed were also members of her household).
44. The second element is that the person "has joined" the EEA national (specifically in this case the EU citizen) in the United Kingdom. The concession made by the Secretary of State in relation to the meaning of "join" in regulation 8(2)(b) is equally applicable to "has joined" in regulation 8(2)(c). It involves an acceptance that the expression "has joined" does not of itself impose a temporal limitation: it does not matter whether it is the relative or the EU citizen who arrives first in the United Kingdom, and one cannot glean from the expression any requirement as to contemporaneity or recent arrival. The argument that such a requirement is to be derived from Rahman is a matter to which I will return. Subject to that argument, it is clear that each of the applicants "has joined" the sponsor in the United Kingdom, even though each of them arrived here before the sponsor.
45. The third element is that the person "continues to be dependent upon [the EEA national] or to be a member of his household". The applicants plainly meet that requirement: on the findings of fact, there was no break at any time in their dependency on the sponsor.
46. On the face of it, therefore, the applicants satisfy the condition in paragraph (c) of regulation 8(2). The only point raised against that conclusion is the argument by Mr Collins that a requirement of broadly contemporaneous or recent arrival is to be read into the condition on the basis of Rahman. That argument, however, is not one that I would accept.
47. It is necessary to recall the questions that the court was answering in Rahman and the factual framework within which those questions arose. The relatives were living in Bangladesh at the time of their applications to join the EU citizen in the United Kingdom. Their applications were refused because it had not been shown that they had resided with that citizen in the same Member State before she came to the United Kingdom or that they continued to be dependent on her or were members of her household in the United Kingdom. The third and fourth questions (the answers to which are the basis for Mr Collins's argument) asked whether "it was necessary to have resided in the same State as [the EU citizen] and to have been a dependant of that citizen shortly before or at the time when the latter settled in the host Member State". The court held that the requirement of dependency in "the country from which they have come" did not refer to the country in which the EU citizen resided before settling in the host Member State, but to the country from which the family member came. When the court said that the situation of dependence must exist in that country "at the time when he applies to join the Union citizen on whom he is dependent", it was adopting a formulation appropriate to the particular circumstances of the case (where the applications were made by persons outside the host Member State) rather than laying down a principle of universal applicability. The court cannot have intended to exclude from the scope of article 3(2) persons who had arrived in the host Member State before the EU citizen and before making their applications: that would have been contrary to the approach in Metock.
48. Thus, whilst Rahman establishes the need for a situation of dependence in the country from which the applicant comes, and a situation of dependence at the date of the application, it is not to be read as laying down a requirement that the dependency at the date of the application must be dependency in the country from which the applicant comes, such that a relative who has been dependent throughout cannot qualify if he arrives in the host Member State many months before the EU citizen and the making of the application.
49. Nor do I accept Mr Collins's submission that the exercise of EU rights of free movement and residence is incapable of being adversely affected by the position of dependent relatives who arrive in the host Member State many months before the EU citizen. The Upper Tribunal gave an example of a case where a EU citizen might be deterred from taking up employment in another Member State unless he could arrange for dependent relatives to arrive there well in advance (see [34] above). It plainly cannot be said that there would be an adverse effect in all cases or indeed in many cases; but equally plainly it cannot be said that there would never be an adverse effect. The possibility of an adverse effect is sufficient when one is considering whether a particular interpretation of the threshold condition in article 3(2) accords with the underlying policy of the Directive. If the threshold condition is met, the detailed circumstances of the particular case, including the importance or otherwise, for the EU citizen, of the dependent relative's presence in the host Member State, can be taken into account in the individual assessment and decision that follow.
50. Even if the interpretation of Rahman and article 3(2) put forward by Mr Collins were to be accepted, I would hesitate about reading a requirement of broadly contemporaneous or recent arrival into regulation 8. Article 3(2) defines the class of other family members whose entry and residence must be facilitated; it does not prevent a Member State from facilitating the entry and residence of other family members outside that class. Article 37 of the Directive provides in terms that the provisions of the Directive "shall not affect any laws, regulations or administrative provisions laid down by a Member State which would be more favourable to the persons covered by this Directive". It would therefore be compatible with the Directive to read regulation 8 in a way that was more favourable than article 3(2) to other family members, and the more restrictive reading could not be said to be necessary in order to achieve compatibility. As it is, however, I do not need to base my decision on that alternative analysis.
51. Accordingly, I am satisfied that the applicants all come within regulation 8, in particular regulation 8(2)(c), on its correct interpretation and that the Upper Tribunal was correct to rule as it did, albeit some of its reasons would have been expressed differently if the judgment in Rahman had been available to it.
52. It should be emphasised that a finding that an applicant comes within regulation 8 does not confer on him any substantive right to residence in the United Kingdom. Whether to grant a residence card is a matter for decision by the Secretary of State in the exercise of a broad discretion under regulation 17(4), subject to the procedural requirements in regulation 17(5). All this is underlined by the observations of the court in Rahman as to the nature of the host Member State's obligations under article 3(2) of the Directive (see [29] above). In the present case, as the Upper Tribunal noted, the Secretary of State has yet to consider the applicants' cases pursuant to regulation 17(4) and (5). When she does so, she will have to decide whether in all the circumstances it appears appropriate to issue a residence card. Those circumstances will no doubt include the extent of the applicants' financial and emotional dependency on the sponsor (though the First-tier Tribunal's limited findings of fact in respect of financial dependency will be binding), the fact that the applicants were unlawfully in the United Kingdom for a substantial period of time before they made their applications, and any evidence as to the importance of the applicants' residence in the United Kingdom for the exercise of the sponsor's rights of free movement and residence. I have set out at [37] above the observations made by the Upper Tribunal on some of those matters.
53. For the reasons given, I would dismiss the appeal.

Lord Justice Davis :
 


54. I agree that this appeal should be dismissed for the reasons given by Richards LJ. As he points out (and as the Upper Tribunal also pointed out), this outcome relates only to whether the applicants should be considered for the grant of a residence card. It remains to be decided whether they should actually be granted a residence card.
55. The Upper Tribunal's decision on this aspect of the case was based on a consideration of the "accompanying and joining" argument which the tribunal stated in terms it had not found easy to resolve. (It will, of course, be recalled that the phrase "who accompany or join them" is used in Article 3(1) of the Directive relating to family members. But such phrase does not appear in Article 3(2) of the Directive relating to member states' obligations of facilitation, in accordance with their own national legislation, relating to other family members). The Upper Tribunal granted permission to appeal on the footing that the matter appeared to raise important points of principle. Yet these points were not, in the event, debated before us. The concession made on behalf of the Secretary of State as noted in paragraph 39 of the judgment of Richards LJ was maintained, and the debate before us thus focused on the effect of Rahman. There is room for argument (and having regard also to domestic authorities such as KG and Bigia) as to whether the reasoning contained in Metock does have the same or corresponding impact on member states' facilitation obligations, under their national law, with regard to other family members within Article 3(2) of the Directive as it does with regard to their obligations to family members within Article 3(1) of the Directive: and hence whether it has the like impact on Regulation 8, which relates solely to extended family members. To me, the point did not appear, prima facie, to be straightforward: any more than it did to the Upper Tribunal. I would wish to reserve my opinion as to whether or not the concession was rightly made.

Lord Justice Pill :

56. I agree that, for the reasons given by Richards LJ, the appeal should be dismissed.