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)
UPPER TRIBUNAL JUDGE McKEE
IA/26870/2011

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/05/2013

Lord Justice Davis :

Introduction

1. This appeal raises a point of interpretation of Regulation 8(2)(c) of the Immigration (European Economic Area) Regulations 2006 ("the Regulations"). The essential issue is whether it is capable of applying to the dependants of a spouse who is not an EEA national but who is married to someone who is an EEA national.
2. The appellant was granted leave to appeal by Maurice Kay LJ on 14 December 2012. The appellant, then as now, was represented by a firm of solicitors. A representative of that firm, who had appeared in the tribunal proceedings below but who has no higher court rights of audience, attended before us at the appeal hearing and asked that his previously provided written submissions stand as the appellant's argument: a request to which this court of course readily acceded. He also then applied for an adjournment with a view to obtaining Legal Aid so that counsel might be instructed. Bearing in mind that detailed written submissions had already been lodged on behalf of the appellant, that there had been over four months from the grant of permission and that the appeal had been set down for hearing for a considerable time, this court refused the application. It should, however, be recorded that counsel for the respondent Secretary of State, Mr Sarabjit Singh, was conspicuously fair in his submissions to the court; and he drew attention in his argument to points potentially available to the appellant, as outlined in the appellant's written submissions.

Factual background

3. The background facts were not in dispute for the purposes of this appeal and can be shortly summarised.
4. The appellant, Ronivon Junior Soares, was born in Brazil on 19 March 1993 and is a citizen of Brazil. He has an aunt (his mother's sister), Anair Osmerio de Oliviera, also a citizen of Brazil. In 2006 his aunt married Luis Figuccio in Brazil. Mr Figuccio holds dual Brazilian and Italian nationality. It appears that by this time he had set up a business in the United Kingdom. In due course he came to reside in the United Kingdom, which, as a Union citizen, he was entitled to do. His wife followed him in due course in June 2008, accompanied by the appellant (then 15 years old) and another child. Mrs de Oliviera Figuccio in due course was issued with a residence card as the spouse of an EEA national. In the meantime, however, the appellant (and the other child) had returned to Brazil. The appellant then returned to the United Kingdom in 2009, being granted leave to enter as a visitor. He overstayed. In due course on 11 August 2011 application for a residence card was made on his behalf; but that was refused by the Secretary of State on 2 September 2011. It was that refusal which has generated the appeal proceedings.
5. It was in due course established that in Brazil the appellant had been part of a household comprising himself, his mother and his aunt (Mrs de Oliviera Figuccio). It was the aunt who was the breadwinner and who, in financial terms, supported the family unit in Brazil. It was accepted that the appellant had been a member of that household and dependent on his aunt in Brazil.
6. A factual feature of this particular case is that, on the marriage, Mr Figuccio did not live in Brazil with his wife or join this particular household. When in Brazil, as was found by the tribunal, he lived on Porto Alegre, in the state of Rio Grande do Sul, while the house the appellant shared with his mother and aunt was in Goiania, in the state of Goias, a very great distance away from Porto Alegre. It was conceded that in Brazil the appellant was not part of Mr Figuccio's household. It was, however, argued that the appellant had, in Brazil, been dependent on Mr Figuccio; but that was rejected on the evidence. It was, nevertheless, accepted by the tribunal that the appellant had been dependent, in Brazil, on his aunt (Mrs de Oliviera Figuccio) and she had continued to make remittances of money for him and his mother after she came to the United Kingdom.
7. Since returning to the United Kingdom the appellant has throughout resided at the house of Mr and Mrs Figuccio in Hornsey, north London. He has recently married; he and his wife continue to reside there with Mr and Mrs Figuccio. For the purposes of this appeal, Mr Singh accepted that the appellant was a member of Mr Figuccio's household at the date of his application for a residence card (11 August 2011).

The legal framework

8. The Regulations were made in consequence of Directive 2004/38/EC ("the Citizens' Directive"). The Citizens' Directive had itself replaced various directives, including Directive 73/148/EEC; and it is convenient, in view of the argument advanced, to set out some of the provisions of both those Directives.
9. Directive 73/148/EEC was concerned, amongst other things, with the abolition of restrictions on movement and residence within the community for nationals of member states. By Article 1 restrictions on movement and residence were abolished with regard to certain specified categories of persons. By Article 1(d) these included:

"(d) the relatives in the ascending and descending lines of such nationals and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality."

Article 1.2 then went on to provide as follows:

"2. Member states shall favour the admission of any other member of the family of a national referred to in paragraph 1(a) or (b) or of the spouse of that national, which member is dependent on that national or spouse of that national or who in the country of origin was living under the same roof."

10. Pausing there, those provisions by Article 1(d) extend such abolition in favour of relatives of the specified kind of such nationals and of the spouse of such nationals, if dependent on them, regardless of nationality. Further Article 1.2 provides in terms that admission is to be favoured for other family members dependent on the national or on the spouse of that national.
11. The Citizens' Directive is in different terms, however. In the relevant respects, the underlying purpose of the Citizens' Directive is encapsulated in recitals (5) and (6):

"(5) The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of 'family member' should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(6) In order to maintain the unity of the family in a broader sense 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. Article 2(2) of the Citizens' Directive defines "family member" as follows:

"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 and in accordance with the conditions laid down in the relevant legislation of the host Member State;

(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)."

13. Article 3 is in the following terms:

"Article 3

Beneficiaries

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 member 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."

14. In the light of that wording, two particular points may be noted at this stage. First, by Article 3.2 of the Citizens' Directive it is for the host member state to achieve facilitation of entry and residence of the specified categories of persons in accordance with its own national legislation. Second, the definition of "family member" in Article 2.2 expressly extends to the specified relatives and dependants not only of the Union citizen but also of the Union citizen's spouse or partner. But, when dealing with "other family members" in Article 3.2 there is no corresponding mention of the Union citizen's spouse or partner. The indicated requirement in the respects relevant for present purposes is that they be "dependants or members of the household of the Union citizen".
15. This, therefore, on the face of it, represents a departure from the approach indicated in Article 1(d) and 1.2 of Directive 73/148/EEC. We asked Mr Singh if there were available any working papers or other materials casting light on the reason for this ostensible change. He had anticipated that such a question might be raised by the court and had, before the hearing, asked those instructing him to make enquiries. It appears, from what he told us, that the enquiries thus far made indicate that there was no clear statement on this: although the indications are that there was a lot of "horse trading" going on in the relevant debates at the time. He also reminded us that the Citizens' Directive was made at a time of the accession of a significant number of states to the Union.
16. The Regulations were made in the light of the Citizens' Directive. For present purposes, the relevant Regulations are Regulations 7 and 8. They provide in the relevant respects as follows:

"7.— Family Member

(1) Subject to paragraph (2), for the purposes of these Regulations the following persons shall be treated as the family members of another person—

(a) his spouse or his civil partner;

(b) direct descendants of his, his spouse or his civil partner who are—

(i) under 21; or

(ii) dependants of his, his spouse or his civil partner;

(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;

(d) a person who is to be treated as the family member of that other person under paragraph (3).

…..

8.— Extended family memberThis section has no associated Explanatory Memorandum

(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 an EEA State in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;

(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or

(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household…."

"EEA national" is defined in the Regulations to mean a national of an EEA state. "Relevant EEA national" is given a wider meaning but that phrase does not appear in Regulation 8(2) and no reliance was placed on it before us. With regard to extended family members, it may be added, a discretion is conferred on the Secretary of State to issue a residence card (Regulation 17(4)). It is, I would also add, evident from the Regulations that "extended family members" are designed to correspond to what are styled "other family members" in the Citizens' Directive.

The proceedings below

17. By her decision letter of 2 September 2011, the Secretary of State refused the appellant's application for a residence card not as a matter of discretion but on the ground that he failed to meet the criteria set out in Regulation 8. It was accepted that Mr Figuccio was an EEA national exercising treaty rights in the United Kingdom. But the point was taken that the appellant had failed to establish that he had been residing with or been dependent on Mr Figuccio (the EEA national) prior to the appellant's arrival in the United Kingdom. (It was also suggested that he had not established that he had resided with or been dependent on Mr Figuccio after the appellant's arrival in the United Kingdom. But that was not a live point before us on this appeal.)
18. The First-tier Tribunal judge dismissed the appellant's appeal by determination promulgated on 2 November 2011. It was accepted that the appellant was part of the extended family of his aunt in Brazil; but it was held that he had not proved he was part of the household of or dependent on an EEA national whilst in the United Kingdom.
19. On appeal, for which permission was granted, the Upper Tribunal indicated in advance that, at the resumed hearing, the focus should be on whether the appellant had been dependent on Mr Figuccio, or a member of his household, before coming to the United Kingdom. The consequent evidence and argument was directed to that issue. By determination promulgated on 18 April 2012, the Upper Tribunal judge, as we have said, found as a fact that the appellant had neither been a member of the household of, nor had he been dependent on, Mr Figuccio (the EEA national) in Brazil, prior to coming to the United Kingdom. In such circumstances, having regard to the provisions of Regulation 8(2) and applying the reasoning of a previous tribunal decision in Dauhoo [2012] UKUT 79 (IAC), he dismissed the appeal.
20. As previously indicated, the appellant now appeals by permission granted by Maurice Kay LJ.

Discussion and disposal

21. In my view, the Upper Tribunal judge was right in his conclusion.
22. Regulation 8(2)(a) is specific in requiring that a person is residing in a country other than the United Kingdom and is (emphasis added) dependent upon the EEA national or is (emphasis added) a member of his household. The requirements of paragraph (a) are then expressly incorporated into sub-paragraph (c). On the facts as found the appellant could not meet such a requirement. He was not, before coming to the United Kingdom, either dependent upon or a member of the household of Mr Figuccio. He was, it is true, both a dependant of and a member of the household of Mrs de Oliviera Figuccio: but she was not herself an EEA national.
23. The appellant's argument sought to say that Regulation 8(2) should be construed so as to extend not only to dependence on (or household membership of) an EEA national but also to dependence on (or household membership of) a spouse or partner of an EEA national. It was argued that such a reading would "maintain the unity of the family in a broader sense" (see recital (6) of the Citizens' Directive) and that was the underlying purpose of the Citizens' Directive which the Regulations were designed to implement.
24. I am not able to accept that argument.

i) First, the Citizens' Directive – having the objective set out in the recitals – had, in contrast to its approach to "family members", not included with regard to "other family members" the spouse or partner of the EEA national to whom the dependence or household membership could relate. The stipulated dependence or household membership was on or of "the Union citizen having the primary right of residence".

ii) Second, the Regulations follow that indicated approach. Regulation 8(2)(a) and (c) do not extend to dependence on or household membership of a spouse or partner of the EEA national. There was no obligation on the United Kingdom to extend the qualifying categories wider than required by the Citizens' Directive: which in this respect left the required facilitation to the host member states in accordance with its own national legislation. And the United Kingdom has, as I see it, chosen not to extend the facilitation further than was required by the Citizens' Directive in this regard.

25. The appellant sought to rely on the case of Jia v Migrationsverket (Case C-1/05) [2007] QB 545 and the statement in paragraph 35 of the judgment that:

"According to the case law of the Court of Justice the status of 'dependent' family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the community national who has exercised his right of free movement or by his spouse…"

But the reference to the spouse in that passage is to be explained by the fact that, in that case, the relevant issue was the meaning of "dependant" in Article 1(d) of Directive 73/148/EEC (indeed the claimant there was, consistently with that Article, claiming dependence both on her son, not an EEA national, and on her daughter-in-law, an EEA national). The case of Jia simply was not concerned with Article 3.2 of the Citizens' Directive, with its significantly different wording.

26. Nor does the case of SSHD v Rahman (Case C/83-11)[2013] QB 249 have any real bearing, in favour of the appellant, on the issue here arising. As the facts of that case as set out in the head-note show, the appellants in Rahman were seeking to rely on residence not with their relative R (not an EEA national) but with R's wife (who was an EEA national). The actual issues arising for decision in that case were also entirely different from the present case: and while it is true that a broad purposive approach was adopted that has no real bearing on the present issue. Indeed, Rahman confirms the need for dependence (or, as the case may be, household membership) in the country from which the applicant comes as well as dependence (or, as the case may be, household membership) at the date of the application. Likewise, the interpretation exercise adopted in Aladeselu v SSHD [2013] EWCA Civ 144 was on a point quite different from the present case: and the stated desirability in that case of avoiding a potentially adverse effect on a EEA national's freedom of movement as a potentially relevant consideration (see paragraph 49 of the judgment of Richards LJ) cannot be translated to the present case so as to defeat the express terms of Regulation 8(2): the meaning and effect of which is consistent with Article 3.2 of the Citizens' Directive.
27. Accordingly, I consider that the Upper Tribunal judge reached the correct conclusion in law, having regard to the facts as found.

Conclusion

28. For these reasons I would dismiss this appeal.

Lord Justice McFarlane

29. I agree.

Lord Justice Longmore

30. I also agree.