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)
(DEPUTY TRIBUNAL JUDGE MURRAY)

		Royal Courts of Justice Strand London, WC2A 2LL
		15th July 2014

1. LORD JUSTICE MAURICE KAY: One of the purposes of Directive 2004/38/EC ("the Citizenship Directive") is to ensure that citizens of the European Union are not unduly deterred from exercising their treaty rights as mobile workers by constraints upon their ability to be accompanied or joined in another member state by family members who are not nationals of any member state. Family members in the immediate sense, as defined in article 2.2 of the Citizenship Directive, who are not nationals of a member state are provided with rights of residence by articles 3.1 and 7.2. This case is concerned with a family member who does not fall within the definition of that term in article 2.2.
2. The appellant is a Nigerian citizen. Her sister, Gloria, has Austrian nationality but lives with her husband and children in London. For present purposes the appellant falls into the category of "other family member" ("OFM") of her sister. This is a more extended category which is accorded more limited rights by the Citizenship Directive. The crucial provision is article 3.2, which provides:

"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."

3. Thus, the obligation on the host member state is not without more to grant the OFM residence rights, it is simply to undertake an extensive examination of personal circumstances and to justify any denial of entry or residence.
4. The appellant, as the sister of an EU citizen exercising treaty rights in the United Kingdom, enjoys a more advantageous position than she would as simply a Nigerian citizen, provided that she satisfies the requirements of article 3.2. I should say that the Directive has been transposed into domestic law by the Immigration (European Economic Area) Regulations 2006. Its terms are not precisely the same as those of the Directive, but I shall follow the approach of counsel and refer from now on to "the Directive". Nothing turns on any textual difference.
5. A brief exposition of the facts will set the context.

The facts

6. The appellant was born in 1974. Originally she lived with her parents and two sisters in Benin City, Edo State, Nigeria. In 1996 her sister Gloria married and left Nigeria for Austria to join her husband. In 2000 Gloria and her husband became naturalised Austrian citizens. In 2001 they returned to Nigeria. They purchased a property at 19 Okuonghae Street, Benin City. They lived in that property until they relocated to the United Kingdom in 2003. It is the appellant's case that she also lived in the property from 2001 until she left Nigeria for the United Kingdom in January 2006. It was accepted by the Upper Tribunal that she did live there for at least part of that period, seemingly the latter part, after her sister had left.
7. From 2001 until at least 2003, and apparently until her departure for the United Kingdom, the appellant worked full-time as a teacher in Benin City. Her salary was approximately £50 per month. Her sister claims that she sent money to Nigeria regularly to pay for the appellant to study and after that sent money about three times a year.
8. The appellant arrived in the United Kingdom on 14th January 2006 as a visitor. It is said that the appellant delayed her move to this country until 2006 because her sister needed to secure employment, adequate accommodation and savings before she could sponsor the appellant. The sister applied for an EU registration certificate on 17th December 2004, which was granted some time in 2005. It was only after that point that the appellant joined her sister in the United Kingdom. Since her arrival here the appellant has lived with her sister, her husband and their two children in Mitcham. It is common ground that since her arrival in this country the appellant has been a member of her sister's household and dependent on her.
9. The original visa pursuant to which the appellant arrived in 2006 expired in May of that year, but she subsequently obtained a further visa which expired in November 2008. She made unsuccessful applications for a residence permit in August 2009 and May 2011. On 22nd November 2011 she was served with a notice of liability to removal from the United Kingdom. Three days later she again applied for a residence card, but that was refused on 21st November 2012. That precipitated an appeal to the First-tier Tribunal.

The decision of the First-tier Tribunal

10. The determination of the First-tier Tribunal includes these passages:

"19. ... I am satisfied that she did live in the house [in Benin] from 2003 ... and I am, equally, satisfied that the appellant has lived in her sister's home in the United Kingdom for all the time that she has been here. To that extent she was, I find, living in her sister's home in Nigeria and she had the advantage of living there rent-free but I cannot be satisfied that this situation amounted to her living in her sister's household as the evidence is quite clear that Gloria and her husband and children relocated to Austria and then to the United Kingdom and they maintained a house but not, I find, a household in Nigeria. They have sought to persuade me that the house in Nigeria was a second home for the couple but they have used it only twice in the nine years since they left Nigeria. Two four-week periods spent visiting that home in Nigeria does not, I find, suffice to show that this home was, in fact, their household from the time that they left Nigeria in 2003. Their household was with their children in Austria and the United Kingdom and they appear to have definitively left behind their life in Nigeria.

20. I am further satisfied that the appellant was not a dependant of the sister nor a part of the household by the evidence that she was in employment in Nigeria and, whilst not earning a significant sum, she was working full-time and the evidence indicates, I find, that she led a relatively independent life apart from being afforded occasional financial assistance by her sister ... the appellant still has to show that she was either dependent on her sister or that she was part of her sister's household in Nigeria and additionally that she is now dependent or a part of her sister's household. I am satisfied that the evidence shows that she is a member of her sister's household as the appellant and her sister have now placed themselves in a position where the appellant lives in the same home and is necessarily reliant on her sister. However, I am not satisfied that she has shown that there is either the past dependency that was required nor that the appellant was a part of her sister's household whilst she was in Nigeria. She was living rent-free in her sister's home but that is not the same as forming a part of the same household ..."

11. An alternative claim pursuant to section 8 of the ECHR was also rejected. That is no longer pursued.

The appeal to the Upper Tribunal

12. The appeal to the Upper Tribunal was based on the fact that the First-tier Tribunal had not dealt properly with a document in the form of a certificate from Oredo Local Government Council in Benin City. That document is dated 15th March 2012. It is headed "TO WHOM IT MAY CONCERN" and it bears the signature of the Secretary of the Oredo Local Government Council. It is also stamped with the stamp of that authority. The certificate states:

"We write to confirm that our official records show:

1. That Miss Ekinadoese Debora Onaghise was a member of Miss Gloria Onaghise's (also known as Mrs Gloria Okuonghae) household until 1996. That the said household is better known as No.5 Faith Crescent, Behind Ogbe Stadium, Benin City, Edo State, Nigeria;

2. That Mrs Gloria Okuonghae purchased a property (her own home) in 2001. That the said home is better known as No.19, Okuonghae Street, Benin City, Edo State, Nigeria. That Mr & Mrs Okuonghae, their two children, Miss Ekinadoese Debora Onaghise and Osasogie Onaghise formed a part of this said household continuously from the point of purchase until Mr & Mrs Okuonghae and their children relocated to the UK in 2003;

3. That members of the Okuonghae family unit continue to reside at the said property whenever they are in Nigeria and that Mr & Mrs Okuonghae and their three children returned and stayed at the said property in 2006 and 2009 respectively. That apart from these identified trips, Mr Okuonghae has returned to the said address on his own. That from the point of purchase, Miss Ekinadoese Debora Onaghise and her younger sister lived at the said address continuously until Miss Ekinadoese Onaghise's departure to the UK in 2006; and

4. That our records show that Miss Deborah Onaghise ceased to reside in the said address in January 2006; leaving behind her younger sister Osasogie Onaghise. The property remains owned by Mrs Okuonghae.

We trust that you find the above information useful."

13. The error of law on the part of the First-tier Tribunal had been a failure to deal properly with that certificate. At the hearing before the Upper Tribunal, and by consent, the Upper Tribunal did not receive any further oral evidence. Its conclusion about the Oredo certificate was that, whilst it complied with article 10.2(e) of the Directive, which requires presentation of "a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen", the certificate was not conclusive evidence of what it asserted, nor do it give rise to a rebuttable presumption. It was a necessary document in part of the procedural scheme, but it was not by itself sufficient to establish compliance with article 3.2.
14. The Upper Tribunal concluded:

"I accept that the appellant lived at the sponsor's house in Nigeria and I accept that she lives in her sponsor's house in the United Kingdom. The sponsor states that the house in Nigeria is her second home but she has only lived in it for 2 x 4 week periods since 2003. From 2001 until 2003 the appellant was in full time employment in Nigeria and led an independent life. I find that the appellant is a member of the sponsor's household in the United Kingdom and has been since 2006. I find however that she cannot meet the requirements set out in Regulation 8. The only evidence of her being part of her sister's household in Nigeria is the letter from Oredo Local Government Council and there is nothing to support this letter apart from the statements of the appellant and the sponsor, I do not believe that she was part of the sponsor's household in Nigeria from 2001 onwards. It is not clear how the Oredo Local Government Council obtained the information stated in the certificate. It is also clear that the sponsor's family holidayed in Nigeria on 2 occasions after 2003 but the family's household was in the United Kingdom. The sponsor came to the United Kingdom in 2003 and the appellant did not come until 2006. Reasons have been given for this which are acceptable but this is a break. The break is not only of one year and one month as suggested by the appellant's representative.

44. ... No regular sums were sent by the sponsor to the appellant. The appellant did not pay her sister rent and I have noted that but I find that the appellant cannot meet the requirements set out in Regulation 8."

This appeal

15. The appellant has permission to pursue three grounds of appeal to which I now turn.

1: The Oredo certificate

16. The case for the appellant is that the Oredo certificate, the authenticity of which has not been questioned, provided evidence that she was a member of her sister's household in Nigeria, that it gave rise to a rebuttal presumption to that effect and that the Secretary of State has not discharged the burden of rebutting it.
17. In my judgment, this ground of appeal is unsustainable for a number of reasons. First, it cannot be said that simply by reason of the production of such a document an applicant has proved or that it should be presumed that the requirements of article 3.2(a) have been satisfied. That would be tantamount to outsourcing the decision to a foreign public authority. Moreover, the requirements of article 3.2(a) are not limited to that which is certified in such a document. It is usually necessary to establish, for example, that the EU sponsor in the host member state is exercising treaty rights, a matter to which an article 10.2(e) document cannot speak. Secondly, article 3.2(a) itself obliges the host member state to undertake "extensive examination of personal circumstances". This assumes that it is appropriate for the member state, through its authorities, to form its own view of what the article 10.2(e) document purports to certify. The decision of the Court of Justice of the European Union in Secretary of State for the Home Department v Rahman [2013] 2 WLR 230, supports this analysis. Thirdly, the submission misunderstands the purpose of article 10. A residence card issued pursuant to article 10 evidences a right of residence, but it does not confer it. Entitlement is established by satisfying the authorities of the host member state that, as a matter of law and fact, the case falls within article 3.2(a). The production of the documents listed in article 10.2 is a necessary but not a sufficient condition. It remains for the authorities of the host member state to determine whether, in the circumstances of a particular case, compliance with article 3.2(a) is established. There is no presumption, rebuttable or otherwise. Nor does it follow that because the document is authentic, in the sense of not being a forgery, it has any enhanced evidential status.
18. In Tanveer Ahmed v against Secretary of State for the Home Department [2002] UKIAT 00439, the Immigration Appeal Tribunal, presided over by Collins J, made this perfectly clear. It stated at paragraph 31:

"The permutations of truth, untruth, validity and 'genuineness' are enormous. At its simplest we need to differentiate between form and content; that is whether a document is properly issued by the purported author and whether the contents are true. They are separate questions. It is a dangerous oversimplification merely to ask whether a document is 'forged' or even 'not genuine'."

19. Mr O'Callaghan submits that an enhanced status for an article 10.2(e) document is to be derived from the use of the word "certifying" in that provision. Other parts of article 10.2 dealing with other documents sometimes use different words, such as "attesting". It seems to me that in article 10.2(e) the word "certifying" is used because the document is to emanate from a public authority in a foreign state. I do not understand it to give rise to any enhanced status as to its contents; that is the very thing that Tanveer Ahmed counsels against. It was part of the evidence which required evaluation when the Upper Tribunal came to evaluate it and determine what weight should be attached to it. It chose to accord it little weight on the issues at the heart of this appeal, partly because of the delay prior to its production, but more I think because it was unclear as to where the information in the Oredo certificate had come from. It is undoubtedly a permissible inference that at least some of it had come from members of the family, because only members of the family would be likely to have known some of the matters therein asserted: for example, the number of occasions on which the appellant's brother-in-law had returned to the address since departure from Nigeria.
20. For all these reasons, I am satisfied that the Upper Tribunal did not fall into any legal error in the way in which it approached the Oredo certificate.

2: Did the appellant's membership of her sister's household in Nigeria lapse between 2003 and 2006?

21. This is essentially a question of fact on the evidence and the chronology of events. The First-tier Tribunal came to a clear conclusion about that. The passages which I have set out from paragraph 19 in particular make that abundantly clear. Once the weight to be accorded to the Oredo certificate had been permissibly discounted, the evidence strongly demonstrated that Gloria has had no household in Nigeria since 2003, although she has continued to own the house. This finding is unassailable. Moreover, it is common ground that following KG (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 13 and Bigia v Entry Clearance Officer [2009] EWCA Civ 79, there must be a nexus of recency between the arrival of the sponsor and of the OFM (whichever of them arrives first). This is because the purpose of these provisions in the Citizenship Directive is to ensure that the EU citizen is not deterred from exercising treaty rights by being unable to move with members of his or her household. Here, the three year gap and the fact that the appellant initially sought to enter this country and did enter as a visitor were strong indicators that any household membership in Nigeria prior to 2003 had lapsed between then and 2006. There is a dispute about the presence of the appellant in the house in Nigeria prior to 2003, but it seems to me that nothing in this appeal turns on that.

3: Dependency

22. The issue here is whether the provision of rent-free accommodation to the appellant in Nigeria between 2003 and 2006 should have led to a finding that there was dependency at that time.
23. It is significant that throughout the relevant period the appellant was earning the amount of £50 per month as a teacher in Nigeria. There is no evidence that that was insufficient to meet her essential needs. It is common ground that the meeting of essential needs is the relevant test: see Jia v Migrationsverket [2007] QB 545. No minimum standard of living is prescribed by the Citizenship Directive. Moreover, in SM (India) v Secretary of State for the Home Department [2009] EWCA Civ 1426, Sullivan LJ said at paragraph 24:

"... the facts that some financial provision was made and that [the applicants] were accommodated in the family home would not be sufficient in themselves to establish dependency for the purposes of the Directive."

No doubt the appellant benefited from and was better off as a result of her sister's generosity, but that is not synonymous with "dependency" as that concept is understood in EU law.

Conclusions

24. It follows from what I have said that I would dismiss this appeal.
25. LORD JUSTICE McFARLANE: I agree.
26. LORD JUSTICE McCOMBE: I also agree.