England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(Upper Tribunal Judge Allen)

		Royal Courts of Justice Strand London, WC2A 2LL
		16 December 2014

LORD JUSTICE SULLIVAN:

Introduction

1. This is an appeal against the determination promulgated on 8 May 2013 of the Upper Tribunal (Immigration and Asylum Chamber) dismissing the appellant's appeal against the determination dated 8 January 2013 of the First-Tier Tribunal (Judge Harris) dismissing the appellant's appeal against the Secretary of State's decision dated 8 October 2012 to refuse to issue him with a residence card under the Immigration (European Economic Area) Regulations 2006 ("the 2006 Regulations"). In its determination the Upper Tribunal effectively endorsed the reasoning of the First-Tier Tribunal, so the focus of this appeal is upon the correctness or otherwise of the First-Tier Tribunal's determination.

Facts the appellant was born on 8 July 1991 and is an Algerian citizen. He has a brother, Mr Faouzi Alem{" take out/}, referred to as Mr F Alem in the First-Tier Tribunal's determination. Mr F Alem was born in 1983 and is now 31 years old. Mr F Alem is married to Ms Karima Cherid, an Italian citizen, who is exercising Treaty rights in the United Kingdom.

2. Before the First-Tier Tribunal, the appellant claimed that, for the purposes of the 2006 Regulations, he was an "extended family member" of Ms Cherid.
3. The First-Tier Tribunal concluded that in the United Kingdom the appellant was dependent on and a member of the same household as Ms Cherid, so the issue was whether there was dependence on, or membership of the same household as Ms Cherid before the appellant came to the United Kingdom. There was no suggestion that the appellant had ever been a member of Ms Cherid's household prior to his coming to the United Kingdom with his parents in March 2008, so the only remaining question before the First-Tier Tribunal was whether the appellant was dependent on Ms Cherid before he came to the United Kingdom.
4. The basis of the appellant's claim in that respect was recorded in paragraph 47 of the First-Tier Tribunal's determination:

"The appellant's claim is that shortly after the relationship between his brother and Ms Cherid commenced in the summer of 2007, the appellant became dependent upon Ms Cherid. This was through the transfer of funds to him arranged by his brother. As the appellant only came to the UK in March 2008, this demonstrates the required condition of dependence in a country outside of the UK before arrival here."

5. The First-Tier Tribunal summarised its response to that claim in paragraphs 48 to 50 of the determination:

"48. In the appeal before me the appellant relies on the oral evidence of himself, his brother and Ms Cherid in respect of this claimed dependency in Algeria. The appellant has not produced any documentary evidence to help support his case.

49. Am I able to rely simply on the word of the appellant and his witnesses to demonstrate the claimed dependency?

50. I am not satisfied that I can."

6. In paragraphs 51 to 63 Judge Harris explained why he was not satisfied that he was able to rely on the word of the appellant and his witnesses.
7. First, there were discrepancies in the appellant's account of how he had come to be living with his brother and his brother's wife in a house belonging to a Mr Harabatte. Was it a planned meeting with them at Mr Harabatte's house, as alleged by the appellant to Judge Harris, or as a result of a chance meeting with Mr Harabatte as the appellant had alleged in an earlier hearing before Immigration Judge Warner in the First-Tier Tribunal?
8. Judge Harris said in paragraphs 57 to 61:

"57. I find that these discrepancies in evidence are of such significance as to weigh against treating the appellant, Mr F Alem and Ms Cherid as reliable witnesses on their word alone about the claimed dependence said to have been established before the appellant moved in July 2009 into the home of his brother and sister-in-law.

58. I further note that the claim of there being any dependence prior to 2009 does not appear to have been made before [Immigration Judge] Warner in the 2011 appeal. The evidence as put to [Immigration Judge] Warner mentions only that the appellant had been living with his brother and Ms Cherid since their Islamic marriage in July 2009.

59. I find that I cannot ignore this failure to mention the dependence being established prior to the appellant coming to the UK. This was despite the main obstacle to success in the appeal being clearly identified at the hearing as being the lack of evidence of financial dependency prior to the appellant coming to the UK.

60. The appellant and his witnesses told me that they had not mentioned it because they had not been asked about it. I am not satisfied that this is a plausible explanation. For the 2011 appeal the appellant had legal representation and the determination indicates that all three gave full evidence.

61. In the circumstances, if the dependence prior to arrival had existed in 2007, I would have expected the appellant or his legal representatives to have raised the matter before [Immigration Judge] Warner when the clear opportunity presented in 2011."

9. Having referred to Devaseelan, Judge Harris said in paragraphs 63 and 64:

"63. I am not satisfied that I can treat the appellant, Mr F Alem and Ms Cherid as giving reliable evidence about the claimed dependence of the appellant on Ms Cherid starting before his arrival in this country.

64. On the oral and documentary evidence before me I am not satisfied that the appellant has demonstrated on the balance of probabilities the claimed dependence prior to arrival in this country."

The issue

10. On the face of the appellant's skeleton argument, it appeared that there was only one issue in this appeal. Could the appellant have qualified as an extended family member under the 2006 Regulations upon the basis that he was a dependant or a member of the household of the spouse of an EEA national, namely his older brother, Mr F Alem, before he (the appellant) came to the United Kingdom in March 2008?
11. I will deal with the second issue which only arose during the course of Miss Anifowoshe's submissions on behalf of the appellant in due course.

The Citizens' Directive

12. The 2006 Regulations give effect to Directive 2004/38/EC ("the Citizens' Directive"). Article 3 of the Citizens' Directive provides as follows:

"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 of 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."

The 2006 Regulations

13. Regulation 8 of the 2006 regulations deals with "extended family member" as follows:

"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 satisfy 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-country other than the United Kingdom 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.

(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national, his spouse or his civil partner.

(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom.

(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision-maker that he is in a durable relationship with the EEA national.

(6) In these Regulations 'relevant EEA national' means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5)."

Discussion

14. It is common ground that Regulation 8 properly transposes Article 3 of the Directive.
15. It will be noted that both the Citizens' Directive and the 2006 Regulations distinguish between family members and other or extended family members, and that an "other family member" for the purposes of Article 3.2 of the Citizens' Directive must be a dependant or a member of the household of the Union citizen. On a straightforward reading of the wording of Article 3.2, it is not enough that they are dependent on or a member of the household of the Union citizen's spouse.
16. In respect of this limitation Regulation 8(2) mirrors Article 3.2: the "extend family member" must, prior to coming to the United Kingdom, have been dependent upon or a member of the household of the EEA national.
17. That was the clear conclusion of this court in Soares v Secretary of State for the Home Department [2013] EWCA Civ 537. It might be thought that, since we are bound by Soares, that would be the end of the appellant's appeal. But Miss Anifowoshe submitted that the court in Soares did not consider two matters which, she submitted to us, should lead to the conclusion that extended family membership can be based on dependency or membership of the household of the EEA national's spouse.
18. Those two matters were (1) the definition of "relevant EEA national" in Regulation 8(6) (see para. 13 above); and(ii) Article 38 of the Citizens' Directive which repeals a number of earlier directives, including Directive 73/148/EEC and which provides in paragraph 3 that:

"3. References made to the repealed provisions and Directives shall be construed as being made to this Directive."

19. Looking at those two matters in turn, it is true that the appellant in Soares did not place any reliance upon the definition of "relevant EEA national" in Regulation 8(6), but that was for the good reason given at the end of paragraph 16 of Lord Justice Davis' judgment. Having set out the terms of paragraphs (1) and (2) of Regulation 8, he said:

"'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."

20. In my judgment, the appellant's reliance in this appeal upon the definition of "relevant EEA national" in Regulation 8(6) is not well founded. The 2006 Regulations are highly prescriptive. "Relevant EEA national" and "EEA national" are separately defined in Regulation 2(1). "Relevant EEA national" is a term of art which has a wider meaning than "EEA national". The short answer to the appellant's submission is that, unlike, for example, Regulation 16(5) or 17(4) which do refer to "relevant EEA national" in relation to extended family members, Regulation 8(2) does not; it refers to "the EEA national". The broader definition of "relevant EEA national" in Regulation 8(6) does not alter the meaning of "extended family member", namely a person who is not a family member and who satisfies the conditions set out in paragraphs (2), (3), (4) or (5) of the Regulation: see paragraph (1) of Regulation 8. Where it applies, elsewhere in the Regulations (see, for example, Regulations 16 and 17) the definition of "relevant EEA national" applies in relation to an extended family member who satisfies the conditions that are set out in paragraphs (2), (3), (4) or (5) of Regulation 8.
21. I have already referred to the fact that, in referring to the EEA national rather than the EEA national or his or her spouse or partner, Regulation 8(2) mirrors Article 3.2 of the Directive, which refers to the Union citizen and not to the Union citizen or the Union citizen's spouse.
22. Miss Anifowoshe sought to overcome this difficulty by reference to her second matter, namely Article 38 of the Citizens' Charter. She submitted that the effect of paragraph 3 of Article 38 (see above) was that reference had to be made to the earlier Directives, and in particular to Directive 73/148/EEC ("the 1973 Directive") in order to understand the context within which the Citizens' Directive had been adopted. She referred, in particular, to Article 1.2 of the 1973 Directive, which was in these terms:

"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."

23. The court in Soares was well aware of the differences between Article 1.2 of the 1973 Directive and Article 3.2 of the Citizens' Directive. Having set out the relevant parts of both Directives in paragraphs 8 to 13 of his judgment, Lord Justice Davis said this in paragraphs 14 and 15:

"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 [who appeared on behalf of the Secretary of State in Soares] 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 also 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 accession of a significant number of states to the Union."

24. In my judgment, paragraph 3 of the Article 38 of the Citizens' Charter does not have the effect for which Miss Anifowoshe on tends. It simply ensures that where other documents do refer to the repealed Directives, reference must now be made to the Citizens' Directive. It does not suggest that, when that is done, it will be found that the provisions of the Citizens' Directive will be the same as those which were previously contained in the repealed Directives. An explanation for the very obvious changes between the 1973 Directive and the Citizens' Directive in this respect is to be found in paragraph 15 of Soares (see above).
25. Miss Anifowoshe was not able to point to any working paper or other document which suggested that these changes were anything other than deliberate. Her submission that we should adopt what was in effect a purposive interpretation of Article 3.2 and Regulation 8(2) to give effect to the " spirit" rather than the letter of those provisions is in my judgment flawed for two reasons.
26. First, it assumes rather than demonstrates that there was an intention to maintain, rather than to amend, the obligation that was formerly imposed on Member States by Article 1.2 of the 1973 Directive before it was repealed and replaced by Article 3.2 in the Citizens' Charter. As Mr Singh pointed out, that assumption is belied by the express terms of recital (6) to the Citizens' Directive which refers to the need to take into account the relationship of persons who are not included within the definition of family members with the Union citizen, and any other circumstances, such as those persons' financial or physical dependence on the Union citizen. Although Miss Anifowoshe referred us to recital (5), the fact that the right to move and freely reside within the territory of the Member States is extended to family members, does not, it seems to me, detract in any way from this submission of Mr Singh.
27. Secondly, the appellant's submission invites the court to adopt an interpretation of Article 3.2 which significantly departs from the "plain and natural meaning" of the words used in that Article, contrary to the approach adopted by this court in Oboh and others v Secretary of State for the Home Department [2013] EWCA Civ 1525: see, in particular, paragraphs 45 to 61 of the judgment of the court in that case.
28. In Oboh the court was concerned with a different aspect of Article 3.2, but its conclusion in paragraph 59 that there was no justification for overriding "the explicit language of Article 3.2" applies with no less force, in my judgment, to the present case.
29. That sufficient to dispose of this appeal, but for the sake of completeness I should mention the second issue which arose when we asked Miss Anifowoshe how this appellant's appeal could succeed on the facts even if we were to accept her submission that the reference to "the EEA national" or the Union citizen in Regulation 8(2) or Article 3.2 should be read as including the spouse of the EAA national or the Union citizen.
30. I have set out the relevant passages from the First-Tier Tribunal's determination above. The appellant's case before the First-Tier Tribunal was that while he was in Algeria before he came to the United Kingdom in 2008 he was dependent upon his brother's spouse. His brother merely acted as a conduit for funds from his spouse (the EEA national) to the appellant. The First-Tier Tribunal's reasons for rejecting this allegation of dependency would be equally applicable to a claim that the appellant was in some way dependent while he was in Algeria before coming to the United Kingdom upon his brother, Mr F Alem.Miss Anifowoshe confirmed that the appellant was not basing his appeal on an allegation that, prior to his arrival in the United Kingdom, he had been dependent on his brother.
31. Miss Anifowoshe submitted that the appellant would be entitled to succeed in his appeal because he and his brother, Mr F Alem, had both been members of the same household while they were living in Algeria. The relevant findings of fact are contained in paragraphs 19 to 21 of the First-Tier Tribunal's determination and are as follows:

"19. The appellant was born and grew up with his parents in Algeria along with his brother: Mr F Alem, a twin brother of the appellant and another brother.

20. His father was a pensioner and his mother did not work. His father's income was not enough to provide properly for all the family.

21. Mr F Alem left Algeria in around 2001-2002."

32. Mr F Alem was born in 1983, so he left Algeria when he was 18 or 19 years old. Prior to that, all four brothers had been living in Algeria with their father and mother. It is unnecessary to decide whether that household in Algeria was the father's or the mother's or both parents' household. What is clear is that it was not Mr F Alem's household.
33. Regulation 8(2) requires the extended family member to have been dependent on the EEA national (or his spouse if we had accepted Miss Anifowoshe's submissions) or a member of his household. Similarly, Article 3.2 would refer to the Union citizen (or his spouse if we had accepted Miss Anifowoshe's submission).
34. Miss Anifowoshe sought to meet this difficulty by referring us back to Article 1.2 of the 1973 Directive in which it was sufficient for the other family member to have been living while in the country of origin under the same roof as the national of the Member State or his spouse.
35. To adopt this interpretation of Article 3.2 and Regulation 8(2) would be to depart even further from the plain and natural meaning of those provisions. We would be considerably enlarging the obligation in respect of extended family members which was undertaken by the Member States of the European Union and, for the reasons given above, we would be doing so for no obvious policy or other reason.
36. Miss Anifowoshe submitted that if we did not accept her submissions as to the proper interpretation of Article 3.2 then a reference to the CJEU was appropriate. I do not accept that submission. It seems to me that the provisions of Article 3.2 are clear. There is no need for a reference.
37. For these reasons, I would dismiss this appeal, but in conclusion I would pay tribute to the submissions of Miss Anifowoshe and I would also like to thank Mr Singh for his assistance in this appeal.
38. LORD JUSTICE DAVIS: I agree. I only add a few observations as I was party to the decision in Soares.
39. The point about Regulation 8(6) was certainly not as fully developed in Soares as it was by Miss Anifowoshe in argument before us, but it was alluded to (see paragraph 16 of the judgment in that case).
40. I do not myself, at all events, see how the wording of Regulation 8(6) ultimately can assist Miss Anifowoshe's argument. In Regulation 2(1) and in Regulation 8(6) the definition of "relevant EEA national" in terms of its reach is predicated on there being an extended family member. That is the import of the opening words of the definition:

"... in relation to an extended family member ..."

41. But the applicant in this case was not an extended family member. He was not because he could not come within Regulation 8(2), which requires dependency on or membership of the household of an EEA national. Regulation 8(2), I would emphasise, refers to an "EEA national", not to a "relevant EEA national".
42. Miss Anifowoshe was in effect asking the court, rather as had been argued in Soares, to rewrite the Regulation. There is no justification for doing that. Regulation 8(2) in this respect reflects the actual wording of Article 3.2 of the Citizens' Directive. There is no proper basis, as I see it, for looking yet further back to the now superseded Directive 73/148/EEC, which was the predecessor to the Citizens' Directive.
43. Indeed, Miss Anifowoshe's whole argument seems to me not only to be contrary to the actual decision in Soares but also, in terms of its approach, contrary to the general approach indicated as appropriate to the interpretation of Article 3.2 of the Citizens' Directive as laid down by the decision of this court in Oboh, to which my Lord has referred.
44. I would only add that in Oboh the court, after stating that there was no justification for "overriding the explicit language" of Article 3.2, went on to say, as it seems to me, speaking in general terms by reference to the policies or objectives of free movement and residence by EU citizens, this:

"That policy might well be advanced if the criteria delimiting the category of other family members were set wider. However, that is not what the Directive does. It uses clear words to set the limits of the qualifying category. We do not consider that it is legitimate to use the tool of purposive interpretation to defeat those clearly stated limits and to substitute what would be new and very different criteria."

45. With all respect to Miss Anifowoshe, her argument does seem to be embracing an approach which the court in Oboh considered not to be legitimate.
46. I agree, further, that the appeal must in any event fail on the facts. There was no finding, indeed there was no evidential basis for finding, that the appellant was a member of any household of his brother in Algeria.
47. In truth, Miss Anifowoshe was trying to equate the phrase "membership of the household of the Union citizen", as used in Article 3.2 of the Citizens' Directive and reflected in the wording of Regulation 8(2), with the words previously used in Article 1.2 of Directive 73/148/EEC, that is to say:

"... or who in the country of origin was living under the same roof."

48. There is no basis either linguistic or conceptual for doing so. Here too the Citizens' Directive is designedly different in this regard from the previous Directive and Regulation 8 duly reflects that difference.
49. Accordingly, and in common with Lord Justice Sullivan, with whose judgment I entirely agree, I also would dismiss this appeal and would refuse to make a reference.
50. LADY JUSTICE KING: I would also agree.

ORDER: Appeal dismissed with costs to be assessed if not agreed; application for permission to appeal to the Supreme Court refused.

(Order not part of approved judgment)