United Kingdom Asylum and Immigration Tribunal

ST and others (Article 3.2: Scope of regulations) India [2007] UKAIT 00078

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 13 July 2007

Date Determination notified: 04 September 2007

Before
Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal Designated Immigration Judge McCarthy Immigration Judge Hanson
Between

ST	APPELLANT
and
THE ENTRY CLEARANCE OFFICER, MUMBAI	RESPONDENT

For the Appellants: Mr N Ahmed, instructed by Bhavsar Patel Solicitors

For the Respondent: Miss E Mepstead, Home Office Presenting Officer

DETERMINATION AND REASONS

Article 3.2 of the Citizens Directive 2004/38/EC does not limit the scope or the terms of any national legislation that gives substantive rights to individuals covered by that provision.

1. We heard these three appeals together, because Mr Ahmed, on behalf of the appellants, wished to raise similar submissions in all of them. In each, the appellants are citizens of India who applied for EEA family permits in order to allow them to join family members (to whom in each case we shall refer as "the sponsor") who are in the United Kingdom exercising Treaty rights here. In each case the applications were refused; there were unsuccessful appeals to Immigration Judges, followed by orders for reconsideration at the instance of the appellant. Thus the appeals come before us.
2. In the first appeal, the first appellant is the sponsor's sister-in-law; the second appellant is her child and is therefore the sponsor's niece. In the second appeal the appellants are the sponsor's adult sons. In the third appeal the appellants are again the sponsor's adult sons.
3. Both before us and before the Immigration Judge, Mr Ahmed based his submissions on the basis of the Citizens Directive, 2004/38/EC, and argued that certain provisions in the Directive had the effect of (i) giving the appellants what they seek; or (ii) rendering the UK's implementing legislation, the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) ineffective; or (iii) requiring those regulations to be read in a particular way.
4. In the Directive, Article 2.2 defines "family member". For the present purposes we say only that the definition includes descendents over 21 if they are dependent, but excludes descendents over 21 if they are not dependent, and excludes sisters-in-law, nephews and nieces. Article 3 is as follows:

"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."

5. Regulation 7 of the 2006 Regulations defines "family member" in such a manner as, for present purposes, may be regarded as congruent with the definition in the Directive. Regulation 8 defines "extended family member". It is 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 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.

(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)."

Regulation 12 is headed "Issue of EEA family permit":

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

(a) the EEA national—

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

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

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

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

(ii) would meet the requirements in the immigration rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom.

(2) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if—

(a) the relevant EEA national satisfies the condition in paragraph (1)(a);

(b) the extended family member wishes to accompany the relevant EEA national to the United Kingdom or to join him there; and

(c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit.

(3) Where an entry clearance officer receives an application under paragraph (2) 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.

(4) An EEA family permit issued under this regulation shall be issued free of charge and as soon as possible.

(5) But an EEA family permit shall not be issued under this regulation if the applicant or the EEA national concerned falls to be excluded from the United Kingdom on grounds of public policy, public security or public health in accordance with regulation 21."

6. It had been argued in a number of appeals, these included, that Article 3.2 of the Directive gave to those encompassed by that Article some right of admission to or residence in EU countries. That right would have had to be somewhat inchoate because, although the Directive goes on to define the rights of those family members encompassed by Article 2.2 with some precision, it says nothing more at all about other family members. The argument was rejected by this Tribunal in AP & FP [2007] UKAIT 00048. Mr Ahmed told us that he did not seek directly to challenge the conclusions reached there. Those conclusions were that family members other than those falling within the definition of Article 2.2 of the Directive have no substantive right under EU law to admission to or residence in a Member State. Any substantive rights they have are regulated by the national law of the Member State in question. National law may be more generous than is required by the Directive: see Article 37. The provisions in UK law for relatives falling within Article 3.2 are found in reg 8 and reg 12(2). A person who falls outside the definition of family member in Article 2.2 (and reg 7) must first show that he falls within one of the categories set out in reg 8; if he does so, and applies for an EEA family permit, an Entry Clearance Officer must examine the application, see if he meets the requirements of reg 12(2), and if he does, may (in his discretion) issue a permit; if he refuses, he must, as required by reg 12(3) (and Article 3.2) give reasons justifying the refusal. An "extended family member" who obtains and uses an EEA family permit is, under reg 7(3), treated for most purposes as though he were a family member within the definition of Article 2.2.
7. These appeals, like many other similar appeals, raise issues for the purposes of which we may ignore the special provisions in reg 8(3) and 8(5). The appellants will count as "extended family members" of the sponsor if and only if they can show present or historic dependence on the EEA national they seek to join within the conditions set out in reg 8(2), or that (treating them as if they were intending to join a person present and settled in the United Kingdom) they meet the requirements of the Immigration Rules.
8. Mr Ahmed attacks these requirements of the Regulations. He submits that if it is accepted that Article 3.2 gives no substantive rights to family members other than those encompassed in Article 2.2, Article 3.2 nevertheless points the way to national legislation. The national legislation in question is the 2006 Regulations. The 2006 Regulations are clearly intended to implement the Directive. There is no reference in the Directive either to the Immigration Rules, or to the complex provisions in reg 8(2). Mr Ahmed's principal submission is that regulations purporting to implement a Directive should not, and cannot lawfully, incorporate provisions that have, as he put it, nothing to do with the requirements of the Directive. Therefore, in his submission, the Regulations should be read as thought they omitted the offending requirements: in that case, the appellants might be entitled to succeed despite their inability to meet the requirements of the Immigration Rules, and despite their inability to show dependence or membership of a household in the manner specified by reg 8(2).
9. We are unable to accept that submission. As a matter of principle, the power to include provisions in statutory instruments is simply not limited in the way Mr Ahmed argues. Provided that the provisions themselves are not contrary to any superior legal rule, they have effect. They are not contrary to any legal rule, because the Directive gives the persons in question no right other than that which they might have by national law.
10. If that were not sufficient, there are other reasons for rejecting Mr Ahmed's submission. We have already referred, in passing, to nearly all of them. The first is that Article 37 of the Directive permits national legislation to be more generous than required by the Directive. The Directive does not confer any substantive rights on family members other than those falling within Article 2.2. Any provision of national law which does give any rights to such persons is, therefore, permitted by Article 37. So far from being impliedly prohibited by the Directive, the provisions in question are expressly permitted. Secondly, because in general family members other than those falling within the definition in Article 2.2 have no substantive rights under the Directive, it cannot be said that national legislation dealing with their substantive rights is to any extent controlled by the Directive. It simply and clearly is not. Thirdly, the appellants in these appeals remain in their country of nationality. They do not even fall within the provisions of Article 3.2, because of the phrase in that Article "the country from which they have come". There is no such country in the case of any of these appellants. That is a further reason distancing any provisions made for them from the requirements of the Directive.
11. We shall accordingly read the regulations as written and as containing certain conditions which, if they are to succeed in their appeals, the present appellants would have to meet.
12. In the first case, the appellants could not, whatever their level of dependence on the sponsor, fall within the definition of family member in Article 2.2. They are therefore entitled to be considered for the issue of EEA family permits under reg 12(2) only if they can show that they are "extended family members" within the meaning of reg 8. They cannot do so. They cannot meet the requirements of reg 8(2) because they do not reside in an EU state with the sponsor and have never done so. They cannot meet the requirements of reg 8(4) because in order to do so they would need to meet the substantive requirements of paragraph 317 of the Statement of Changes in Immigration Rules, HC 395 and it is not suggested that they could do so: in particular, there is no evidence that they were at the date of the decision "living alone outside the United Kingdom the most exceptional compassionate circumstances and mainly dependent financially on relatives settled in the United Kingdom", as required by paragraph 317(i)(f). There is said to be some dependence on the sponsor, but these appellants live with the first appellant's mother, and there is no suggestion that in general they could be described as living "in the most exceptional compassionate circumstances".
13. They are not extended family members and are accordingly not entitled to consideration for the issue of EEA family permits under reg 12(2). Their appeals against the refusals were rightly dismissed.
14. Before turning to the other appellants we must say something about the notion of dependence. As we noted above, a child of the sponsor who although over 21 is dependent on the sponsor falls within the definition of family member in Article 2.2. He has a right of admission to the United Kingdom not dependent on the issue of an EEA family permit (see reg 11(4)), and in any event does not need to rely on reg 8. The question of what dependence means in the context of the Directive and the regulations is a matter of some complexity. The Tribunal dealt with it in AP & FP at paragraphs [26]-[35]. The relevant parts are as follows:

"Dependence and dependants

26. There are three possibly relevant notions of dependence for the purposes of cases such as this. First as we have seen, there is a reference to dependants in Article 3(2) of the Directive, as persons who have, subject to national law, the procedural advantages given by that Article. Secondly, the EEA Regulations, at reg 8(2) define "extended family member" partly in terms of dependence. Thirdly, reg 8(4) defines "extended family member" alternatively by reference to qualification under the Immigration Rules, which themselves may contain a requirement of dependence on the sponsor.

27. There are at least two possibly relevant definitions of dependence for these purposes. The Immigration Rules require that a person seeking admission as a dependent relative be "wholly or mainly dependent" on the family member he seeks to join (Statement of Changes in Immigration Rules, HC 395, paras 317(iii)), and the authorities establish that, for these purposes, the dependence must be of necessity, not of choice (Zaman v ECO Lahore [1973] Imm AR 71; Musa v ECO Bombay [1976] Imm AR 28). Where the requirement of dependency is outside the Rules but is instead imposed by regulations introduced with reference to EU free movement legislation, the Tribunal, interpreting regs 6(4) and 10(4) of the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326), implementing reg (EEC) No 1612/98 of the Council of 15 October 1968, in PB and others [2005] UKIAT 00082 said at [8]:

'In deciding whether an applicant is a family member for these purposes, it may be necessary to make a finding of fact on dependency. For these purposes, it is clear that dependency is a question of fact. There is no requirement that dependency be of necessity.'

28. What is meant by dependence within the EU free movement legislation itself was discussed in Jia. In that case the Court had to consider whether the claimant had established that she was dependent on her son and daughter-in-law within the meaning of Article 1(1)(d) of Directive 73/148/EEC, which set out equivalent rules for the admission of family members of nationals of Member States who sought to establish themselves in another Member State. The Court noted at [35] that "the status of 'dependent' family member is the result of a factual situation characterised by the fact that the material support for that family member is provided by the Community national who has exercised his right of free movement". After further reminding itself that the question is about the circumstances that exist, not the reason for those circumstances, the Court continued:

'37. In order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national.

38. That is the conclusion that must be drawn having regard to Article 4(3) of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition, 1968(II), p. 485), according to which proof of the status of dependent relative in the ascending line of a worker or his spouse within the meaning of Article 10 of Regulation No 1612/68 is to be provided by a document issued by the competent authority of the "State of origin or the State whence they came", testifying that the relative concerned is dependent on the worker or his spouse. Despite the lack of precision as to the means of acceptable proof by which the individual concerned can establish that he falls within one of the classes of persons referred to in Articles 1 and 4 of Directive 73/148, there is nothing to justify the status of dependent relative in the ascending line being assessed differently according to whether the relative is a member of the family of a worker or of a self-employed worker.'

So much is clear. Leaving aside for a moment the requirement for proof by a particular document, dependency for the purposes of Directive 73/148/EEC is a matter of need, not of choice. The question is not whether a person does not support himself, but whether he is not in a position to support himself. This position is emphasised in the Court's formal Ruling at the end of the judgment, that "dependent on them" means that the members of the family of a Community national established in another Member State within the meaning of Article 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they apply to join that Community national.

29. A potential difficulty arises, however, from the words of para [36] of the judgment. This is as follows:

'36. The Court has also held that the status of dependent family member does not presuppose the existence of a right to maintenance, otherwise that status would depend on national legislation, which varies from one State to another (316/85 Lebon [1987] ECR 2811, paragraph 21). According to the Court, there is no need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated in particular by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly (Lebon, paragraphs 22 and 23).'

30. This appears to be - in fact is - a reference to a different notion of dependence, in which the question is to be settled without regard to need, so that a person can be dependent on another even if he is in a position to support himself. It is certainly rather odd that in the judgment this paragraph is followed immediately, in the next paragraph, by the first of the formulations of a rule of dependence based on need and on a requirement of inability to support oneself. The Court has no formal procedure for reviewing or overruling its previous judgments or revising a view previously expressed and we can only suppose that the reference to the rule in Lebon here, followed by discussion and assertion of a different test and a formal ruling are intended to dictate a new understanding of dependence based on need, whatever may have been said in Lebon. That understanding must, it is clear from the reasoning in Jia (in particular that at the conclusion of para [38] to which we are about to refer) pervade the notion of dependence as an adjunct of or qualification of the rights of free movement of and residence in the free movement legislation as a whole; and the same must be true of the 2004 Directive which replaces it. It follows that the formulation in para [8] of PB may also need revision. In so far as dependence in the EEA Regulations is intended as an implementation of such a requirement in the Directive, it must mean dependence in the Jia sense: that is to say, dependence arising from a need for the support of the national of a Member State.

…

33. In summary, the effect of the decision of the Court in Jia is to import into European law a requirement for dependence to be of necessity, and to reinforce the requirement of proof by the document described in the Directive. In the result, the notion of dependence under the Directive and hence the EEA Regulations is probably little different from that developed under the Immigration Rules, although the Regulations allow dependence to be proved for UK purposes without production of the document normally required by European law."

15. There is no reason to suppose that the notion of dependence in Article 2.2 of the Directive is different from that in Article 3.2. So far as a person needs to prove dependence for the purposes of Article 2.2, therefore, the word has the meaning given by the decision of the European Court of Justice in Jia. So far as concerns reg 8(4), there is no doubt that in order to prove that he meets the requirements of the Immigration Rules, an appellant required by the Rules to show dependence would need to do so according to the meaning of dependence in the Rules. We note that reg 8(2) neither derives from the Directive nor incorporates a reference to the Rules, and it follows that it may be that the PB approach to the meaning of dependence applies there. We do not have to decide that question in these appeals, however, because it is certain that none of these appellants can meet the requirements of reg 8(2) in any event.
16. The evidence advanced on the appellants' behalf in the second appeal was intended to establish that they were dependent upon the sponsor; that he regularly sent them substantial amounts of money; and that they lived in a house whose rent he paid. The Immigration Judge considered the oral and documentary evidence before him and rejected it as incredible. He pointed out in particular that the two accounts of whether the house in which the appellants lived was the sponsor's own house, and whether they paid rent for it, were flatly contradictory; he noted that there was little documentary, and inconsistent oral, evidence as to the sums of money sent. His findings are criticised in the grounds for review on the basis that he failed to make clear that he was considering whether dependence had been established in the sense required by EU law. There is perhaps some merit in that criticism: it is not always easy to understand from the determination the legal structure against which the Immigration Judge is assessing the evidence. What does clearly emerge, however, is that the Immigration Judge did not find that the appellants were in any sense dependent upon the sponsor. Certainly the evidence falls woefully short of showing that the appellants were dependent upon him in the sense required by Jia. Any error of law made by the Immigration Judge in his decision about dependence was entirely immaterial.
17. In the third case, the Immigration Judge had before her a determination of an earlier appeal by the appellants which itself referred to an even earlier appeal. In both those previous appeals there had been reference by the appellants to employment in their uncle's wine shop, a business which the sponsor denied existed. In the present appeals the Immigration Judge decided that she had "not been told the truth at all". She decided that the appellants were not dependent on the sponsor. Her findings are criticised on the ground that, for the purposes of EU law, dependence is a question of fact only. It does not seem to us that that criticism is well made in this case: she clearly decided, as a fact, that the appellants were not dependent on the sponsor.
18. In these two appeals, then, the appellants, who are in each case adult descendants of the sponsor, have not shown that they are dependent upon their sponsor and therefore have not established that they are family members within the meaning of Article 2.2. Like the appellants in the first case, therefore, they are entitled to admission only if they can show that they are "extended family members" within the meaning of reg 8. They cannot meet the requirement of reg 8(2), because they have never lived in an EEA country. They cannot meet the requirements of reg 8(4), because, whatever might be said about dependence, it has not been shown that any of them, or the applicants from any family, are "living alone outside the United Kingdom in the most exceptional compassionate circumstances".
19. Each of the grounds for reconsideration makes allusion to Article 8. In the second and third cases the Immigration Judge made strong adverse findings on credibility. There is no factual basis upon which these appellants could show that their circumstances were such that proportionality demands their admission. In the first case the relationship is more distant. The Immigration Judge found it a fact that the appellants (who live with the first appellant's mother) have not been members of the sponsor's household before he left India. It is very difficult to see the basis of an Article 8 claim that they should now be permitted to come to the United Kingdom and live with him, rather than with their direct ascendant in India.
20. Mr Ahmed suggested that their claim under Article 8 was stronger because the regulations in force at the time of their application on 22 February 2006 would have entitled them to admission. We do not accept the premise of that submission. The Immigration Judge found that the appellants were not dependent upon the sponsor (not merely that they were not dependent of necessity upon him) and that they had not been members of his household. It is therefore not easy to see how they could have been entitled to admission under the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326) as amended. Those regulations permitted (but did not require) an EEA family permit to be issued to a person who was a relative of an EEA national who was dependent on him or was (or had been) living in his household. Even if the facts had been in the appellants' favour, however, and even if they had had a realistic possibility of challenging the Entry Clearance Officer's discretion, it is very difficult to see that the change in the law could have any bearing on their rights under Article 8. The position is simply that they fail to show that the maintenance of the status quo interferes with their private or family life.
21. In this case there are also grounds based on Article 14 of the ECHR: Mr Ahmed did not elaborate them in oral submission. They argue that an EEA worker with relatives outside the EEA is at a disadvantage compared with an EEA worker who has relatives within the EEA. The submissions entirely fail to engage with the purpose of the Directive and the EEA Regulations, which is not to secure primary immigration to EU countries but to ensure that a Union citizen moving around the EU in the exercise of Treaty rights is not dissuaded from exercising his rights by an inability to have his close family with him as he moves from one Member State to another. There is no merit in the discrimination argument in the terms in which it is put in the grounds.
22. For the foregoing reasons we consider that none of the Immigration Judges made material errors of law. We order that their determinations dismissing these appeals shall stand.

C M G OCKELTON

DEPUTY PRESIDENT

Date: