In the case of MR & Ors (EEA extended family members) Bangladesh  UKUT 449 (IAC), where an Irish national had sponsored her Bangladeshi in-laws to live with her family in Northern Ireland, Mr Justice Blake (Blake J) – the president of the Upper Tribunal Immigration and Asylum Chamber (UTIAC) – conceded that tribunals in the UK were unable to confidently decide questions arising from Article 3 of the Citizens Directive (the Directive) because national law left judges “in a state of uncertainty”.
Accordingly, Blake J made a reference to the Court of Justice of the European Union (CJEU) because a preliminary ruling by Luxembourg would “have implications” for third country national Other Family Members (OFMs) – “extended family members” in local UK parlance – throughout the EU. Moreover, the judge simultaneously rejected the submission advanced on behalf of the Secretary of State for the Home Department (SSHD) that the UK had done its duty by enacting regulation 8 of the Immigration (European Economic Area) Regulations 2006 (the 2006 Regulations) and that MR & Ors were unable to comply with the law if it was read in light of Bigia & Ors v ECO  EWCA Civ 79. While rejecting the SSHD’s reasoning, Blake J further lamented that “[i]t is unfortunate that the Regulations do not set out what the Home Office believe the law to be.”
In Ihemedu (OFMs – meaning) Nigeria  UKUT 340 (IAC) – where a Belgian national of Nigerian origin sponsored his Nigerian cousin as an OFM – the Tribunal explained that there in nothing in the domestic law which seeks to specify exhaustively the type of relationship under which relatives could qualify as OFMs. It was further determined that the discretion contained within regulation 17(4) of the 2006 Regulations was for the SSHD alone to exercise.
Among other things Article 3 of the Directive requires Member States to facilitate entry and residence – “in accordance with their national legislation” – to OFMs who are dependants or members of the sponsoring Union citizen’s household. Article 10 sets out the documents which are to be supplied by the applicant for the grant of a residence card by a Member State and a denial of entry or residence to OFMs must be justified.
The CJEU’s decision in Metock v Minister of Justice, Equality and Law Reform, Case C–127/08 removed from the law the domestically transposed requirement for family members to have prior lawful residence. However, the CJEU’s decision in Metock notwithstanding, in Bigia the Court of Appeal reiterated its earlier conclusion in KG (Sri Lanka) v SSHD  EWCA Civ 13 that OFMs cannot be granted entry from a third country outside the EU because they are not provided freestanding rights by the Directive. Instead, according to the Court of Appeal in Bigia, OFMs need to satisfy the requirements of regulation 8(2) by living in a Member State where dependency existed or by living in a Member State with the sponsoring Union citizen.
In MR & Ors, Blake J referred six questions to the CJEU in relation to whether the Directive:
(2) Through its direct applicability allows OFMs to sidestep national legislation?
(3) Limits OFMs to persons who resided with the Union citizen prior to arriving in the host state?
(4) Requires OFMs to exhibit antecedent dependency on the Union citizen shortly before they enter the host state?
(5) Allows Member States to define dependency in order to preclude third country nationals residence and entry?
(6) Requires dependency relied upon by OFMs for entry to continue for a period or indefinitely and how such dependency is demonstrated?
In the recent case of Moneke (EEA – OFMs) Nigeria  UKUT 00341(IAC) Blake J set out interim guidelines which tribunals in the UK should follow while the CJEU decides the questions which it was referred by the UTIAC in MR & Ors.
In Moneke Blake J did not feel bound by the Court of Appeal’s approach in Bigia because of the reference he made to the CJEU in MR & Ors. Blake J also explained that earlier rulings in connection to OFMs in domestic courts failed to consider the express terminology of Article 10(2)(e) of the Directive which was at odds with the approach espoused by the Court of Appeal in KG (Sri Lanka) and Bigia.
In Moneke – pursuant to regulation 8 – Tonia Moneke (T) and Fidelis Moneke (F) applied for residence cards (which the SSHD refused for insufficient evidence of dependence) relying on their cousin Mr Egboh (E); a German national of Nigerian origin who moved to Germany in 1997. (Although E acquired German citizenship it remained unclear exactly when this was.) E had, moreover, provided accommodation and money to T and F while they lived in Nigeria and also after their arrival in the UK.
What made the case interesting – and an ideal guideline case – is that T arrived in the UK on 5 March 2005; E arrived shortly afterwards from Germany and exercised a Treaty right as a worker; F arrived in 2006; regulation 8(2)(a) of the 2006 Regulations introduced a geographical restriction on dependants which mirrored the requirement for members of a household; and finally, owing to the SSHD’s concession in Bigia that OFMs are within the ambit of the decision in Metock, on 2 June 2011 the terms of the 2006 Regulations were widened from “the person is residing in an EEA State in which the EEA national also resides” to “the person is residing in a country other than the United Kingdom in which the EEA national also resides”.
In the first instance hearing Immigration Judge Kopieczek (the IJ) concluded that although the appellants (T and F) were dependent on E, the IJ was bound by the decision in Bigia whereby the dependency would need to be exhibited in Germany as that was the country from where E entered the UK. Equally, the IJ also distanced himself from RK (OFM – membership of household – dependency) India  UKUT 421 (IAC) where Blake J had presciently observed that he doubted “that the Court of Appeal in Bigia would have reached the conclusions it did regarding OFMs if its attention had been directed to Article 10(2)(e)”.
In Moneke the Tribunal made very plain that:
- The amendment made to the 2006 Regulations in light of the SSHD’s concession in Bigia – in consideration of Metock – and “the misunderstanding of Community law based on the Akrich decision” does not restore the law to a pre-2006 position. Moreover, no principle of Community law requires “reading in” any requirement of “a geographic nexus for pre-entry dependency”. (See commentary on SSHD v Akrich, Case C-109/01 by Rosalind English here.)
- The purpose of the Directive was to “consolidate and extend rather than restrict rights”. Moreover, since the Directive’s predecessor (Regulation EEC No.1612/68) did not require a geographic nexus it was surprising that the Directive could impose such a condition.
- The reference to the word “they” in Article 3(2)(a) of the Directive – read conjunctively with Article 10(2)(e) – is a reference to OFMs only and not to the Union citizen. (See guideline (vi) below.)
- The wording of the 2000 Regulations correctly transposes the continuing EU law requirement for admission and residence of dependent OFMs/extended family members and the geographical restrictions on dependants imposed in 2006 and maintained in 2011 are at variance with Article 3(2) of the Directive.
- In MR & Ors the SSHD failed to submit that the UTIAC was bound by Bigia to conclude that a dependant who had not lived in another country in which the qualified person also lived could not be a dependent OFM within the meaning of the Directive or the Regulations.
- Although a purposive approach to the Directive was justified to exclude abuse such considerations were irrelevant in deciding whether a person is a dependent OFM/extended family member or a member of the household of an EEA sponsor.
- Article 21 of the EU Charter of Fundamental Rights exacted that OFMs ought not to be excluded in limine (as a preliminary matter) purely for geographic reasons because there was no difference in impact on the exercise of Treaty rights by the Union citizen whether the OFM lived “in a remote and distant part of the same country or in a different country altogether.” This approach is also consistent with the Court of Appeal’s decision in SM (India) v ECO (Mumbai)  EWCA Civ 1426 where the Court remitted a dependant’s case for reconsideration.
In relation to Bigia Blake J remarked that:
“We do not consider that we are bound by this decision because it did not consider and was presumably not referred to Article 10 of the Directive as an aid to the construction of Article 3(2).”
Equally, with reference to KG (Sri Lanka) and Bigia he also clarified that (i) EU law distinguishes between dependants and members of a household (who share a roof as opposed being dependent) whereas their Lordships did not do so; and (ii) the discretionary nature of regulation 17(4) of the 2006 Regulations accommodated the EU concept of abuse of rights and there was no need for considerations of policy to rest on an artificial restriction of the term “dependants”.
Therefore, in order to alleviate the confusion which clouds the subject of OFMs, Blake J set out the following “pragmatic” guidelines for dependency which were to be followed by IJs while considering OFM cases:
(i) A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: they are alternative ways of qualifying as an OFM.
(ii) In either case the dependency or membership of the household must be on a person who is an EEA national at the material time. For this reason it is essential that tribunal judges establish when the sponsor acquired EEA nationality.
(iii) By contrast with Article 2(2) family members, an OFM must show qualification as such before arrival in the United Kingdom and the application to join the EEA national who is resident here.
(iv) Membership of a household has the meaning set out in KG (Sri Lanka) and Bigia & Ors; that is to say it imports living for some period of time under the roof of a household that can be said to be that of the EEA national for a time when he or she had such nationality. That necessarily requires that whilst in possession of such nationality the family member has lived somewhere in the world in the same country as the EEA national, but not necessarily in an EEA state.
(v) By contrast the dependency on an EEA national can be dependency as a result of the material remittances sent by the EEA national to the family member, without the pair of them having lived in the same country at that time before making those remittances.
(vi) The country from which the OFM has come can be either the country from which he or she has come to the United Kingdom or his or her country of origin.
(vii) Notwithstanding the preliminary reference to the Court of Justice made by the Upper Tribunal in MR & Ors tribunal judges can proceed to determine OFM appeals in accordance with the guidance given by the Upper Tribunal in this and related cases, making sure to make findings of fact based on a rigorous examination of the evidence.
(viii) Where relevant, findings need also to be made on whether it is appropriate to issue a residence card in accordance with the discretion afforded by regulation 17(4) of the 2006 Regulations.
(ix) In deciding whether a person falls within the material scope of regulation 8 of the 2006 Regulations, policy considerations relating to such matters as the appellant’s immigration history, the impact of an adverse decision on the exercise by the EEA national of his or her Treaty rights, etc are irrelevant. Such policy considerations are relevant, however, to the exercise of regulation 17(4) discretion.
The Moneke appellants’ case was dismissed in Moneke (EEA OFMs – assessment of evidence) Nigeria  UKUT 430 (IAC), dated 11 November 2011, for reasons of misrepresentation connected to their entry. The guidelines, however, still remain until the CJEU decides the question which were referred to it in MR & Ors.