KG (Sri Lanka) & Anor v Secretary of State for the Home Department

An other family member of a Union citizen does not obtain an automatic right of entry or residence under article 3(2)(a) of the Directive 2004/38/EC. The member state must facilitate entry and residence only where the provision’s qualifying conditions are met.

Where the Union citizen moves between member states, dependency or membership of the Union citizen’s household must have existed in the country from which that citizen moved and immediately before the relevant movement. The relative must accompany or join the Union citizen. Dependency requires material support needed to meet essential needs, while household membership ordinarily means membership of a household headed by the Union citizen. These derivative protections exist to prevent deterrence of the Union citizen’s free movement, rather than to promote family reunification as an independent objective.

Two Sri Lankan nationals appealed from determinations of the Asylum and Immigration Tribunal refusing their claims to reside in the United Kingdom as other family members of Union citizens. Each appellant had entered the United Kingdom years before the relevant Union citizen arrived and had remained after an unsuccessful asylum claim.

The appellants argued that regulation 8(2)(a) of the Immigration (European Economic Area) Regulations 2006 did not correctly transpose article 3(2)(a) of the Directive 2004/38/EC. They contended that dependency or household membership could have existed in any country, including Sri Lanka, rather than in the EEA state from which the Union citizen moved.

The central issues were the meaning of “the country from which they have come”, the conditions governing other family members, and whether either appellant satisfied those conditions.

1. The appeals were dismissed. Buxton LJ delivered the leading judgment. Hooper LJ agreed with all his reasons. Sedley LJ agreed with the dismissal and with the identified underlying policy, while adding observations about the meaning of the relevant country.

2. The rights conferred on relatives by the Directive 2004/38/EC support the Union citizen’s exercise of free movement. They do not pursue family reunification as an independent objective. The relevant question is whether denying the derivative protection may deter the Union citizen from moving between member states.

3. Article 3(2)(a) differs from the provisions governing spouses and other article 2 family members. An other family member qualifies only by satisfying the specified conditions. Where the Union citizen’s relevant movement is from one member state to another, the dependency or household membership must have existed in the state from which the Union citizen moved and immediately before the other family member accompanied or joined that citizen.

4. Regulation 8(2)(a) may be too narrow insofar as it invariably requires the relevant country to be an EEA state. The point could affect a Union citizen entering from a third country after never living, or living for a substantial period, in the citizen’s own member state. It did not assist these appellants, whose claims depended on movement from Germany and France respectively.

5. Neither appellant accompanied or joined the relevant Union citizen. Each was already living unlawfully in the United Kingdom before that citizen arrived. The Directive does not enable a person in that position to legitimise a previous immigration breach through the later arrival of a Union citizen relative.

6. Dependency requires material support necessary to meet the relative’s essential needs in the relevant country at the time of joining the Union citizen. Neither appellant proved that condition. Household membership ordinarily refers to the household of the Union citizen, rather than mere residence by collateral relatives in a shared family home. The required dependency or household membership must also be current or very recent.

7. Sedley LJ considered that “the country from which they have come” denotes the country of most recent provenance, rather than necessarily the country of origin. Where that place is not the EU state from which the Union citizen moved, the Directive’s policy does not require a right of entry.

8. Even if the court’s principal construction were wrong, both appeals failed on the facts. No reference to the European Court of Justice was therefore justified. Had article 3(2)(a) applied, the required extensive examination of the appellants’ personal circumstances had not occurred, but that issue did not arise.

1. Court of Appeal (Civil Division): Both appeals were dismissed in [2008] EWCA Civ 13.

2. Asylum and Immigration Tribunal: The Tribunal had rejected the appellants’ claims to residence as extended family members. The identifying citations of its determinations are not stated in the judgment.