Bigia & Ors v Entry Clearance Officer

Under Directive 2004/38/EC, a non-EEA national who is a family member within article 2.2 need not have resided lawfully in another Member State before accompanying or joining a Union citizen. An adult descendant is a dependant where the Union citizen’s material support is needed to meet essential needs.

An extended family member under article 3.2(a) likewise need not establish prior lawful residence in another Member State. The person must, however, have been dependent on, or a member of the household of, the Union citizen in the country from which the citizen most recently moved. That relationship must have existed immediately before, or very recently before, the movement. Historic or geographically separate dependency is insufficient because article 3.2 seeks to remove obstacles to the Union citizen’s freedom of movement, rather than to secure family reunification generally.

These conjoined appeals concerned Indian and Sri Lankan nationals seeking EEA family permits or residence rights through relatives who were Union citizens living in the United Kingdom. The appellants included minor grandchildren, adult descendants, a son-in-law, nephews and nieces.

The Asylum and Immigration Tribunal had reached differing conclusions about dependency, household membership and the requirement for previous residence in an EEA State. One adult couple also applied for reconsideration outside the statutory time limit.

After the Tribunal proceedings, the European Court of Justice decided Metock v Minister for Justice, Equality and Law Reform, Case C-127/08. The central questions were whether that decision removed prior-residence requirements for family members and other family members, and whether it displaced the construction of article 3.2(a) adopted in KG and AK (Sri Lanka) [2008] EWCA Civ 13.

1. The appeals were allowed in part. The appeals of UB and her minor daughter, and that of the minor grandchild in PP, were allowed. The remaining appeals were dismissed. Maurice Kay LJ gave the judgment, with which Tuckey LJ and the Master of the Rolls agreed.

2. Minor grandchildren were direct descendants under article 2.2(c) of Directive 2004/38/EC and did not have to prove dependency while under 21. Following Metock, their rights could not be made conditional on present or previous lawful residence in another Member State. Regulation 12(1)(b)(i) of the Immigration (European Economic Area) Regulations 2006 was incompatible with the Directive to that extent.

3. An adult descendant qualified as a family member if dependent on the Union citizen. The applicable Jia test asked whether the descendant needed the citizen’s material support to meet essential needs in the state of origin or departure when applying to join the citizen. UB satisfied that demanding test because her father provided rent-free accommodation and regular money for bills, daily expenses and clothing, and she had no other income. Remittal was unnecessary because the result was inevitable.

4. The adult appellants in PP could not pursue reconsideration because their application was three days late under section 103A(3)(b) of the Nationality, Immigration and Asylum Act 2002. They had not shown that timely application was not reasonably practicable. In any event, money sent to them supplemented income and funded matters beyond essential needs, so dependency was not established.

5. Metock also meant that other family members under article 3.2(a) could not be required to establish prior lawful residence in another Member State. In that respect, the fourth and sixth propositions in KG and AK (Sri Lanka) [2008] EWCA Civ 13 required modification.

6. However, Metock did not disturb the remaining construction adopted in KG and AK. An other family member must have been dependent on, or a member of the household of, the Union citizen in the country from which the citizen most recently moved. The relationship must have existed immediately before, or very recently before, that movement. Historic or geographically separate dependency does not engage the Directive’s purpose of removing obstacles to free movement. The TS and GT appellants therefore failed, and no reference to the European Court of Justice was necessary.

• Court of Appeal (Civil Division): In [2009] EWCA Civ 79, allowed the appeals of UB and her daughter and of the minor grandchild in PP, but dismissed the appeals of the remaining appellants.
• Asylum and Immigration Tribunal: The several Tribunal decisions had addressed dependency, household membership, prior EEA residence and, in PP, the timeliness of an application for reconsideration. No neutral citations were stated.