VN v The Secretary of State for the Home Department

An extended or other family member seeking residence rights under Article 3.2(a) of Directive 2004/38/EC must establish the required dependency or household membership in the country from which they came and its continuation in the United Kingdom. Dependency arising only in the host state is insufficient.

The rule allowing an Article 2.2(d) family member to prove dependency arising in the host state, established in Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358, does not extend to other family members. Dependency is a factual condition requiring material support from the Union citizen. Although Article 8 ECHR and proportionality may be relevant, they did not make refusal disproportionate on these facts.

The appellant, a Macedonian national, applied for a residence card as the extended family member of his Italian brother-in-law, who was exercising Treaty rights in the United Kingdom. The Secretary of State refused the application because prior and continuing dependency had not been established.

An Immigration Judge dismissed the appeal. The Judge found dependency in the United Kingdom but found that the appellant had not been financially dependent on his sponsor in Macedonia. The appellant obtained permission to appeal, contending that the Judge had applied an unlawful requirement of prior residence in another EEA state and had acted unfairly in considering his earlier visitor-visa application.

The central issue was whether dependency established only after arrival in the United Kingdom could qualify an Article 3.2(a) other family member for a right of residence.

1. The appeal was dismissed after remaking the decision. The Immigration Judge materially erred by attaching significance to the appellant’s failure to have lived with his sister and brother-in-law in another EEA state. Any requirement of prior lawful residence in another Member State was incompatible with Directive 2004/38/EC.

2. The error was nevertheless immaterial. The Immigration Judge’s unchallenged and sustainable factual finding was that the appellant had not received material support from his EEA sponsor while in Macedonia. He was therefore not dependent there within the meaning explained in Jia Case C-1/05.

3. Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358 concerned an Article 2.2(d) family member, not an Article 3.2(a) other family member. It established that dependency in the host state could suffice for the former category. It did not displace the distinct requirements governing other family members.

4. For an Article 3.2(a) other family member, the Directive requires dependency or household membership in the country from which the person has come. Regulation 8(2)(c) of the Immigration (European Economic Area) Regulations 2006 additionally requires that dependency or household membership continue after joining the EEA national in the United Kingdom. The appellant failed the former requirement.

5. Article 8 ECHR and proportionality could potentially assist an other family member. On the facts, however, refusal would not materially affect the sponsor’s exercise of Treaty rights. The appellant was an adult in good health who had not shown an inability to support himself in Macedonia. Refusal was proportionate and disclosed no Article 8 breach.

• Upper Tribunal (Immigration and Asylum Chamber): Held that the Immigration Judge had materially erred in law, remade the decision, and dismissed the appeal.
• First-tier Tribunal: Immigration Judge Sangha dismissed the appeal in a determination notified on 17 February 2010.