RK v The Secretary of State for the Home Department

For an other family member under Citizens Directive 2004/38/EC, dependency and membership of the Union citizen’s household are alternative bases for facilitated entry and residence. Household membership requires actual residence with the Union citizen in the same household. Ownership of the accommodation by the Union citizen or a relative is insufficient.

Dependency is a distinct factual question. It may be established by evidence from the applicant’s country of origin under Article 10(2)(e), and does not require prior residence in an EEA State or co-residence with the Union citizen. The expression “country from which they have come” in Article 3(2) must be construed with Article 10(2)(e), rather than confined to the country in which the Union citizen lived before moving to the host State.

The appellant, an Indian national, applied for an EEA family permit to join her husband in the United Kingdom. Her Portuguese mother-in-law and father-in-law had moved to the United Kingdom exercising free-movement rights. The appellant lived in India in a house owned by her parents-in-law and said that she was financially supported by them and by her husband.

The Entry Clearance Officer and the Immigration Judge rejected the application under Immigration (European Economic Area) Regulations 2006. The appeal raised whether she qualified as an other family member under Article 3(2) of the Citizens Directive 2004/38/EC, either through membership of the household or dependency, despite having remained in India.

1. The appeal was allowed. The Immigration Judge’s determination was set aside for a material error of law and the case was remitted to the Secretary of State for reconsideration.

2. Article 3(2)(a) of the Citizens Directive 2004/38/EC had to be read with Article 10(2)(e). The phrase “country from which they have come” was not confined to the country where the other family member had lived with the Union citizen before the latter exercised free-movement rights. Eligibility based on dependency could be proved by documents from the applicant’s country of origin or the country from which the applicant was arriving.

3. Membership of the Union citizen’s household and dependency were distinct alternatives. A household claim required past residence with the Union citizen in the same country and household. The appellant had not lived in her mother-in-law’s household. Residence in a house owned by her father-in-law did not establish that requirement.

4. Dependency required a factual assessment of economic dependence. It did not require the applicant to have lived with the Union citizen or in an EEA State. The appellant’s evidence that she lived in accommodation provided by her parents-in-law created a possible case of dependency which had not been examined.

5. If dependency were established, there was a reasonable possibility that discretion under Regulation 17 should be exercised in her favour. Reconsideration was also appropriate because the Immigration Judge had been mistaken about when the appellant’s husband could obtain permanent residence, a matter potentially relevant to her admission under the ordinary Immigration Rules.

The Tribunal doubted, without finally deciding, that a dependant other family member must have lived in the same country as the Union citizen shortly before the latter exercised free-movement rights.

• Upper Tribunal (Immigration and Asylum Chamber): Allowed the appeal, set aside the Immigration Judge’s dismissal for material error of law, and remitted the matter to the Secretary of State for reconsideration.
• Immigration Judge: Dismissed the appeal against the refusal of an EEA family permit.
• Entry Clearance Officer: Refused the appellant’s application for an EEA family permit.