The Secretary of State for the Home Department v MR & Ors

Other family members of an EEA national cannot obtain consideration under the domestic extended-family-member regime where they do not satisfy its requirement of prior dependency or household membership in an EEA State other than the United Kingdom. The Tribunal considered that Directive 2004/38/EC, especially Article 10(2)(e), appeared to require proof of pre-entry dependency or household membership but did not expressly confine that relationship to a country in which the Union citizen had lived.

The meaning of the duty in Article 3(2) to facilitate entry and residence, and the permissible national conditions concerning dependency, were uncertain and potentially determinative. A preliminary reference to the Court of Justice of the European Union was therefore appropriate.

The Secretary of State appealed from Immigration Judge Fox’s decision of 6 April 2009. The judge had found that the respondents, who were a brother, half-brother and nephew of the spouse of an Irish worker in Northern Ireland, were dependent. He directed that their applications be considered for the discretionary issue of residence cards.

The respondents were not direct family members under the domestic Regulations. They relied on the extended-family-member provisions of the Immigration (European Economic Area) Regulations 2006. They had entered from Bangladesh and had not previously been dependent on, or members of the household of, the Union citizen in another EEA State.

The central issue was whether Article 3(2) of Directive 2004/38/EC required the United Kingdom to facilitate their residence despite the terms of the domestic Regulations, and what conditions Member States could lawfully impose upon other family members.

1. Reference ordered. The Tribunal set aside the Immigration Judge’s decision if it had not already been set aside. It did not finally determine the Secretary of State’s appeal. Instead, it referred six questions to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union.

2. On the domestic legislation, the respondents could not qualify as extended family members. Regulation 8 required the relevant dependency or household relationship to be in an “EEA State”. Regulation 2 defined that expression as a Member State other than the United Kingdom. The respondents had not lived with, or been dependent upon, the Union citizen or her spouse in such a State. Their post-entry dependency could not satisfy the plain words of the Regulations.

3. The Tribunal accepted that there was evidence on which the Immigration Judge could find factual dependency. That finding did not resolve the separate question whether the respondents were eligible for an EU residence document as other family members.

4. Article 3(2) of Directive 2004/38/EC required the host State to facilitate entry and residence for specified other family members. Article 10(2)(e) indicated that dependency or household membership must precede admission and be established by material from the country of origin or country from which the applicant arrived. The Directive did not, however, expressly require dependency in the country from which the Union citizen had most recently moved, nor did it clearly resolve whether facilitation created enforceable substantive rights or a broad national discretion.

5. The Tribunal found material uncertainty in the national authorities concerning the place, timing, nature and duration of dependency, and concerning the extent to which national legislation could impose conditions designed to prevent contrived or unnecessary dependency. Those questions were determinative and could not be resolved with complete confidence. The reference was also justified by the substantial number of similar pending cases.

• Upper Tribunal (Immigration and Asylum Chamber): made a preliminary reference to the Court of Justice of the European Union under Article 267 of the Treaty on the Functioning of the European Union.
• Immigration Judge: on 6 April 2009 allowed the respondents’ appeals to the extent of remitting their applications for decisions on the merits of their claims as dependent family members of an EEA national. The Upper Tribunal set aside that decision if it had not already been set aside.