Temilola Opeyemi Aladeselu & Ors v The Secretary of State for the Home Department

For an other or extended family member under regulation 8 of the Immigration (European Economic Area) Regulations 2006, the requirement to accompany or join an EEA national does not require the family member to have arrived in the host state after the sponsor. It encompasses those arriving before or after the sponsor.

The Regulations impose no requirement that such a person be lawfully present in the United Kingdom in order to establish eligibility. Eligibility does not, however, confer an automatic right to a residence card. The Secretary of State must exercise the discretion under regulation 17(4), following the required examination of personal circumstances. The manner and timing of an applicant's arrival may be relevant to that discretionary decision.

The three Nigerian appellants had entered or remained in the United Kingdom without a lawful basis of stay. They had previously lived with, and been supported by, their Dutch national cousin in Nigeria. She later moved to the United Kingdom and exercised Treaty rights. The appellants then lived with and remained financially dependent on her.

The Secretary of State refused their applications for residence cards as extended family members. The First-tier Tribunal dismissed their appeals, holding that they could not satisfy regulation 8 because they had arrived in the United Kingdom before their EEA-national sponsor.

The Upper Tribunal considered whether prior arrival and unlawful presence prevented the appellants qualifying under regulation 8, and whether it could itself decide the unexercised discretion to issue residence cards under regulation 17(4).

1. The appeals were allowed to a limited extent. The First-tier Tribunal had materially erred in law by treating the appellants’ prior arrival in the United Kingdom as fatal to their eligibility under regulation 8. Its decision was set aside.

2. The requirement in regulation 8(2) that an extended family member accompany or join the EEA national had to be construed teleologically and consistently with the purposes of the Citizens Directive. It did not prescribe when the physical joining had to occur. It therefore covered a person who arrived before the EEA-national sponsor as well as one who arrived after that sponsor. The contrary approach in KG (Sri Lanka) [2008] EWCA Civ 13 could not govern insofar as it was inconsistent with subsequent EU-law reasoning.

3. The appellants met the dependency and household requirements of regulation 8(2). Their unlawful or illegal presence in the United Kingdom did not exclude them from qualifying as extended family members. The Immigration (European Economic Area) Regulations 2006 contained no lawful-presence condition, and the Directive did not require the United Kingdom to impose one.

4. Qualification did not itself require the issue of residence cards. Regulation 17(4) conferred a discretion, subject to the extensive examination and reason-giving requirements in regulation 17(5). The Secretary of State had refused the applications solely on eligibility grounds and had not exercised that discretion. The Tribunal could review an exercised discretion but could not exercise it for the first time.

5. The appeals were accordingly allowed only to the extent that the applications remained outstanding for the Secretary of State’s decision under regulation 17(4). The Tribunal further observed that unlawful presence, and the circumstances and timing of arrival, could be weighty considerations in that discretionary assessment, although they were not bars to eligibility.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeals to the extent that the applications remained outstanding before the Secretary of State, set aside the First-tier Tribunal decision, and held that the regulation 17(4) discretion had yet to be exercised.
• First-tier Tribunal: dismissed the appeals against the refusal of residence cards, on the basis that the appellants had arrived before their EEA-national sponsor and could not satisfy regulation 8.