The Secretary of State for the Home Department v Adepoju Oladapo Ihemedu

An other family member under Article 3(2) of the Directive 2004/38/EC is a residual category. It may include any relative, including a cousin, provided there are significant factual ties with the Union citizen.

An extended family member must prove a prior connection abroad through dependency or membership of the Union citizen’s household. A person who bypasses the family-permit process cannot obtain any relaxation of the ordinary burden of proof. A residence card under regulation 17(4) of the Immigration (European Economic Area) Regulations 2006 remains discretionary. If that discretion has not been exercised, a tribunal may allow an appeal only as not in accordance with the law and must leave the discretion to the Secretary of State.

The claimant, a Nigerian national, applied for a residence card as the cousin and extended family member of a Belgian national exercising Treaty rights in the United Kingdom. The Secretary of State refused the application because the claimed relationship and dependency were insufficiently evidenced.

The First-tier Tribunal found that the parties were cousins, that they lived together in the United Kingdom, and that the claimant was dependent on the sponsor. It therefore held that he was entitled to a residence card. The Secretary of State appealed, contending that the judge had failed to determine prior dependency abroad and had treated entitlement to a residence card as automatic.

The Upper Tribunal set aside that decision and remade it. The central question was whether the claimant had proved the prior dependency or household connection required of an extended family member.

1. The Secretary of State’s appeal was allowed. The First-tier Tribunal had materially erred by failing to decide whether the claimant had been dependent on, or a member of the household of, the sponsor before arriving in the United Kingdom. A summary of disputed evidence could not substitute for findings on those issues.

2. The claimant was capable in principle of being an other family member. Article 3(2) of the Directive 2004/38/EC creates a residual category of relatives which is not confined to specified degrees of kinship. A cousin can therefore qualify, subject to proof of the required factual connection. The Upper Tribunal preserved the First-tier Tribunal’s finding that the claimant was the sponsor’s cousin.

3. The claimant nevertheless failed to establish the prior connection required by regulation 8(2) of the Immigration (European Economic Area) Regulations 2006. The evidence did not satisfactorily prove prior dependency or prior household membership after the sponsor became an EEA national. The limited documents did not show that the sponsor headed the household or had the means to provide the asserted support.

4. The claimant’s failure to apply abroad for a family permit did not reduce his evidential burden. It had prevented the United Kingdom authorities from undertaking the extensive examination of personal circumstances and documentation contemplated by regulation 12(3).

5. The First-tier Tribunal had also erred in treating extended-family-member status as creating an entitlement to a residence card. Regulation 17(4) confers a discretion on the Secretary of State. Where it has not been exercised, the proper limited tribunal outcome is to allow the appeal as not in accordance with the law and leave the discretionary decision to the Secretary of State.

6. The decision was remade by dismissing the claimant’s appeal against refusal of a residence card.

• Upper Tribunal (Immigration and Asylum Chamber): The Secretary of State’s appeal was allowed. The First-tier Tribunal decision was set aside and the claimant’s residence-card appeal was dismissed.
• First-tier Tribunal: Immigration Judge Somerville, in a determination notified on 21 January 2011, allowed the claimant’s appeal and held that he was entitled to a residence card.