Tonia Oby Moneke & Anor v The Secretary of State for the Home Department

Under Article 3(2) of the Directive 2004/38/EC, dependency on an EEA national and membership of that national’s household are alternative routes to treatment as an other family member. An applicant must establish the relevant status before coming to the United Kingdom, and at a time when the sponsor was already an EEA national.

Household membership requires prior residence under the sponsor’s roof. Financial dependency does not require the applicant and sponsor to have lived in the same country. It is enough that material support from the EEA national met the applicant’s essential living needs in the country of origin or other country from which the applicant arrived.

Eligibility under regulation 8 is distinct from the discretionary decision under regulation 17(4) of the Immigration (European Economic Area) Regulations 2006.

The appellants, Nigerian cousins of a German national exercising Treaty rights in the United Kingdom, appealed against the refusal of residence cards as dependent other family members under regulation 8 of the Immigration (European Economic Area) Regulations 2006.

The First-tier Tribunal accepted that they had received support from their sponsor, but dismissed their appeals because they had not lived with him in Germany, the country from which he came to the United Kingdom. It treated Bigia & Ors [2009] EWCA Civ 79 as requiring that result.

The Upper Tribunal considered whether Article 3(2) of the Directive 2004/38/EC requires an other family member who relies on dependency to have lived in the same country as the EEA-national sponsor before entry to the United Kingdom, and whether the evidence established genuine financial dependency.

1. The appeals succeeded on error of law. The First-tier Tribunal’s decision was set aside. Its conclusion that prior residence in the same country as the sponsor was indispensable to dependency under Article 3(2) was erroneous.

2. Article 3(2) identifies two alternative bases for other-family-member status: dependency on the Union citizen, or membership of that citizen’s household. Both must exist before the applicant’s arrival in the United Kingdom and must be referable to a sponsor who was an EEA national at the material time.

3. Membership of the household retains the meaning stated in KG (Sri Lanka) [2008] EWCA Civ 13 and Bigia & Ors [2009] EWCA Civ 79. It requires living for a period beneath the roof of a household that was that of the EEA national while he or she held that nationality. It therefore entails prior co-residence in the same country, although that country need not be an EEA state.

4. Dependency is different. The Directive does not impose a geographical nexus requiring the dependent and EEA national to have lived in the same country. Material remittances may establish dependency if they met the applicant’s essential needs in the country of origin or another country from which the applicant came. The Tribunal treated the geographical restrictions in regulation 8(2)(a) as inconsistent with Article 3(2).

5. Receipt of financial help alone is insufficient. The applicant must provide cogent, preferably documented evidence of the level, duration and effect of support, enabling an assessment of whether it met essential needs. The evidence here did not establish when the sponsor acquired German nationality, the relevant remittances, the appellants’ financial circumstances, or whether support met essential needs.

6. Questions of immigration history, abuse and the practical effect on Treaty rights do not determine whether regulation 8’s material scope is met. They may instead bear on the discretion to issue a residence card under regulation 17(4). The Tribunal directed a further hearing to remake the decision after fuller fact-finding.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeals on error of law, set aside the First-tier Tribunal’s decision, and directed a further hearing to remake the decision.
• First-tier Tribunal: dismissed the appeals from the Secretary of State’s refusal to issue residence cards, treating Bigia & Ors [2009] EWCA Civ 79 as requiring prior residence with the sponsor in Germany.