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

An applicant seeking consideration as an other family member under the Immigration (European Economic Area) Regulations 2006 must prove, on the balance of probabilities, the asserted dependency or household membership before entering the United Kingdom. In an in-country application, the Tribunal should scrutinise the supporting evidence carefully. A claimed history of financial support, shared household and inability to meet essential living needs may require reliable documentary corroboration, particularly where the account contains substantial gaps, implausibilities, inconsistencies, or evidence of misleading immigration officials.

The appellants, Nigerian nationals, claimed that they were the dependants of, or members of the household of, their cousin, an EU citizen exercising Treaty rights in the United Kingdom. They said that he had supported them in Nigeria and that they had lived in his Lagos household before their entry to the United Kingdom.

The First-tier Tribunal had dismissed their appeals. The Upper Tribunal had set that decision aside on 22 August 2011 and directed a resumed hearing to remake the decisions after receiving evidence. The central issue was whether the appellants had proved eligibility as other family members before their arrival in the United Kingdom.

1. Appeals dismissed. The Tribunal remade the decisions after setting aside the earlier First-tier Tribunal determinations. It held that neither appellant had proved, on the balance of probabilities, that before entering the United Kingdom they had been either dependants of the sponsor or members of his household for the purposes of the Immigration (European Economic Area) Regulations 2006 (paras [3], [8], [18], [25]).

2. The burden was on the appellants to establish eligibility as other family members. In an in-country application, that burden required careful scrutiny of the evidence, especially where the relevant history occurred abroad and the applicants had an immigration history suggesting that they had misrepresented their intentions to immigration officials (paras [3], [21]-[22]).

3. The evidence did not establish the alleged dependency. There was no reliable documentary evidence of remittances, the sponsor’s earnings, rent or occupation of the Lagos premises, educational payments, apprenticeships, or the appellants’ essential living needs. The asserted explanation based on customary practice did not account for the complete absence of material corroboration. The reference in Article 10(2)(e) of the Citizens Directive to an official document was consistent with expecting supporting material where the claimed relationship and dependency required proof (para [21]).

4. The oral accounts were also materially implausible and inconsistent. Tonia Moneke’s entry-clearance account conflicted with her asserted lack of self-sufficiency, and both appellants had falsely represented an intention to make only a temporary visit. Any later cohabitation with the sponsor in the United Kingdom could not establish the required pre-entry eligibility (paras [13], [17]-[18], [23]). Since eligibility failed, there was no need to remit the matter for the discretionary consideration under regulation 17 (para [8]).

• Upper Tribunal (Immigration and Asylum Chamber): On 22 August 2011, it set aside the First-tier Tribunal’s dismissal and directed that the appeals be remade after further evidence. The earlier related determination is cited as [2011] UKUT 00341 (IAC).

• Upper Tribunal (Immigration and Asylum Chamber): On remaking the decisions, it dismissed both appeals because eligibility as other family members under the Immigration (European Economic Area) Regulations 2006 had not been proved.

• First-tier Tribunal: The appeals had initially been dismissed; its decision was set aside by the Upper Tribunal. No citation is stated in the judgment.