Oluwatobi Olalekan Ewulo v The Secretary of State for the Home Department

Where an extended family member has entered the United Kingdom using an EEA family permit issued after the examination required by Immigration (European Economic Area) Regulations 2006, a later residence-card application falls to be determined under regulation 7(3). Unless the Secretary of State challenges the validity of the permit or revokes it, the application does not permit a fresh examination of pre-entry dependency.

The material question is whether, after entry, the permit-holder continues to satisfy regulation 8(2) in relation to a qualified EEA national. If those conditions are met, regulation 7(3) requires the person to be treated as the EEA national’s family member, and a residence card must be issued under regulation 17(1).

Oluwatobi Olalekan Ewulo, a Nigerian national, entered the United Kingdom in October 2010 using an EEA family permit granted by the Entry Clearance Officer to enable him to join his German-national uncle. He then applied for a residence card.

The Secretary of State refused the application. The First-tier Tribunal dismissed the ensuing appeal, despite finding that the sponsor was exercising Treaty rights, that the appellant lived in the sponsor’s household in the United Kingdom, and that the sponsor had paid school fees. It re-examined whether the appellant had been dependent on, or a member of the household of, the sponsor before entry.

The appeal concerned the effect of the unrevoked family permit under the Immigration (European Economic Area) Regulations 2006 and the proper scope of the later residence-card inquiry.

1. Appeal allowed. The First-tier Tribunal made a material error of law. Its decision was set aside and remade by allowing the appeal.

2. Regulation 7(3) governed a residence-card application by an extended family member who had been issued with, and had used, an EEA family permit. A person in that position must be treated as the family member of the relevant EEA national while the permit remains valid and unrevoked and the person continues to satisfy regulation 8(2).

3. The Entry Clearance Officer had granted the permit after the inquiry required by regulation 12. The Secretary of State neither contended that it had been invalidly issued nor sought its revocation. In those circumstances, it was for the Secretary of State to raise and substantiate any ground of invalidity or revocation. The judge therefore had no occasion to revisit historic dependency before entry, which was an issue on which the Entry Clearance Officer must have been satisfied.

4. The proper later inquiry was narrower: whether the appellant continued to meet regulation 8(2) and whether the sponsor remained a qualified person. The First-tier Tribunal had found that the appellant had joined the sponsor’s household in the United Kingdom and that the sponsor was in remunerative employment. Those findings satisfied the relevant continuing conditions.

5. Accordingly, regulation 7(3) required the respondent to treat the appellant as the family member of a qualified person. Under regulation 17(1), issue of a residence card was mandatory. The Tribunal directed its issue.

• Upper Tribunal (Immigration and Asylum Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision for material error of law, remade it, and directed issue of a residence card.
• First-tier Tribunal: on 16 June 2011, dismissed the appeal against the refusal to issue an EEA residence card.