Sheikar Amith Roy Dauhoo v The Secretary of State for the Home Department

Under Immigration (European Economic Area) Regulations 2006, reg 8(2), an extended family member must establish a relevant connection with the EEA national both before entering the United Kingdom and after joining that national there. At each stage, dependency and membership of the EEA national’s household are alternatives.

The prior and present connections need not be of the same kind. Qualification may therefore rest on prior dependency and present household membership, or prior household membership and present dependency. A claimant who cannot establish either prior dependency or prior household membership does not qualify, even if present household membership is proved.

The appellant, a Mauritian national, appealed against the First-tier Tribunal’s dismissal of his appeal from the refusal of a residence card. He claimed to be an extended family member of his EEA-national sister through dependency and, alternatively, to be in a durable relationship with an EEA-national partner.

The First-tier Tribunal rejected his evidence of financial dependency in Mauritius and the United Kingdom. It accepted that his partner lived in the same household, but was not satisfied that their relationship was durable. It also rejected his Article 8 claim.

Before the Upper Tribunal, the respondent accepted that the appellant’s present membership of his sister’s household met the United Kingdom limb of reg 8(2)(c). The central issue was whether the regulation required the prior and present connections to be in the same capacity, and whether any error in the First-tier Tribunal’s reasoning was material.

1. Appeal dismissed. The First-tier Tribunal’s decision contained no material error of law and was not set aside.

2. Reg 8(2) of the Immigration (European Economic Area) Regulations 2006 requires an applicant already in the United Kingdom to satisfy both the prior condition in reg 8(2)(a) and the present condition in reg 8(2)(c). At either stage, dependency and household membership are alternatives, not cumulative requirements.

3. There are four permissible combinations: prior and present dependency; prior and present household membership; prior dependency with present household membership; and prior household membership with present dependency. The word “continues” in reg 8(2)(c) does not require the connection in the United Kingdom to be in the same category as the connection abroad. That construction accords with the purposive implementation of Article 3(2)(a) of Directive 2004/38/EC.

4. The First-tier Tribunal should therefore have recognised that the appellant’s present household membership could satisfy reg 8(2)(c), despite its rejection of present dependency. The error was immaterial. The appellant had not shown either dependency on his sister or membership of her household in Mauritius, and consequently failed the prior condition in reg 8(2)(a).

5. The Tribunal upheld the adverse credibility assessment. The sparse and deficient documentary evidence did not establish prior dependency. An applicant who does not seek a family permit from abroad cannot expect a relaxation of the burden of proving an asserted EEA right after arrival.

6. The durable-relationship ground also failed. Cohabitation is not indispensable and no fixed two-year period is imposed by EU law. However, the evidence did not establish a durable relationship before the First-tier Tribunal. The Article 8 conclusion was likewise open on the findings of fact.

• Upper Tribunal (Immigration and Asylum Chamber): dismissed the appeal and upheld the First-tier Tribunal’s determination.

• First-tier Tribunal: dismissed the appeal against the refusal of a residence card and rejected the Article 8 claim.