Aladeselu & Ors v Secretary of State for the Home Department

An extended family member may satisfy regulation 8(2)(c) even if that person entered the United Kingdom before the relevant EEA national and applied substantially later. The words “has joined” impose no requirement of contemporaneous or recent arrival.

Dependency must have existed in the country from which the family member came and must continue at the date of the application. The applicant need not remain in that country until applying. Satisfaction of regulation 8 is only a threshold condition. It confers no substantive right of residence; the Secretary of State retains a broad discretion under regulation 17(4), exercised after the examination required by regulation 17(5).

Three Nigerian citizens applied for residence cards as extended family members of their Dutch first cousin under regulation 8 of the Immigration (European Economic Area) Regulations 2006. They had lived with and depended financially on her in Nigeria. They entered the United Kingdom before her, but their dependency continued without interruption.

The Secretary of State refused their applications. The First-tier Tribunal dismissed their appeals, but the Upper Tribunal set that decision aside and found that regulation 8 was satisfied. It left the Secretary of State to exercise the separate discretion whether to issue residence cards.

The Secretary of State appealed, contending principally that Case C-83/11, Rahman, required broadly contemporaneous or recent arrival in the host state. The central issue was whether regulation 8(2)(c) imposed such a temporal restriction.

1. The Secretary of State’s appeal was dismissed. Regulation 8(2)(c) contained three relevant elements, all of which the applicants satisfied.

2. First, each applicant had previously satisfied regulation 8(2)(a). While living in Nigeria, each was dependent on the EEA national and was also a member of her household. The past tense in regulation 8(2)(c) required the condition in paragraph (a) to have been satisfied at an earlier time.

3. Secondly, each applicant “has joined” the EEA national in the United Kingdom. That expression imposes no temporal limitation. It does not matter whether the relative or the EEA national arrives first, and it contains no requirement of contemporaneous or recent arrival. The approach in Case C-127/08, Metock, was inconsistent with excluding persons solely because they entered the host state before the EEA national.

4. Thirdly, each applicant continued to be dependent on the EEA national. Their dependency had remained unbroken from Nigeria through to the date of application.

5. Case C-83/11, Rahman, required dependency in the country from which the family member came and dependency at the date of application. Its reference to dependency in that country when an applicant applied to join the Union citizen reflected applications made from outside the host state. It did not establish a universal requirement that dependency at the application date must still be situated in the country of origin.

6. The possibility that advance arrival by dependent relatives might affect a Union citizen’s exercise of free-movement rights was sufficient when interpreting the threshold condition. The importance of the relatives’ presence in the particular case could be assessed at the subsequent discretionary stage.

7. Satisfaction of regulation 8 conferred no substantive right of residence. Under regulations 17(4) and 17(5), the Secretary of State retained a broad discretion whether to issue residence cards and had to undertake an extensive examination of the applicants’ personal circumstances. Relevant matters could include the extent of dependency, unlawful presence, and the importance of the applicants’ residence to the sponsor’s exercise of free-movement rights.

Davis LJ and Pill LJ agreed that the appeal should be dismissed. Davis LJ reserved his opinion on whether the Secretary of State’s concession concerning the effect of Metock on extended family members was correct.

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was dismissed in [2013] EWCA Civ 144. The court upheld the Upper Tribunal’s finding that regulation 8 was satisfied.

2. Upper Tribunal (Immigration and Asylum Chamber): The tribunal set aside the First-tier Tribunal’s decision and allowed the applicants’ appeals to the extent of finding that regulation 8 was satisfied. It left the Secretary of State to exercise the discretion under regulations 17(4) and 17(5).

3. First-tier Tribunal: IJ Hodgkinson dismissed the applicants’ appeals against the refusal of residence cards.