Oboh & Ors v Secretary of State for the Home Department

Article 3(2)(a) of Directive 2004/38/EC requires an other family member seeking preferential treatment to have been dependent on, or a member of the household of, the Union citizen in the country from which that person came. Dependency or household membership acquired only after arrival in the host Member State does not satisfy that threshold.

A purposive interpretation cannot displace clear words delimiting a privileged category. The Directive promotes free movement and residence, rather than family reunion. Exceptional circumstances may engage other legal principles, but do not alter the general scope of Article 3(2)(a).

The appellants were non-EEA nationals who applied for residence cards as extended family members of Union citizens exercising Treaty rights in the United Kingdom. The Oboh family relied on dependence on, and membership of the household of, Alexander Oboh’s German brother after their arrival from Italy. Mr Haulader relied on dependence on, and residence with, his EEA-national sister-in-law after arriving in the United Kingdom.

The First-tier Tribunal dismissed their appeals. In the Oboh case, the Upper Tribunal re-determined the matter after finding an error of law, but again dismissed it because pre-arrival dependency had not been proved. The Upper Tribunal also dismissed Mr Haulader’s appeal.

The common issue was whether Article 3(2)(a) of Directive 2004/38/EC covers dependency or household membership arising only after arrival in the host Member State.

1. The appeals were dismissed. The plain and natural meaning of Article 3(2)(a) of Directive 2004/38/EC confines preferential treatment to other family members who were dependants of, or household members of, the Union citizen in the country from which they came. The words are important limits on the qualifying category.
2. The Court’s reading was strongly supported by Rahman [2013] QB 249. It establishes that dependency must exist in the country from which the applicant comes when the applicant seeks to join the Union citizen. The decision in Aladeselu [2013] EWCA Civ 144 did not assist the appellants. It addressed relatives who had arrived in the host State before the Union citizen, but still recognised both the country-of-origin and application-date requirements.
3. The different treatment of Article 2 family members and Article 3(2) other family members was material. The former have rights to accompany or join the Union citizen. The latter have a privileged right to facilitation, including an extensive examination and reasons for refusal, but no automatic right of entry or residence.
4. The Court rejected the proposed purposive construction. The Directive seeks to remove deterrents to free movement and residence; it is not a family-reunion measure. A wider category might advance that policy, but purposive interpretation cannot replace the Directive’s express criteria. The effectiveness principle applies only where the provision admits more than one interpretation.
5. Hard cases, including a dependent child who has never lived outside the host State, did not justify changing a rule of general application. Such persons may make ordinary immigration applications and exceptional cases may engage Article 8 of the European Convention on Human Rights.
6. No preliminary reference was required under Article 267 TFEU. The Directive’s language, structure, and the CJEU authorities supplied a clear answer.

• Court of Appeal (Civil Division): Dismissed the appeals from the Upper Tribunal.
• Upper Tribunal (Immigration and Asylum Chamber): In the Oboh appeal, re-determined the case after identifying an error of law in the First-tier Tribunal’s approach, but dismissed it. In Mr Haulader’s appeal, dismissed the appeal from the First-tier Tribunal.
• First-tier Tribunal: Dismissed the appeals against the Secretary of State’s refusals of residence cards.