Soares v Secretary of State for the Home Department

For an extended family member under Immigration (European Economic Area) Regulations 2006, regulation 8(2)(c) incorporates regulation 8(2)(a)’s requirement that, before joining the United Kingdom, the applicant was dependent on, or a member of the household of, the EEA national. Dependence on, or household membership of, the EEA national’s spouse is insufficient where that spouse is not an EEA national. Article 3(2) of Directive 2004/38/EC leaves facilitation of other family members to national law and does not require the broader approach previously found in Directive 73/148/EEC. A purposive appeal to family unity or freedom of movement cannot overcome the express terms of regulation 8(2).

The Brazilian appellant was the dependant and household member of his aunt, who had married an Italian national. He claimed a residence card as an extended family member under the Immigration (European Economic Area) Regulations 2006. The Secretary of State refused the application because he had not been dependent on, or a member of the household of, the EEA national before coming to the United Kingdom.

The First-tier Tribunal dismissed the appeal. The Upper Tribunal upheld that decision after finding that the appellant had not been dependent on, or a member of the household of, the Italian national in Brazil. The central issue before the Court of Appeal was whether regulation 8(2)(c) could extend to a person dependent on, or living in the household of, a non-EEA spouse of an EEA national.

The appeal was dismissed. Lord Justice Davis gave the leading judgment. Lord Justices McFarlane and Longmore agreed.

1. Regulation 8 requirements. Regulation 8(2)(a) expressly requires an applicant to have been residing in an EEA State in which the EEA national also resided and to have been dependent upon that EEA national or a member of that national’s household. Regulation 8(2)(c) incorporates those requirements, together with the requirement of continuing dependence or household membership at the date of application.
2. Identity of the relevant person. The requirement concerns dependence on, or household membership of, the EEA national. It does not extend to dependence on, or household membership of, the EEA national’s spouse where that spouse is not an EEA national. The appellant had been dependent on and a member of the household of his aunt, but she was not an EEA national. The tribunal had rejected the asserted dependence on her husband in Brazil. His later membership of the husband’s United Kingdom household could not cure that earlier failure.
3. Directive interpretation. Article 2(2) of Directive 2004/38/EC expressly refers to relatives and dependants of the Union citizen’s spouse or partner. Article 3(2), dealing with other family members, refers instead to persons dependent on, or members of the household of, the Union citizen and leaves facilitation to national law. The United Kingdom was not obliged to extend regulation 8 beyond that scheme and had chosen not to do so.
4. Authorities and purposive construction. Jia v Migrationsverket (Case C-1/05; [2007] QB 545) concerned the differently worded Directive 73/148/EEC and did not govern the present issue. Rahman (Case C/83-11; [2013] QB 249) confirmed the need for the relevant dependence or household membership both in the country of origin and at the application date, but its broader purposive approach did not displace the express wording. Aladeselu v SSHD ([2013] EWCA Civ 144) concerned a different interpretive issue. The Upper Tribunal therefore reached the correct conclusion in law.

• Court of Appeal (Civil Division): [2013] EWCA Civ 575. Appeal dismissed.
• Upper Tribunal (Immigration and Asylum Chamber): Determination promulgated on 18 April 2012. The tribunal found that the appellant had not been dependent on, or a member of the household of, the EEA national in Brazil and dismissed the appeal.
• First-tier Tribunal: Determination promulgated on 2 November 2011. The tribunal dismissed the appeal against the Secretary of State’s refusal of a residence card.