EO (Nigeria) v Secretary of State for the Home Department

For an other family member under the Directive 2004/38/EC, the host Member State must conduct an extensive examination of personal circumstances and justify any refusal. The obligation does not create an automatic right of residence.

Documents required by article 10.2, including a foreign-authority certificate under article 10.2(e), are necessary but not sufficient. They do not establish the underlying facts or entitlement, and authenticity gives no enhanced evidential status. Household membership requires a sufficiently recent nexus between sponsor and family member. Dependency concerns meeting essential needs; rent-free accommodation and financial benefit alone are insufficient.

The appellant, a Nigerian national, sought a residence card as the other family member of her Austrian sister, who was exercising treaty rights in the United Kingdom. She relied on a certificate from Oredo Local Government Council stating that she had been a member of her sister’s household in Nigeria. She also relied on her continuing membership of her sister’s household and dependency in the United Kingdom.

The First-tier Tribunal rejected the claim under the Directive, finding no past household membership or dependency. The Upper Tribunal accepted that the certificate complied with article 10.2(e), but held that it was not conclusive and did not create a presumption. It accepted current United Kingdom household membership but rejected the Nigerian household and dependency claims. The central issue before the Court of Appeal was whether the Upper Tribunal had erred in law.

The appeal was dismissed. Lord Justice Maurice Kay gave the judgment. Lord Justice McFarlane and Lord Justice McCombe agreed.

1. Nature of the right. Article 3.2 of the Directive 2004/38/EC requires the host Member State to facilitate entry and residence for an other family member by undertaking an extensive examination of personal circumstances and justifying any refusal. It does not require an automatic grant of residence. Secretary of State for the Home Department v Rahman [2013] 2 WLR 230 supported that approach.
2. Effect of the certificate. An article 10.2(e) certificate is necessary evidence within the procedural scheme, but it is not sufficient to establish compliance with article 3.2(a). The host State must form its own view of the facts and cannot outsource the decision to a foreign public authority. An article 10 residence card evidences, rather than confers, a right of residence. There is no rebuttable presumption in favour of the certificate, and authenticity does not enhance the evidential status of its contents. The distinction between proper issuance and truth of contents identified in Tanveer Ahmed v against Secretary of State for the Home Department [2002] UKIAT 00439 was applicable.
3. Household membership. There must be a nexus of recency between the arrival of the sponsor and the other family member, whichever arrives first, as recognised in KG (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 13 and Bigia v Entry Clearance Officer [2009] EWCA Civ 79. The three-year gap, the sponsor’s relocation to the United Kingdom and the appellant’s initial entry as a visitor strongly indicated that any Nigerian household membership had lapsed. The factual finding was unassailable.
4. Dependency. The relevant test was whether the appellant’s essential needs were being met, as explained in Jia v Migrationsverket [2007] QB 545. No minimum standard of living was prescribed. The appellant’s earnings, absence of evidence that they were insufficient for essential needs, and the fact that she received rent-free accommodation meant that financial benefit was not synonymous with dependency. The principle in SM (India) v Secretary of State for the Home Department [2009] EWCA Civ 1426 was also applied.

• Court of Appeal (Civil Division), [2014] EWCA Civ 1418: dismissed the appeal.
• Upper Tribunal (Immigration and Asylum Chamber): accepted current household membership in the United Kingdom but rejected past Nigerian household membership and dependency. It treated the Oredo certificate as necessary evidence but not conclusive proof.
• First-tier Tribunal: rejected the claim under the Directive, finding no past household membership or dependency. An alternative claim under section 8 of the ECHR was also rejected but was no longer pursued.