AA (Algeria) v The Secretary of State for the Home Department

Under Article 3.2 of the Citizens' Directive and regulation 8(2) of the Immigration (European Economic Area) Regulations 2006, an extended family member must, before coming to the United Kingdom, have been dependent on, or a member of the household of, the EEA national. Dependency on, or household membership with, the EEA national's spouse is insufficient. The wider definition of relevant EEA national in regulation 8(6) does not alter that requirement. Article 38(3) does not preserve broader provisions in a repealed directive. Clear statutory and directive wording cannot be expanded through purposive interpretation merely because a wider category might advance free movement objectives.

The appellant, an Algerian citizen, appealed against an Upper Tribunal determination dismissing his appeal concerning refusal of a residence card under the Immigration (European Economic Area) Regulations 2006. He claimed to be an extended family member of his brother's Italian wife because he had allegedly been dependent on her, or had been a member of her household, before coming to the United Kingdom.

The First-tier Tribunal rejected the evidence of prior dependency and found that the appellant had lived in his parents' household, not his brother's household. The central issues were whether regulation 8(2) extended to dependency on or household membership with an EEA national's spouse, and whether the former Directive 73/148/EEC could affect the interpretation of Article 3.2 of the Citizens' Directive.

Appeal dismissed. Lord Justice Sullivan gave the principal judgment. Lord Justice Davis and Lady Justice King agreed. The application for a reference to the CJEU was refused. The appeal was dismissed with costs, and permission to appeal to the Supreme Court was refused.

1. Regulation 8(2) of the Immigration (European Economic Area) Regulations 2006 faithfully reflects Article 3.2 of the Citizens' Directive. The relevant pre-entry relationship is dependency on, or membership of the household of, the EEA national. The wording does not include the EEA national's spouse. The court followed the clear conclusion in Soares v Secretary of State for the Home Department [2013] EWCA Civ 537.
2. Regulation 8(6) does not enlarge regulation 8(2). Relevant EEA national is a separate term of art which operates in relation to a person who already satisfies one of the conditions for being an extended family member. The contrast with regulations 16(5) and 17(4), which expressly use that wider expression, reinforced the conclusion.
3. Article 38(3) of the Citizens' Directive merely directs that references to repealed provisions be construed as references to the new Directive. It does not mean that the new provisions have the same content as the repealed provisions. The broader wording of Article 1.2 of Directive 73/148/EEC could not therefore be imported into Article 3.2 or regulation 8(2).
4. The court applied the approach in Oboh and others v Secretary of State for the Home Department [2013] EWCA Civ 1525: purposive interpretation cannot override clear language and substitute wider criteria. In any event, the evidence did not establish dependency on the appellant's brother or his wife. Living in the parental household was not membership of the brother's household.
5. Article 3.2 was sufficiently clear for no reference to the CJEU to be necessary.

• Court of Appeal (Civil Division): On 16 December 2014 dismissed the appeal from the Upper Tribunal, refused a reference to the CJEU, ordered costs to be assessed if not agreed, and refused permission to appeal to the Supreme Court.
• Upper Tribunal (Immigration and Asylum Chamber): On 8 May 2013 dismissed the appellant's appeal against the First-tier Tribunal's determination.
• First-tier Tribunal: On 8 January 2013 dismissed the appeal against the Secretary of State's decision dated 8 October 2012 refusing a residence card.