Fatima & Ors v The Secretary of State for the Home Department

The facilitation regime for extended family members requires dependency on the relevant Union citizen. It does not extend to dependency solely on that citizen’s non-Union spouse. Authorities concerning the source of a Union citizen’s sufficient resources, or the consequences of falling within the facilitation regime, do not alter that construction. A derived right of residence based on a Union citizen’s free-movement rights arises only where residence of the non-Union family member is necessary to secure the effective exercise of those rights. It is insufficient that the Union citizen could voluntarily join the family member outside the Union.

Three Pakistani nationals appealed against the Upper Tribunal’s refusal of their applications for residence cards as family members of an EEA national. The First-tier Tribunal had allowed their appeals, but the Upper Tribunal set that decision aside and remade the decision by refusing them.

The first appellant, the mother of the other appellants, was accepted to have been a direct family member whose residence right survived her son’s divorce from an EEA national. Her appeal was nevertheless academic because she had later obtained permanent residence. The central issues for the other two appellants were whether they were extended family members through dependency on the EEA national’s non-EEA spouse, and whether their residence was necessary to protect Hammad’s exercise of EU free-movement rights.

1. Disposition. The first appellant’s appeal was dismissed as academic because her later grant of permanent residence made the disputed basis of residence immaterial. The appeals of the second and third appellants were dismissed on both grounds advanced.
2. Regulation 8(2)(c) of the Immigration (European Economic Area) Regulations 2006 is clear. An extended family member who has joined an EEA national in the United Kingdom must continue to be dependent on the EEA national. The provision does not include dependency on the EEA national’s non-EEA spouse.
3. Singh v Minister of Justice and Equality Case C-218/14, [2015] 3 WLR 1311, concerned the source of the sufficient resources required by article 7(1)(b) of the Citizens Directive. It did not concern dependency and could not assist in construing article 3(2)(a). Secretary of State for the Home Department v Banger Case C-89/17, [2019] 1 CMLR 6, was likewise unhelpful: the consequences of falling within the article 3(2) facilitation regime could not determine its scope.
4. The court did not need to decide whether, even if the appellants had qualified before the divorce, retention under regulations 10(1) and 10(5)(a) additionally required a positive exercise of discretion and the issue of a residence card under regulation 17(4).
5. The asserted derived right based on Hammad’s cross-border work also failed. The principles in Zambrano v Office national de l’emploi Case No C-34/09, [2012] QB 265, Carpenter v Secretary of State for the Home Department Case C-60/00, [2003] QB 416, and S v Minister voor Immigratie, Intergatie en Asiel Case C-457/12, [2014] QB 1207, require residence to be necessary to secure the Union citizen’s effective exercise of free-movement rights. There was no evidential basis for concluding that the appellants’ departure would discourage Hammad from travelling or working within the Union. He could voluntarily join them in Pakistan, but was not compelled to do so.

Lord Justice Coulson and Lady Justice Rafferty agreed with Lord Justice Hickinbottom.

• Court of Appeal (Civil Division): The appeals were dismissed. The first appellant’s appeal was academic following her grant of permanent residence; the second and third appellants failed on both grounds.
• Upper Tribunal (Immigration and Asylum Chamber): Deputy Upper Tribunal Judge D N Harris set aside the First-tier Tribunal’s determination and, on 5 January 2016, remade the decision by refusing the appellants’ appeals against the Secretary of State’s refusals.