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You are here: BAILII >> Databases >> United Kingdom Asylum and Immigration Tribunal >> SM (Metock; extended family members) Sri Lanka [2008] UKAIT 00075 (30 September 2008) URL: https://www.bailii.org/uk/cases/UKIAT/2008/00075.html Cite as: [2008] UKAIT 00075, [2008] UKAIT 75 |
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SM (Metock; extended family members) Sri Lanka
[2008] UKAIT 00075 (30 September 2008)
Date of hearing: 21 August 2008
Date Determination notified: 30 September 2008
SM |
APPELLANT |
and |
|
Secretary of State for the Home Department | RESPONDENT |
The ECJ did not consider the provisions of Article 3(2) of Directive 2004/38/EC, which deals with other family members, in Case C-127/08 Metock, BAILII: [2008] EUECJ C-127/08, which was concerned with a spouse. Metock has no direct relevance to the interpretation of Article 3(2). It has not overruled KG and AK (Sri Lanka
) v SSHD [2008] EWCA Civ 13, which remains good law on the meaning of that Article and its relationship with regulation 8 of the Immigration (European Economic Area) Regulations 2006. Nor does Metock overrule the whole of Case C-109/01 Akrich [2003] ECR I-9607; the court having only concluded (at paragraph 58) that paragraphs 50 and 51 of Akrich needed to be reconsidered.
"27. I accept that the appellant has provided proof of dependency inSri Lanka
, in the form of a letter from a village headman, and a GP, but also there is documentary evidence from a store in
Sri Lanka
which claims that regular financial payments were regularly sent from the sponsor to the appellant whilst living in his native country. The authenticity or genuineness of those documents was not challenged at the appeal hearing.
28. I accept that the appellant has been financially dependant upon the sponsor, and I find the appellant is still financially dependant on the sponsor, who it would appear has now undertaken financial support for the appellant, since the death of his mother in 1999.
29. I therefore accept that the appellant is dependant upon an EEA national and that he has never lived with the EEA national in Germany. I find the appellant has been dependant upon the sponsor since his arrival in the United Kingdom, and that that dependency is continuing until the present day.
30. In all the circumstances, I therefore find that the decision to refuse the application pursuant to the Immigration (EEA) Regulations 2006, is not in accordance with the law."
"8. Extended family member
(1) In these Regulations "extended family member" means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).
(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and –
(a) the person is residing in an EEA State in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;
(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household."
"(a) a member State, other than the United Kingdom;
(b) Norway, Iceland or Liechtenstein; or
(c) Switzerland;"
"12. …
(2) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if—
(a) the relevant EEA national satisfies the condition in paragraph (1)(a);
(b) the extended family member wishes to accompany the relevant EEA national to the United Kingdom or to join him there; and
(c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit."
"For the purposes of this Directive:
1) "Union citizen" means any person having the nationality of a Member State;
2) "Family member" means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);
3) "Host Member State" means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence."
"Beneficiaries
1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen;
(b) the partner with whom the Union citizen has a durable relationship, duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people".
"82. If it were necessary for the resolution of these cases to decide the issue as to the application of article 3(2)(a) to Union citizens who move other than between member states, referred to in §68 above, then subject to further argument I would be inclined to think that a reference to the ECJ might be necessary on that point. In the event, the issue does not affect the outcome of these appeals, and therefore a reference could not be justified. And, further, as demonstrated in §§ 72–80 above the appeals must fail on the facts whatever view was taken of the central issue of construction. That is another reason for a reference to be out of the question."
"(e) In cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependents or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;
(f) In cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen."
"84. Having regard to the context and objectives of Directive 2004/38, the provisions of that directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness."
"90. It must therefore be held that nationals of non-member countries who are family members of a Union citizen derive from Directive 2004/38 the right to join that Union citizen in the host Member state, whether he has become established there before or after founding a family."
"73. On this point, the answer must be, first, that it is not all nationals of non-member countries who derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national."
"70. …. Directive 2004/38 confers on all nationals of non-member countries who are family members of a Union citizen within the meaning of point 2 of Article 2 of that directive, and accompany or join the Union citizen in a Member State other than that of which he is a national, rights of entry into and residence in the host Member State, regardless of whether the national of a non-member country has already been lawfully resident in another Member State. "
Conclusion
"64. If therefore we turn to the construction of article 3(2)(a), the general issue common to both appeals which we identified in §2 above is whether the provision that OFM [other family members] have to be dependants or members of the household of the Union citizen "in the country from which they have come" means, as Regulation 8(2)(a) provides, that "the country" has to be the EEA state in which the Union citizen also resides.
65. The basic point can be put quite shortly. No family members have rights of residence unless the Union citizen exercises his own right to move to or reside in a member state of which he is not a national. Article 3.1 of Directive 2004/38 provides that article 2 family members obtain the benefit of the Directive if they accompany or join such Union citizens. Although not specifically so stated, it is hardly likely that an OFM will not be also so required to be accompanying or joining his relevant Union citizen. The tight relationship between the exercise of rights by the Union citizen and the requirement that the OFMs accompanying or joining him should have been his dependants or members of his household in the country from which they have come very strongly suggests that that relationship should have existed in the country from which the Union citizen has come, and thus have existed immediately before the Union citizen was accompanied or joined by the OFM. It seems wholly unlikely that when article 10(2) of Regulation 1612/68 and article 3(2)(a) of Directive 2004/38 introduce the requirement of dependence on and membership of the household of the Union citizen in the country from which the OFM has come, they can have had in mind anything other than dependence on the Union citizen in the country movement from which by the Union citizen is the whole basis of his rights and, thus of the rights of the OFM.
66. That consideration is reinforced not only by the requirement that the OFM must be accompanying or joining the Union citizen, but also by the justification for ancillary rights of movement in terms of not deterring the Union citizen from exercising the primary right (see §60 above). The analysis of the ECJ in Akrich addressed actual but unlawful presence of the family member in the original member state. But the argument that "the country" in article 3(2)(a) means any country at all, whether or not the Union citizen is there at the time of movement, assumes that the OFM rules will extend to cases where the OFM is not present in the original member state at all, even unlawfully. It is hard to see how the Union citizen will be deterred from exercising his right to move from one member state to another by the prospect of not being able to take with him an OFM who was once, in another state, but is not now, a member of his household.
67. So far so good. But the argument goes no further than to establish that in order to exercise an OFM's ancillary rights the dependence or membership of household must be in the same country as that from which the Union citizen is moving. Regulation 8(2)(a) however requires the OFM to have been a dependant or a member of the household of the Union citizen in the EEA state in which the Union citizen resides.
68. In most cases, including those addressed in these appeals, the country relevant to the rights of the Union citizen will indeed be a member state, because his rights will be based on movement, which the jurisprudence indicates will normally be movement within the Community. That however leaves the so far unresolved position of the Union citizen who wishes to enter a member state other than his own, being a person who has never lived in his own member state, or has lived in a third country for a substantial period of time: see §§ 29-31 above. The most that can be said about the impact of such cases is that, provided Community law sees the need to accommodate them under the freedoms of movement of Union citizen, they would undermine the position of Regulation 8(2)(a) in interpreting article 3(2)(a) of Directive 2004/38 as requiring "the country from which they have come" as necessarily being an EEA state."
"73. On this point, the answer must be, first, that it is not all nationals of non-member countries who derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 of that directive, of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national."
Decision
E ARFON-JONES DL
DEPUTY PRESIDENT
Date: