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You are here: BAILII >> Databases >> Upper Tribunal (Immigration and Asylum Chamber) >> Ewulo (effect of family permit – OFM) Nigeria [2012] UKUT 238 (IAC) (13 July 2012) URL: https://www.bailii.org/uk/cases/UKUT/IAC/2012/00238_ukut_iac_2012_oe_nigeria.html Cite as: [2012] UKUT 238 (IAC) |
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Upper Tribunal
(Immigration and Asylum Chamber)
Ewulo (effect of family
permit
–
OFM) [2012] UKUT 00238(IAC)
THE IMMIGRATION ACTS
Heard at Field House |
Determination Promulgated |
On 3 July 2012 |
|
|
………………………………… |
Before
MR JUSTICE BLAKE, PRESIDENT
UPPER TRIBUNAL JUDGE DAWSON
Between
OLUWATOBI OLALEKAN EWULO
Appellant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellant: Mr H. Olajuwon, Solicitor
For the Respondent: Ms C. Gough, Senior Home Office Presenting Officer
i)
Where a
family
permit
has been issued by an ECO after inquiry pursuant to regulation 12
of the Immigration (European Economic Area) Regulations 2006 and is used to
enter the United Kingdom a subsequent application for a residence card is to be
determined under regulation 7(3) of the Regulations.
ii)
Where the
validity of the issue of the family
permit
is not contested by the Secretary of
State and the
permit
has not been revoked, the issue is whether there has been
a material change of circumstances since arrival with the consequence that the
claimant no longer qualifies as an
extended
family
member
DETERMINATION AND REASONS
1. Mr Ewolu is a Nigerian citizen born September 1993 and therefore 18 at the time of the hearing before us. He appeals against a decision of the First-tier Tribunal (Judge Hanes) given on 16 June 2011 dismissing his appeal from a refusal of the respondent to issue him with an EEA residence card.
2. The material facts are as follows. Babatunde Francis Olowu born in Nigeria in July 1964 is the appellant’s uncle and the younger brother of his mother, Abosede Ewolo. Mr Olowu is the appellant’s sponsor. He left Nigeria in 1990 to work in Germany and subsequently became a citizen of that country. Since 2006 he has been living and working in the United Kingdom.
3. In 2009 the appellant applied to the Entry Clearance
Officer, Lagos for a family
permit
to join his uncle in the United Kingdom. That application was refused on a number of grounds including lack of satisfaction
as to the relationship, insufficient evidence of dependency and doubts as to
the ability of the sponsor to support the appellant because there was evidence
that he supported a number of other people for immigration entry in the past.
An appeal against that decision was dismissed in April 2010 when the sponsor
both represented the appellant and gave evidence. The judge was informed by
Mr. Olowu that the appellant’s mother had died recently.
4. A further application was made to the ECO, Lagos for a family
permit.
This was granted in September 2010 and was valid for entry
before 15 March 2011. Neither we nor the First-tier judge were shown a copy of
the application form or the documents submitted in support of it but from the
documents made available at the appeal it is likely that they included a copy
of the appellant’s mother’s death certificate of 19 January 2010; remittance
slips from the sponsor to Nigeria for the purpose of paying for the appellant’s
education at Lagooz College Lagos between 20 September 2005 and July 2009
(total sum of 333,600 naira or approximately £1,313); further remittances of
332,500 naira (or approximately £1,309) for the appellant’s attendance on a
computer course and other material supporting the claim. The sponsor attended
for interview at the High Commission. The case advanced was that the
appellant’s mother’s marriage had broken down some years before her death and
the appellant’s father did not support his son but the sponsor did.
5. Equipped with the family
permit,
the appellant
entered the United Kingdom on 5 October 2010 and on 25 October 2010 applied for
a residence card. This application was refused on 1 March 2011. The grounds
for refusal included the claim that there had been a failure to provide
sufficient evidence to establish that the sponsor was a qualified person within
the meaning of the Immigration (European Economic Area) Regulations 2006 (SI
2006/1003) (“the Regulations”); there had been no evidence of pre-entry support
of the appellant; and there had been no evidence of post-entry residence with
or dependence on the sponsor.
6. The appellant appealed this decision. Judge Hanes was satisfied that:
i) the appellant and the sponsor were related as claimed;
ii) the sponsor was an EEA national exercising Treaty rights as a worker;
iii) the appellant had been living with the sponsor in his home since October 2010;
iv) there was evidence that the sponsor had paid the appellant’s school fees from 2005 to 2009.
The judge nevertheless dismissed the appeal because she was not satisfied that:-
i)
the appellant
was either a member
of the sponsor’s household prior to admission to the United Kingdom; or
ii) the appellant had been the dependant of the sponsor before entry. In this context he noted that there was no information as to his mother’s earnings in Nigeria before she died, or from the appellant’s brother aged 23.
7. Permission to appeal to the Upper Tribunal was
granted on 3 November 2011. The grounds of appeal included the submission that
the respondent and the judge had misapplied the Regulations in reaching their
decisions and neither had given any consideration to the fact that the ECO had
already granted a family
permit
in Nigeria.
8. We heard submissions on 3 July 2012 limited to this point. At the conclusion of the hearing we indicated that we were satisfied that the decision of the First–tier Tribunal included a material error of law. We would set aside the decision and re-make it by allowing the appeal. We now give our written reasons for that conclusion.
The Regulations
9. Regulation 12 of the Regulations provides as follows:
12.—(1) An entry clearance officer must
issue an EEA family
permit
to a person who applies for one if the person is a
family
member
of an EEA national and—
(a) the EEA national—
(i) is residing in the UK in accordance with these Regulations; or
(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and
(b) the family
member
will be accompanying the
EEA national to the United Kingdom or joining him there and—
(i) is lawfully resident in an EEA State; or
(ii) would meet the requirements in the
immigration rules (other than those relating to entry clearance) for leave to
enter the United Kingdom as the family
member
of the EEA national or, in the
case of direct descendants or dependent direct relatives in the ascending line
of his spouse or his civil partner, as the
family
member
of his spouse or his
civil partner, were the EEA national or the spouse or civil partner a person
present and settled in the United Kingdom.[1]
(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.
lang=EN style='font-size:11.0pt;font-
family:"Book
Antiqua","serif";color:black'>
(3) Where an entry clearance officer receives an application under paragraph (2) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.
(4) An
EEA family
permit
issued under this regulation shall be issued free of charge and
as soon as possible.
(5) But
an EEA family
permit
shall not be issued under this regulation if the applicant
or the EEA national concerned falls to be excluded from the United Kingdom on grounds of public policy, public security or public health in accordance
with regulation 21.
10. The meaning of the term “extended
family
member”
is given in regulation 8 in the following terms:
8.—(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 a country
other than the United Kingdom 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.
11. The Regulations seek to implement
EP and Council Directive 2004/38 EC (“the Citizens Directive”). The Upper
Tribunal’s decisions in RK (OFM- membership
of household-dependency) India
[2010] 421 UKUT (IAC); MR and others (EEA –
extended
family
members)
Bangladesh [2010] UKUT 449 (IAC) and Moneke (EEA - OFMs) Nigeria
[2011] UKUT 341 (IAC) explained why it did not consider the requirement of the
Regulations that an
extended
family
member
(or other
family
member
(OFM) to use
the language of the Directive) must reside in another EEA country other than
the United Kingdom with the sponsor before admission was compatible with the Citizens
Directive. In Moneke the Tribunal decided that pending clarification of
the law in the reference to the Court of Justice we made (now Case C-83/11 SSHD
v Rahman) Tribunal judges determining
extended
family
member
cases should
consider whether there has been either dependency or
membership
of the
household before entry to the United Kingdom, without dismissing the
application on the basis of a requirement to have resided in another EEA
country other than the United Kingdom where the sponsor was also residing.
12. We are aware that this aspect of our construction of the Citizens Directive is supported by the opinion of Advocate General Bot in Case C-83/11 SSHD v Rahman given on 27 March 2012; it remains to be seen whether the Court of Justice will adopt a similar approach. We further note that neither the ECO in September 2010 nor the judge considered it was necessary for this appellant to have resided in another EEA country where his sponsor was residing before entry to the United Kingdom. Plainly he has never done so. It has not been suggested by Ms Gough that we should apply this requirement and we have not done so.
13. In the light of the above, the
question for the ECO when the appellant made his second family
permit
application was to decide whether he was satisfied that:
i) the sponsor was a qualified person and if so,
ii) whether the appellant was dependent on the sponsor within the meaning of EEA law, and if so,
iii)
whether
following “extensive examination” in all the circumstances of the case the
issue of the permit
appeared appropriate.
14. In this case the ECO would have been aware of the previous application made to the same post and the decision on the first appeal. Despite the present absence of information as to the material that was before him when he made the decision, it is apparent that he must have been satisfied of each requirement and accepted the explanations that had given rise to previous concerns. The ECO would have been aware that dependency can be established by evidence of material support for essential living needs of the claimant; that support does not have to be either exclusive or necessary in the sense that there was no one else to provide it (see Moneke at [41] to [42]).
15. Where a claimant enters the United Kingdom with the benefit of a pre-entry family
permit,
regulation 7(3) applies. Its
terms provide:
“Subject to
paragraph (4), a person who is an extended
family
member
and has been issued
with an EEA
family
permit
…… shall be treated as the
family
member
of the
relevant EEA national for as long as he continues to satisfy the conditions in
regulation 8(2) ….in relation to that EEA national and the
permit
…has not
ceased to be valid or been revoked”.
16. We explored the meaning of this
regulation with Ms Gough. She recognised that the regulation meant that the
claimant should be treated as a family
member
where: the
permit
was properly
issued and used during the period of its validity; there had been no revocation
of the
permit
and following entry the claimant continued to satisfy the
conditions in regulation 8(2). We agree and note this chimes with the terms of
regulation 17(4) and (5) of the Regulations that apply where the claimant
applies for the first time in country. Where there is no prior
family
permit
the Secretary of State will have to conduct the extensive examination on a
first application for recognition of a right of residence made after entry and
where a person does not fall within regulation 7(3).
17. Ms Gough also informed us that her
brief researches on the UKBA computer prior to the hearing revealed that the
permit
had not been revoked nor was there any concern as to its validity when
issued.
Conclusions
18. In those circumstances the task for
the respondent on the application for the residence card and for the judge on
appeal was somewhat narrower than the task that was in fact undertaken. It is
for the respondent to raise and substantiate a ground that the permit
was not
validly or properly issued and/or should be revoked (see Samsam (EEA
revocation and retained rights) Syria [2011] UKUT 165 (IAC) at [24] to
[29]). She did not do so below and does not seek to do so before us.
19. In the absence of any reason to
believe that the family
permit
was not validly issued, or had been revoked, the
judge in such a case should focus on whether the claimant continued to meet the
requirement of regulation 8(2). In this case it is apparent that the judge
found that the appellant had become a
member
of his sponsor’s household in the
UK and that would be a sufficient basis to conclude that he continued to be an
extended
family
member
although we understand that he is also dependent on his
sponsor while the appellant is waiting to regularise his position and continue
his studies. Equally there was an express finding that the sponsor continued to
be a qualified person through his remunerative employment in the United Kingdom.
20. In our judgment, there was no
occasion to re-visit the issue of historic dependency before admission to the United Kingdom on which the ECO must have been satisfied when he issued the permit.
The
judge erred in law in re-examining the pre- entry eligibility for the
permit
on
which the ECO was satisfied. Where the
permit
has been properly issued, has not
been revoked and has been used to travel during the period of its validity,
then the issue of a residence card turns on whether the holder of the
family
permit
continues to meet the requirements for being an
extended
family
member
of a
qualified person. On that issue the judge found in favour of the appellant.
21. Accordingly, regulation 7(3)
requires the respondent to treat the appellant as a family
member
of a
qualified person and, under regulation 17(1), the issue of a residence card to
such a person is mandatory.
22. In the circumstances, we re-make the decision by allowing the appeal and direct issue of the residence card that the appellant sought.
Signed
Chamber President
Date 5 July 2012