Sunday, 6 March 2011

Extended family members of EEA nationals

MR and ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC) This case concerned the extended family members of the non EEA national spouse namely, the brother, half-brother and nephew.

The non EEA national’s mother, Mrs. Begum, a Bangladeshi national and widow, was granted leave to enter the UK. The EEA national is Irish and was working in Northern Ireland.  They applied for residence permits to enter the UK and whilst they were initially refused, they won on appeal and Mrs. Begum was admitted to the UK as an elderly dependant. She was a dependant family member in ascending line.

The other applicants (brother, half brother and nephew) do not fall within the definition of Regulation 7 under the Immigration (European Economic Area) regulations 2006 but fall to be treated under reg 8 as extended family members. They argued a discretionary consideration by the Secretary of State for the Home Department (herein after referred to as the SSHD) where deemed appropriate. They were granted entry clearance to join Mr Rahman (the non EEA national) and Mrs. Rahman (the EEA National). They applied for residence cards upon arrival. They were subsequently refused on the basis that they did not qualify as extended family members. Upon appeal, the immigration judge concluded that they were in fact dependants and that the issue was the consideration of the SSHD’s exercise of discretion under reg 17 (4).  The SSHD sought and was granted reconsideration on the point of dependency. The case came before the Upper Tribunal.

Upon consideration of European Community Law and domestic legislation, the Tribunal concluded that it would refer questions to the European Court of Justice (ECJ) for clarification. Those questions are:
1.           Does Article 3(2) of Directive 2004/38/EC require a Member State to make legislative provision to facilitate entry to and or residence in a Member State to the class of other family members who are not nationals of the European Union who can meet the requirements of Article 10(2)?
2.           Can such other family member referred to in Question 1 rely on the direct applicability of Article 3(2) of Directive 2004/38/EC in the event that he cannot comply with any requirements imposed by national legislative provisions?
3.           Is the class of other family members referred to in Article 3(2) and Article 10(2) of Directive 2004/38/EC limited to those who have resided in the same country as the Union national and his or her spouse, before the Union national came to the host state?
4.           Must any dependency referred to in Article 3(2) of Directive 2004/38/EC on which the other family member relies to secure entry to the host state be dependency that existed shortly before the Union citizen moved to the host state?
5.           Can a Member State impose particular requirements as to the nature or duration of dependency referred to in Article 3(2) of Directive 2004/38/EC by such other family member so as to prevent such dependency being contrived or unnecessary to enable a non national to be admitted to or continue to reside in its territory?
6.           Must the dependency on which the other family member relies in order to be admitted to the Member State continue for a period or indefinitely in the host state for a residence card to be issued or renewed pursuant to Article 10 of Directive 2004/38/EC and if so how should such dependency be demonstrated?

The Upper Tribunal stated that a clearer understanding of Community law would be required in order to determine the appeals. Therefore, once the questions have been answered by the ECJ, a determination will be made on the case.


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