Court of Appeal
Published November 3, 2021
Chowdhury v Secretary of State for the Home Department
Before Lady Justice Macur, Lord Justice Stuart-Smith and Sir Stephen Richards
[2021] EWCA Civ 1220
Judgment August 9, 2021
To claim residence in the United Kingdom as an “extended family member” of a European Economic Area national, the claimant had to establish that he had been continuously dependent upon the EEA national concerned, past or intermittent dependency was insufficient.
The Court of Appeal so stated in dismissing the appeal of Mosne Ahmed Chowdhury, from a decision of the Upper Tribunal (Immigration and Asylum Chamber) on April 29, 2020, upholding a decision of the First-tier Tribunal of October 29, 2018, by which it upheld a decision of the home secretary and found that the applicant had not established “dependency” during the period on which he was relying for the purposes of his claim as a non-EEA national for a residence card on the basis that he was an “extended family member” of his great-uncle who was resident in the UK.
Regulation 8 of the Immigration (European Economic Area) Regulations 2006 (SI 2006 No 1003), which implemented within the United Kingdom article 3(2) of Directive 2004/38/EC, on the right of citizens of the European Union and their family members to move and reside freely within the territory of the member states, provided:
“(1) In these Regulations ‘extended family member’ means a person who is not a family member of an EEA national [as defined in the Regulations] and who satisfies the conditions in paragraph (2) …”
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“(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] 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.”
Ramby De Mello and Tony Muman for the applicant; Julia Smyth for the home secretary.
Lady Justice Macur said that the sole issue in the appeal concerned the interpretation of the words “and continues to be dependent upon” in regulation 8(2)(c), implementing article 3(2) of Directive 2004/38/EC.
The appeal fell to be determined by reference to the statutory provisions in force on December 31, 2020. Article 10(2) of the EU-UK Withdrawal Agreement signed on October 19, 2019, provided that persons falling within article 3(2)(a) of the Directive, whose residence was facilitated by the host state in accordance with its national legislation before the end of the transition period in accordance with article 3(2), retained their right of residence in the host state, provided that they continued to reside in the host state.
That also applied to those who applied before the end of the transition period, and whose residence was facilitated thereafter.
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The applicant was a national of Bangladesh who was born in October 1989 and arrived in the UK in February 2011 with entry clearance as a Tier 4 (Student) Migrant. His entry clearance was cancelled when his sponsoring college withdrew its sponsorship, concerned by his inability to speak English. He remained living illegally in the UK. In June 2011 he was treated by the home secretary as an absconder.
In January 2016 the applicant applied for a residence card claiming to be an extended family member of his great-uncle, an EEA national, in accordance with regulation 8(2)(a) and (c). The home secretary refused his application on the ground, inter alia, that he had not provided sufficient evidence that he was a dependent of the EEA national, either in Bangladesh or in the UK.
The First-tier Tribunal judge was satisfied that the applicant had been part of his great-uncle’s household in Bangladesh until the applicant’s departure for the UK in 2011, and that he had been dependent upon his great-uncle. However, there was no documentary evidence of any financial support from, or other dependency upon, his great-uncle between 2011 and December 2014/February 2015 when the applicant was said to have joined his great-uncle’s household in the UK.
The judge said that the applicant and his great-uncle were “noticeably silent” about where the applicant had been living during those years, and the answers given by the great-uncle under cross-examination as to the support he had been providing the applicant were “vague and unsupported”.
It was clear from the jurisprudence of the Court of Justice of the European Union that, subject to any successful challenge that regulation 8(2) undermined the effectiveness of article 3(2) of Directive 2004/38/EC, the determination of whether the conditions of dependency had been fulfilled was a matter for domestic law. That accorded with both the recitals to and article 3(2)(a) of the Directive.
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The words “continues to be” in regulation 8(2)(c), when seen in the chronological context of the primary condition in regulation 8(2)(a), “residing [in a country other than the UK] and is dependent upon”, spoke to a persisting state of affairs. That was the plain and natural meaning of the words. The condition in regulation 8(2)(a) defined the starting point, and the condition in regulation 8(2)(c) defined the necessary duration.
That literal interpretation of regulation 8(2)(c) in accordance with domestic law was not incompatible with the applicant’s, or his great-uncle’s, right to respect for family life under article 8 of the European Convention on Human Rights. The applicant had not been financially or physically dependent upon his great uncle between 2011 and 2014-15, and the nature of their contact during that period had not been evidenced.
Lord Justice Stuart-Smith and Sir Stephen Richards agreed.
Solicitors: JH Wilson Solicitors; Treasury Solicitor.