CASE: Dauhoo v. Secretary of State for the Home Department-UK Upper Tribunal (Immigration and Asylum Chamber) Rejects Claims of Applicant that he is an “Extended Family Member”
In this case, the Upper Tribunal (Immigration and Asylum Chamber) clarified what an Applicant must show to qualify as an extended family member of an EEA national for the purpose of being granted a residency card under Article 3(2)(a) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citzens of the Union and their family members to move and reside freely within the territory of the Member State. The Tribunal, interpreting the UK regulation transposing the Directive, found that an Applicant must show either his dependency on an EEA national relative or membership of the EEA national’s household prior to the Applicant’s arrival in the UK (“prior “ test) AND after his arrival in the UK (“present” test). The Tribunal rejected the notion that an Applicant was required to show prior and present connection in the same capacity. It construed the regulation purposively, finding that the requirements of dependency and household membership are alternatives rather than conjunctive because to do otherwise “would be contrary to the stated underlying purposes of facilitating the residence of such persons.”
The Appellant, a citizen of Mauritius, arrived in the UK on six month visit visa to his sister, an EEA national, in 2004. He came with his spouse, also an EEA national. He received grants of permission for leave to remain as a student until 2011. His marriage broke down in 2009. He claimed to have been dependent on his sister since his arrival. He applied for a residence card in 2011 on the basis that he was an extended family member of his sister, which was denied by the Secretary of State for the Home Department on the basis that “there was no evidence to show that you were with or dependent on your sister in another country immediately prior to your arrival in the UK in 2004, nor have you supplied any evidence that since you arrived in the UK you have been resident with or financially dependent on her.” The Appellant appealed, offering further evidence that since the breakdown of his marriage, he had been in a durable relationship with another EEA national since mid 2009. The First-tier Tribunal (FTT) judge had upheld the earlier decision, finding credibility issues with respect to the Appellant’s claims and rejecting the Appellant’s claim that he had been dependent on his sister when he lived in Mauritius or when he arrived in the UK.
However, in the Appellant’s case, the Tribunal found that “whilst [appellant] turns out to have established that he met the ‘present’ requirement … by virtue of being a member of the EEA principle’s household in the UK [the FIT judge’s findings had not expressly made a finding on that issue]” he was “still shut out” because he had failed to meet the “prior” test. The Appellant, who acknowledged that he could not show prior household membership, had argued to the Tribunal that the FIT judge erred in assessing appellant and his witnesses’ evidence as well as the documentary evidence, in support of his claim of prior dependence on his sister when he was in Mauritius. The Tribunal found that the FIT judge’s assessment that the Appellant and his witnesses’ evidence lacked credibility was for “sound reasons” and that the FIT judge had acted within his scope in determining that the documentary evidence offered in support of this claim “lacked substance” and was “quite insufficient to demonstrate the appellant’s claimed dependency.”
The Tribunal also found that the FIT judge had not erred in rejecting the Appellant’s argument that he had an EEA claim based on a durable relationship with his EEA partner based on credibility grounds as well as his claim under Article 8 of the European Charter on Human Rights. With respect to the Appellant’s former claim, the Tribunal agreed that the FIT judge had good reason to find appellant’s claim of having been in a relationship with an EEA national from mid 2009 to May 2011 not credible, as he never mentioned the relationship when he submitted his application for a residence card in January 2011 or when he lodged his grounds of appeal in May 2011, and that “on the judge’s findings the relationship had only been shown to exist, if at all, very recently and on the appellant’s own evidence his partner was economically self sufficient.”
The Tribunal concluded that, “on the basis of the evidence before the FIT judge a durable relationship had not been established.” As regards the latter claim that the Appellant’s Art. 8 right to family life had been infringed, the Tribunal concluded that “the judge’s findings of fact (which [he] found to be unaffected by legal error) more than justified him in concluding there was no violation and that he had not sufficiently established family life where he and his sister were both adults and the Appellant was in good health.
BROPHY SOLICITORS
23.03.12
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