subject: European Economic Area (EEA) _ Family Permit_ membership of household [print this page] European Economic Area (EEA) _ Family Permit_ membership of household
RK (OFM - membership of household - dependency) India [2010] UKUT 421 (IAC)
This case concerned the appellant RK, who in 2008, applied for an EEA family permit to join her husband in the UK. Both the appellant and her husband are Indian nationals. The appellants mother and father in law's were EEA nationals (Portuguese) who had arrived in the UK in 2003 and were exercising their EEA treaty rights here. In 2001, the appellant's husband (the son) joined his parents in the UK aged 21 years. He joined as a dependent family member in accordance with the definition of family member' outlined in Article 2.2 of the Citizens Directive 2004/38/EC (herein after referred to as the Directive).
The appellant and the son subsequently married in 2007 in India. At the time of the marriage the appellant's husband was residing with his parents in their home. He could not apply for the appellant to join him in the UK as he did not have indefinite leave to remain. Therefore, he could not have sponsored the appellant under the normal Immigration Rules. The appellant thereafter made an application for an EEA family permit stating that she was dependant on her in laws and her husband and that they were supporting her financially whilst she remained in India. She resided in the EEA family's house whilst in India.
Her entry clearance application was consequently refused by the entry clearance officer who was not satisfied that she qualified as a family member in accordance with the Immigration (European Economic Area) Regulations 2006 (herein after referred to as the Regulations).
The Upper Tribunal considered the legislation before it namely Regulation 8.2 which requires that the relative of an EEA national:
Is residing in an EEA state
The EEA national resides in the same state
Is dependent upon the EEA national
Is a member of his household
The Tribunal stated clearly that, if the words of the Regulation were to be taken literally, then the appellant could clearly not benefit from the Regulation and her application would fail. However, the Tribunal went on to consider whether she was an other family member'. They considered Article 3(2) which provides that member States will facilitate the entry of a person who is a dependant or member of the household of the European union citizen who has the primary right of residence. The Tribunal referred to the well known decision of SM (Metock: extended family members) Sri Lanka [2008] UKAIT 75. This case considered Article 3(2) and concluded that the specific part which states country from which they had come' meant the country in which the EEA national had been residing prior to exercising Treaty rights. Reference was made to the case of KG (Sri Lanka) and AK (Sri Lanka) 2008 which dealt with the construction of Article 3(2). The European Court of Justice also handed down its judgement in the case of Metock and other (2008).
Ultimately, the Upper Tribunal made the following decision having regard to all the relevant case law on the issue.
The Tribunal concluded that:
1) The appellant could be a dependent on her in laws and her husband
2) If the appellant's husband were to be granted permanent settlement, the appellant could qualify under the relevant Immigration Rules
3) A person can qualify as an other family member by reason of dependency on the EEA national or non national spouse of such a person without having lived in the EEA state
4) The Tribunal raised doubts as to whether a dependant other family member needed to have lived in the same country as the Union national (but left this to be explored by the Court of Appeal)
Finally, the Tribunal suggested that the Secretary of State rather than the entry clearance officer deal with the appellant's application and that, in light of the substantial delay, that the matter be dealt with expedition.
