EEA Regulations - stipulation that non-EEA family members must enter UK either with or after EEA national is unlawful
12 July 2011
The United Kingdom’s Immigration (European Economic Area) Regulations 2006 govern the entry and residence of "EEA nationals”.
EEA nationals are citizens of the countries comprising the European Union (known in European Law – specifically Directive 2004/38/EC or "the Citizens' Directive", as "Union citizens") together with nationals of Norway, Liechtenstein and Switzerland.
By the Citizens’ Directive Union citizens and their family members are able to come to live and work or study in the member states of the European Union, including the UK.
The Regulations are the UK’s domestic legislation applying the provisions of the Citizens’ Directive.
The Directive makes provisions for the rights of two different classes of family members of Union Citizens.
The first is an expanded class of what some people would understand as a "nuclear family”. It comprises a Union citizen’s spouse or civil partner and his or her children under 21 and any of his or her direct descendants, so long as they are dependent upon the Union citizen, as well as his or her grandparents, again subject to their being dependent upon the Union citizen. The Union citizen’s spouse or civil partner’s children, dependent direct descendants and grandparents are also included.
The second class of family members is described as follows in the Directive:
"any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen” .
In the Regulations this group is described as "Extended family members”. It is covered by Regulation 8 of the EEA regulations, which (until they were amended by the Immigration (European Economic Area) (Amendment) Regulations 2011 with effect from 2 June 2011) said:
"(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 an EEA State 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.”
The Regulations were amended in order to be made consistent with the Directive so far as the requirements under which the family members of EEA nationals could be allowed to join EEA nationals in the UK, following the Court of Justice of the European Union’s ruling in Metock v Minister for Justice, Equality and Law Reform (Ireland) Case C – 127/08,  QB 318.
In Metock the Court of Justice found that the Directive didn’t require family members (i.e. the first kind) to have been living lawfully in another EEA member state before they came to the UK. Confronting one of its earlier decisions (Akrich v Secretary of State for the Home Department  ECR I-9607) which was relied on by the Irish government the Court said:
"58. It is true that the Court held in paragraphs 50 and 51 of Akrich that, in order to benefit from the rights provided for in Article 10 of Regulation No 1612/68, the national of a non-member country who is the spouse of a Union citizen must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated. However, that conclusion must be reconsidered. The benefit of such rights cannot depend on the prior lawful residence of such a spouse in another Member State (see, to that effect, MRAX, paragraph 59, and Case C-157/03,  EUECJ C-157/03 Commission v Spain, paragraph 28).
59. The same interpretation must be adopted a fortiori with respect to Directive 2004/38, which amended Regulation No 1612/68 and repealed the earlier directives on freedom of movement for persons. As is apparent from recital 3 in the preamble to Directive 2004/38, it aims in particular to 'strengthen the right of free movement and residence of all Union citizens', so that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals."
For these reasons the words in Regulation 8 (1) (a) whereby the applicant must be residing in "an EEA State in which the EEA national also resides” have been changed, since 2 June 2011, to "a country other than the United Kingdom.”
In Aladeselu and Others (2006 Regs – reg 8) Nigeria  UKUT 00253 (IAC) the Asylum and Immigration Chamber of the Upper Tribunal was considering the appeal of three Nigerian nationals who were the cousins of a Dutch national living and working in the UK.
They had all entered the UK illegally before their Dutch cousin had come to the UK. They had asked the Secretary of State to give them residence cards as the extended family members of an EEA national. The Secretary of State had refused those applications because she did not accept that they were extended family members.
They appealed against the Secretary of State’s decisions but their appeals were dismissed by an Immigration Judge following a hearing in November of 2010 because of the words of Regulation 8 – specifically the requirement that the extended family member must be "accompanying the EEA national to the United Kingdom or wishes to join him there”.
Of course the Appellants in this case had all arrived in the UK before their EEA national cousin had come here and begun to work.
In dismissing the appeals the Immigration Judge was doing no more than applying what he understood the law to be – he referred to KG (Sri Lanka)  EWCA Civ 13, a judgment of the Court of Appeal decided before Metock in which Lord Justice Buxton made it clear that somebody who came to the UK before his or her EEA family member could not be said either to be accompanying that person or to have accompanied him or her.
There were two difficulties with the Immigration Judge’s decision.
The first was that while the "accompanying and joining” requirement was in the Citizens’ Directive where it was referring to the first class of "close” family members, there was no such requirement so far as second class of family members were concerned. It did not feature in Article 3 (2) – instead the UK government had just put it into Regulation 8, apparently unjustifiably.
Secondly even if there had been an "accompanying and joining requirement” in the Citizens' Directive in relation to this group of family members – the interpretation of it deployed by the Immigration Judge following Lord Justice Buxton in KG was wrong.
In Metock the Court of Justice had made this clear at paragraph 93 of its judgment:
"…in the light of the necessity of not interpreting the provisions of Directive 2004/38 restrictively and not depriving them of their effectiveness, the words 'family members [of Union citizens] who accompany - them' in Article 3(1) of that directive must be interpreted as referring both to the family members of a Union citizen who entered the host Member State with him and to those who reside with him in that Member State, without it being necessary, in the latter case, to distinguish according to whether the nationals of non-member countries entered that Member State before or after the Union citizen or before or after becoming his family members.”
So it didn’t matter whether non-EEA national family members entered with their EEA national family member or before or after him or her. What mattered was their relationship to him or her.
The Tribunal was therefore placed in the position of having to interpret the contents of Regulation 8 in the light of Metock and, even more compellingly, in the absence of any "accompanying and joining” requirement from Article 3 (2) of the Directive.
It decided that it had to interpret the regulation consistently with the Metock judgment:
"the requirement to "join” an EEA sponsor as set out in regulation 8(2)(b) must be read as encompassing both OFMs/extended family members who have arrived before and OFMs/extended family members who have arrived after the EEA sponsor.”
However the Tribunal went on to note that decisions to grant residence cards to extended family members even if the requirements of Regulation 8 are met is a matter for the Secretary of State’s discretion.
This is provided by Regulation 17 (4), which states that the Secretary of State "may” issue a residence card to an extended family member if the EEA spouse is a qualified person or an EEA national with a permanent right of residence, and by (Regulation 17 (4) (b)):
[if] "in all the circumstances it appears to the Secretary of State appropriate to issue the residence card”.
Since the Secretary of State in the instant case had not considered whether to exercise her discretion at all, either in favour or against the Appellants, the Tribunal decided that it had to allow the appeal and remit the case back to the Secretary of State for her to do this.
Although the exercise of that discretion is entirely a matter for the Secretary of State, the Tribunal found it appropriate to make the following remarks in advance of its exercise:
"Whilst it is not for us in the first instance to exercise that discretion or undertake the personal examination enjoined by regulations 17(4) and 17(5), we would observe that it seems to us that these provisions are the principal mechanism the 2006 EEA Regulations afford for taking into account the weight to be attached to the fact that applicants are in the UK lawfully or unlawfully. For the three appellants the evidence they have presented so far does not obviously establish that there is any reason apart from their lack of lawful status why they cannot support themselves. None have health problems. None is a minor or someone who is still a young person wishing to complete their education. They are in their early 40s. They came to the UK illegally (or in the case of the first appellant have remained unlawfully). They cannot have come with any legitimate expectation that they would be entitled to stay. In Article 8 ECHR terms it is not immediately obvious that, despite ongoing financial dependency on the sponsor, there is family life between them or, even if there is, that it is of any great strength. They have not been in the UK for any significant period, nor is there any evidence, as Ms Targett-Parker [counsel for the Appellants] conceded, to show that the presence of the three appellants in the UK has been or is essential to their EEA sponsor’s exercise of free movement rights. Indeed, even when the sponsor had gone back to Nigeria between 2004-2007 she continued to return to the Netherlands on many occasions. The presence of the appellants in her household in Nigeria did not prevent her doing that and it may be very difficult for them to show that their continued presence here would prevent her exercising Treaty rights in the UK. In such circumstances it may be that the respondent will consider that their lack of lawful presence constitutes a weighty factor counting against the issue of a residence card.”
It’s perhaps worth reiterating that these appeals were against the issue of a residence card – not against any decision to remove the Appellants from the United Kingdom. Residence cards reflect an existing right to remain in the UK – they don’t create that right. So not having one doesn't mean you don't have the right which the residence card proves you have.
This is clear from the provisions of Article 25 (1) of the Citizens’ Directive, which says (in unequivocal language):
1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.