Practice and Procedure

OQ (India) and another v Secretary of State for the Home Department, SM (India) v Same [2009] WLR (D) 343

PUBLISHED December 2, 2009

EUROPEAN COMMUNITY ? Freedom of movement ? Rights of entry and residence ? EEA Family Permits ? Right of entry and residence subject to relative being "dependent on" entitled person ? Meaning of "dependent" ? Whether question of dependence requiring regard to ?need? ? Parliament and Council Directive 2004/38/EC, art 3(2)

CA: Ward, Etherton, Sullivan LJJ: 25 Nov 2009

Where a person, in reliance, inter alia, upon art 3(2) of the Citizen Directive, sought to claim a right of entry and residence as a dependant of a Union citizen, there was no requirement to ask whether the claimed dependence arose from a need for the support of such a citizen.

The Court of Appeal so stated when allowing the appeals of: (i) OQ and NQ from a decision of the Asylum and Immigration Tribunal (?AIT?) on 18 June 2008, dismissing their appeals against the dismissal by an immigration judge of their appeal against an entry clearance officer?s refusal to issue EEA family permits; and (ii) SM from a decision of the AIT on 23 July 2007, dismissing his appeal against a similar refusal. The claimants, who came from India and had sponsors who were nationals of an EEA state, sought entry to the United Kingdom in reliance, inter alia, upon European Parliament and Council Directive 2004/38/EC (?The Citizens? Directive?), art 3(2) of which provides for states to facilitate entry and residence for ?any other family members...who, in the country from which they have come, are dependants of members of the household of the Union citizen having the primary right of residence...?
SULLIVAN LJ said that the AIT had held, relying upon its decision in AP(India) v Secretary of State for the Home Department [2007] UKIAT 00048 of 13 June 2007, that the case in the Court of Justice of the European Communities (?CJEC?) of Jia v Migrationsverke (Case C-1/05) [2007] QB 545 had cast doubt upon the CJEC case of Centre public d?aide sociale de Courcelles v Lebon (Case 316/85) [1987] ECR 2811, so that regard was now to be had to ?need?. However, as conceded by the Secretary of State, that was an error: in the Jia case the CJEC was considering two specific questions which had not been before the court in the Lebon case, namely: 2(a) Is [the applicable provision of an earlier Directive] to be interpreted as meaning that ?dependence? means that a relative of a citizen of the Union is economically dependent on the citizen of the Union to attain the lowest acceptable standard of living in his country of origin or country where he is normally resident? 2(b) Is [a provision of the same former Directive] to be interpreted as meaning that the member states may require a relative of a citizen of the Union who claims to be dependent on the citizen of the Union or his/her spouse to produce documents, in addition to the undertaking given by the citizen of the Union, which prove that there is a factual situation of dependence? Furthermore, there was nothing in the Jia case to suggest that the court was departing from the proposition in the Lebon case that, for the Citizens? Directive at least (the test being different under certain applicable rules), the status of a ?dependent? member of a worker?s family was the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker?s support. It followed that the decision in the AP(India) case should not be followed in so far as it suggested a different notion of dependence from the Lebon test; and on the facts the instant cases were to be remitted.
Appearances: Nazir Ahmed (instructed by Sultan Lloyd, Birmingham) for OQ and NQ; Zainul Jafferji (instructed by Aman Solicitors Advocates, Wembley) for SM; Robert Palmer (instructed by Treasury Solicitor) for the Secretary of State for the Home Department.
Reported by: Matthew Brotherton, barrister