Extended/Other family members EEA, Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) (22 August 2011

News on September 27th, 2011 Comments Off on Extended/Other family members EEA, Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) (22 August 2011

In Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) (22 August 2011), the Upper Tribunal considered the relevant provisions of Directive 2004/38/EC and in particular Article 3(2) which deals with other family members (OFM’s). The court instructed that subject to any further guidance given by the higher courts, the following approach set out in the decision is to be applied by immigration judges:

“A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: there are alternative ways of qualifying as an OFM.

ii.               In either case the dependency or membership of the household must be on a person who is an EEA national at the material time. For this reason it is essential that tribunal judges establish when the sponsor acquired EEA nationality.

iii.             By contrast with Article 2(2) family members, an OFM must show qualification as such before arrival in the United Kingdom and the application to join the EEA national who is resident here.

iv.             Membership of a household has the meaning set out in KG (Sri Lanka) [2008] EWCA Civ 13 and Bigia & Ors [2009] EWCA Civ 79; that is to say it imports living for some period of time under the roof of a household that can be said to be that of the EEA national for a time when he or she had such nationality. That necessarily requires that whilst in possession of such nationality the family member has lived somewhere in the world in the same country as the EEA national, but not necessarily in an EEA state.

v.               By contrast the dependency on an EEA national can be dependency as a result of the material remittances sent by the EEA national to the family member, without the pair of them having lived in the same country at that time before making those remittances.

vi.             The country from which the OFM has come can be either the country from which he or she has come to the United Kingdom or his or her country of origin.

vii.           Notwithstanding the preliminary reference to the Court of Justice made by the Upper Tribunal in MR & Ors (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC) tribunal judges can proceed to determine OFM appeals in accordance with the guidance given by the Upper Tribunal in this and related cases, making sure to make findings of fact based on a rigorous examination of the evidence.

viii.         Where relevant, findings need also to be made on whether it is appropriate to issue a residence card in accordance with the discretion afforded by regulation 17(4) of the Immigration (European Economic Area) Regulations 2006.

ix.             In deciding whether a person falls within the material scope of regulation 8 of the 2006 Regulations, policy considerations relating to such matters as the appellant’s immigration history, the impact of an adverse decision on the exercise by the EEA national of his or her Treaty rights, etc are irrelevant. Such policy considerations are relevant, however, to the exercise of regulation 17(4) discretion.”

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