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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Oboh & Ors v Secretary of State for the Home Department [2013] EWCA Civ 1525 (25 November 2013) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2013/1525.html Cite as: [2014] WLR 1680, [2013] WLR(D) 452, [2013] EWCA Civ 1525, [2014] 1 WLR 1680, [2014] Imm AR 521 |
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ON APPEAL FROM THE UPPER TRIBUNAL
Immigration and Asylum Chamber
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE BEATSON
and
SIR STEPHEN SEDLEY
____________________
(1) Alexander Oboh (2) Linda Oboh (3) Destiny Oboh (4) Maxwell Oboh (5) Sarah Oboh (6) Joshua Oboh (7) Mohammed Halauder |
Appellants |
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- and - |
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Secretary of State for the Home Department |
Respondent |
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The Seventh Appellant appeared in person
Ben Collins (instructed by The Treasury Solicitor) for the Respondent
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Crown Copyright ©
Lord Justice Beatson :
Introduction
The factual and procedural background
The Oboh family appellants
Mr Haulader's appeal
The legal framework
Directive 2004/38/EC, on the right of EU citizens to move and reside freely
"Article 2: Definitions:
For the purposes of this Directive:
…
2. 'family member' means:
(a) the spouse;
(b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
(c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b);
(d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);
…
Article 3: Beneficiaries:
1. This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.
2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:
(a) 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;
(b) the partner with whom the Union citizen has a durable relationship duly attested.
The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.
…
Article 10: Issue of residence cards
1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called 'Residence card of a family member of a Union citizen' no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.
2. For the residence card to be issued, Member States shall require presentation of the following documents:
….
(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;
(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen."
The EEA Regulations
Submissions on behalf of the appellants
"… is not to be read as laying down a requirement that the dependency at the date of the application must be dependency in the country from which the applicant comes, such that a relative who has been dependent throughout cannot qualify if he arrives in the host Member State many months before the EU citizen and the making of the application."
He submitted that this showed that what is relevant in order to qualify as "other family members" for Article 3(2) is the position at the time of the application. To adopt what was characterised as "an historic approach" by looking at the position of the EU citizen in the past would, he submitted, give rise to deterrence.
Submissions on behalf of the respondent
"32. So far as concerns the time at which the applicant must be in a situation of dependence in order to be considered a 'dependant' within the meaning of Article 3(2) of Directive 2004/38, it is to be noted that, as follows from recital 6 in the directive's preamble, the objective of that provision is to 'maintain the unity of the family in a broader sense' by facilitating entry and residence for persons who are not included in the definition of family member of a Union citizen contained in Article 2(2) of Directive 2004/38 but who nevertheless maintain close and stable family ties with a Union citizen on account of specific factual circumstances, such as economic dependence, being a member of the household or serious health grounds.
33. It is clear that such ties may exist without the family member of the Union citizen having resided in the same State as that citizen or having been a dependant of that citizen shortly before or at the time when the latter settled in the host State. On the other hand, the situation of dependence must exist, in the country from which the family member concerned comes, at the time when he applies to join the Union citizen on whom he is dependent.
…
35. … [I]n order to fall within the category, referred to in Article 3(2) of Directive 2004/38, of family members who are 'dependants' of a Union citizen, the situation of dependence must exist in the country from which the family member concerned comes, at the very least at the time when he applies to join the Union citizen on whom he is dependent."
Discussion
Note 1 Case C-162/09 Secretary of State for Work and Pensions v Lassal ECJ, 7 October 2010, at [49] – [50]. [Back] Note 2 Aladeselu v Secretary of State for the Home Department [2013] EWCA Civ 144 [Back] Note 3 Case C-83/11 Secretary of State v Rahman [2013] QB 249 [Back] Note 4 Aladeselu v Secretary of State for the Home Department [2013] EWCA Civ 144 [Back]