Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2022-004418
UI-2022-004409

First-tier Tribunal No: EA/06162/2021
EA/06166/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 28 April 2023

Before

UPPER TRIBUNAL JUDGE GRUBB

Between

THE ENTRY CLEARANCE OFFICER
Appellant
and

A H
A M
(ANONYMITY ORDER MADE)
Respondents

Representation:
For the Appellant: Ms S Rushforth, Senior Home Office Presenting Officer
For the Respondents: Mr C Holmes, counsel

Heard at Cardiff Civil Justice Centre on 2 March 2023

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the respondents are granted anonymity. They shall be referred to as “AH” and “AM”.

No-one shall publish or reveal any information, including the name or address of the respondents, likely to lead members of the public to identify the respondents. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
Introduction
1. Although these are appeals by the Entry Clearance Officer (“ECO”), for convenience hereafter I will refer to the parties as they appeared before the First-tier Tribunal.
2. The ECO appeals against a decision of the First-tier Tribunal (Judge Browne) which allowed the appellants’ appeals against the ECO’s decisions made on 5 March 2021 to refuse their applications made on 2 December 2020 for family permits as ‘extended family members’ of their uncle (the sponsor) a British citizen under reg 12(4) (read with regs 8 and 9) of the Immigration (EEA) Regulations 2016 (SI 2016/1052 as amended) (the “EEA Regulations”).
3. It is common ground between the parties that the EEA Regulations and relevant EU law continue to apply to these appeals after 31 December 2020.
Background
4. The appellants are citizens of Pakistan born on 23 October 2012 and 24 January 2014 respectively. They are the nephews of the sponsor, [MFA] who is a British citizen.
5. Between September 2019 and June 2020, the sponsor lived and, for the most part, worked in the Republic of Ireland. He lived there with the appellants’ mother, his sister. It is not disputed that he exercised EU Treaty rights whilst in Ireland. The sponsor and appellants’ mother returned to the UK on 26 June 2020 after he was laid-off due to the consequences of the Covid-19 pandemic.
6. On return to the UK, the appellants’ mother was granted pre-settled status under the EUSS with leave until 26 November 2025.
7. The appellants unsuccessfully made applications for entry clearance as visitors on 24 August 2018 (refused on 6 November 2018) and 25 April 2016 (refused on 9 May 2016).
8. On 2 December 2020, the appellants made applications for family permits as the ‘extended family members’ (“EFMs”) of the sponsor (their uncle) as a returning British citizen under the EEA Regulations. They claimed that they were “dependent” upon the sponsor and so were EFMs applying reg 8(2) and that the sponsor, as a returning British citizen having exercised Treaty rights in Ireland, was to be treated as if he were an EEA national under reg 9(1A) and (2).
9. On 5 March 2021, the ECO refused the applications. He did so on the basis that EFMs, such as the appellants claimed to be, could not rely upon reg 9 (so that the sponsor were treated as if he were an EEA national) because they were expressly excluded by reg 9(4)(b). The ECO did not notice that reg 9(4)(b) had been revoked on 28 March 2018 and reg 9(1A) and (2) inserted bringing within reg 9 EFMs in the light of the CJEU’s decision in SSHD v Banger (Case C-89/17) [2018] Imm AR 1205 (“Banger”) (see, the Immigration (EEA Nationals) (EU Exit) Regulations 2019 (SI 2019/468), reg 3(5)).
The Appeal to the First-tier Tribunal
10. The appellants appealed to the First-tier Tribunal. Judge Browne allowed the appellants’ appeals under the EEA Regulations. The judge accepted that the appellants were “dependent” upon the sponsor as so were EFMs falling within reg 8(2). Secondly, the judge concluded that the sponsor, a returning British citizen, was to be treated as an EEA national applying reg 9. Thirdly, as a consequence, the appellants were entitled to family permits under reg 12 as EFMs.
The Appeal to the Upper Tribunal
11. The ECO accepted that the refusal decisions wrongly relied upon reg 9(4)(b) which had been revoked. However, the ECO challenged the judge’s decision to allow the appeal on four grounds.
12. First, the judge had wrongly concluded that reg 9(1A) applied so as to treat the sponsor, a returning British citizen, as if he were an EEA national. Regulation 9(2)(b) required that the appellants and sponsor “resided together in an EEA State” and they created or strengthened their family life during their “joint residence in the EEA State”. The appellants had not resided in Ireland with the sponsor.
13. Second, the sponsor did not qualify as an “EEA national” and so the appellants could not be EFMs of an EEA national under the EEA Regulations.
14. Third, any reliance by the judge on reg 7, and that the appellants were “family members”, was wrong. They were not “family members” of the sponsor and their mother was not an EEA national.
15. Fourth, even if the appellants were the EFMs of the sponsor under the EEA Regulations, the judge was wrong to conclude that the ECO must issue family permits to them as reg 12(4) and (5) conferred a discretion to issue a family permit in those circumstances.
16. On 10 September 2022, the FtT (Judge Cruthers) granted the ECO permission to appeal.
17. The appeal was listed at the Cardiff CJC on 2 March 2023. The ECO was represented by Ms S Rushforth and the appellants by Mr C Holmes. I heard submissions from both representatives and Mr Holmes relied upon a skeleton argument.
The Issues
18. Mr Holmes accepted that the appellants could not succeed under the EEA Regulations because they had not “resided together” with the sponsor in Ireland as required by reg 9(2)(b) (or “jointly” in Ireland - reg 9(2)(c)-(f)).
19. However, Mr Holmes submitted that the appellants could succeed under EU law because that was not a necessary requirement to establish their derived right to have their entry and residence facilitated by reference to the ECJ/CJEU case law concerning the derived rights under EU law of EFMs of EU citizens returning to their own EU state having exercised Treaty rights in another EU state. Mr Holmes relied on the cases of R v IAT (Surinder Singh) ex p SSHD (Case C-370/90) [1992] Imm AR 565 (ECJ) (“Surinder Singh”); O and B v Minister voor Immigratie, Integratie en Asiel (Case C-456/12) [2014] QB 1163 (“O and B”) (CJEU); and Banger (CJEU).
20. Mr Holmes accepted in relation to Ground 3 that the appellants’ case was based entirely on them being EFMs and not “family members” of the sponsor. They could not rely upon being “family members” of their mother, who is not an EU or British citizen.
21. Finally, Mr Holmes conceded Ground 4 that, if the appellants could succeed, the ECO had a discretion whether to issue them with family permits rather than, as the judge concluded, a duty or obligation to do so.
The Legal Framework
22. The ‘free movement’ rights (entry and residence) of EU citizens and their family members are provided for in the Citizens’ Directive (Directive 2004/38/EC) (see Art 1(a)).
23. EU citizens are persons who have the nationality of a Member State (see Art 2(1)).
24. "Family member" includes "the spouse" (Art 2(2)(a)), a registered partner (Art 2(2)(b)), direct descendants under the age of 21 of the EU citizen or of the spouse or partner or who are dependants of the EU citizen or of the spouse or partner (Art 2(2)(c)) and "the dependent direct relatives in the ascending line and those of the spouse" of the EU citizen (Art 2(2)(d)).
25. Article 3 provides as follows:
"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 or entry or residence to these people."
26. The free movement rights of “family members” of EU nationals in Art 3.1 are to be contrasted with the rights of “other family members” of EU nationals and those in a “durable partnership” in Art 3.2. The latter only have the right to have their entry and residence “facilitate[d]” in accordance with national legislation.
27. The distinction is reflected in the UK in the EEA Regulations between “family members” (as defined in reg 7) and EFMs (defined in reg 8) of EEA nationals. The former’s rights of admission and residence are set out in regs 11, 12(1), 13, 14 and 15. The EEA Regulations also give effect to the UK’s obligation to ‘facilitate’ the latter’s entry and residence in the UK (regs 8 (definition EFM), 12(4)-(5) (family permits) and 18(4)-(5) (residence cards)).
28. Neither appellant has a relationship with the sponsor which would, if he were an EEA national, make them his “family members” – that is accepted. They are, if at all, EFMs as defined in reg 8(2), being his “dependent” relatives. The judge’s finding that the appellants are dependent upon the sponsor is not challenged. The issue, of course, is whether the sponsor is to be treated as an EEA national.
29. The Citizens’ Directive does not, however, apply to movement by an EU citizen back from another EU State to the Member State of which they are a national. That includes the derived rights of “family members” and EFMs to join or accompany the EU national. So, in this appeal the sponsor and (derived through him) the appellants cannot rely upon the Citizens’ Directive for any free movement right or right to facilitate entry and residence in the UK where the sponsor (a British citizen) returned to the UK from Ireland where he had been exercising Treaty rights.
30. The ECJ/CJEU in its case law has, however, recognised free movement rights for family members of an EU citizen (and the facilitation obligation for EFMs) to return to the EU national’s own country.
31. The EU citizen’s right is derived from Art 21(1) of the Treaty on the Functioning of the European Union which provides:
"Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect".
32. In the Surinder Singh and then O and B, the Court recognised that “family members” (such as spouses) had a derived right to return with the EU citizen to their own country having exercised Treaty rights in another EU state. The CJEU decision in O and B is the leading authority. In that case, both Mr O and Mr B were third country nationals who were married to EU nationals. Mr O’s wife was a Dutch national who had worked in Spain where she had lived with Mr O, a Nigerian citizen. Mr B’s wife was a was also a Dutch national and she had worked in Belgium where she had lived with Mr B, a Moroccan citizen. They each returned to the Netherlands where Mr O and Mr B sought residence documents as the spouses of their respective EU national wives. The issue for the Court was whether they had derived rights of residence under EU based upon their EU national spouse’s right of free movement under Art 21(1). The Court held in both cases that in principle they could. The Court summarised the position in [44]-[57] as follows:
"44. Since third country nationals in situations such as those of Mr O and Mr B are not entitled, on the basis of Directive 2004/38, to a derived right of residence in the member state of which their sponsors are nationals, it must be examined whether a derived right of residence may, in some circumstances, be based on article 21(1)FEU .
45. In that regard, it should be borne in mind that the purpose and justification of that derived right of residence is based on the fact that a refusal to allow such a right would be such as to interfere with the Union citizen's freedom of movement by discouraging him from exercising his rights of entry into and residence in the host member state: see Iida v Stadt Ulm [2013] Fam 121, para 68; Ymeraga v Ministre du Travail, de l'Emploi et de l'Immigration [2013] 3 CMLR 895, para 35; and Alokpa v Ministre du Travail, de l'Emploi et de l'Immigration [2014] INLR 145, para 22.
46. The court has accordingly held that where a Union citizen has resided with a family member who is a third country national in a member state other than the member state of which he is a national for a period exceeding 2½ years and 1½ years respectively, and was employed there, that third country national must, when the Union citizen returns to the member state of which he is a national, be entitled, under Union law, to a derived right of residence in the latter state: see R v Immigration Appeal Tribunal, Ex p Secretary of State for the Home Department [1992] ECR I-4265, para 25, and Minister voor Vreemdelingenzaken en Integratie v RNG Eind [2007] ECR I-10719, para 45. If that third country national did not have such a right, a worker who is a Union citizen could be discouraged from leaving the member state of which he is a national in order to pursue gainful employment in another member state simply because of the prospect for that worker of not being able to continue, on returning to his member state of origin, a way of family life which may have come into being in the host member state as a result of marriage or family reunification: see the RNG Eind case, paras 35, 36, and Iida's case, para 70.
47. Therefore, an obstacle to leaving the member state of which the worker is a national, as mentioned in Ex p Secretary of State and the RNG Eind case, is created by the refusal to confer, when that worker returns to his member state of origin, a derived right of residence on the family members of that worker who are third country nationals, where that worker resided with his family members in the host member state pursuant to, and in conformity with, Union law.
48. It is therefore necessary to determine whether the case law resulting from Ex p Secretary of State and the RNG Eind case is capable of being applied generally to family members of Union citizens who, having availed themselves of the rights conferred on them by article 21(1) FEU, resided in a member state other than that of which they are nationals, before returning to the member state of origin.
49. That is indeed the case. The grant, when a Union citizen returns to the member state of which he is a national, of a derived right of residence to a third country national who is a family member of that Union citizen and with whom that citizen has resided, solely by virtue of his being a Union citizen, pursuant to and in conformity with Union law in the host member state, seeks to remove the same type of obstacle on leaving the member state of origin as that referred to in para 47 above, by guaranteeing that that citizen will be able, in his member state of origin, to continue the family life which he created or strengthened in the host member state.
50. So far as concerns the conditions for granting, when a Union citizen returns to the member state of which he is a national, a derived right of residence, based on article 21(1) FEU , to a third country national who is a family member of that Union citizen with whom that citizen has resided, solely by virtue of his being a Union citizen, in the host member state, those conditions should not, in principle, be more strict than those provided for by Directive 2004/38 for the grant of such a right of residence to a third country national who is a family member of a Union citizen in a case where that citizen has exercised his right of freedom of movement by becoming established in a member state other than the member state of which he is a national. Even though Directive 2004/38 does not cover such a return, it should be applied by analogy to the conditions for the residence of a Union citizen in a member state other than that of which he is a national, given that in both cases it is the Union citizen who is the sponsor for the grant of a derived right of residence to a third country national who is a member of his family.
51. An obstacle such as that referred to in para 47 above will arise only where the residence of the Union citizen in the host member state has been sufficiently genuine so as to enable that citizen to create or strengthen family life in that member state. Article 21(1) FEU does not therefore require that every residence in the host member state by a Union citizen accompanied by a family member who is a third country national necessarily confers a derived right of residence on that family member in the member state of which that citizen is a national on the citizen's return to that member state.
52. In that regard, it should be observed that a Union citizen who exercises his rights under article 6(1) of Directive 2004/38 does not intend to settle in the host member state in a way which would be such as to create or strengthen family life in that member state. Accordingly, the refusal to confer, when that citizen returns to his member state of origin, a derived right of residence on members of his family who are third country nationals will not deter such a citizen from exercising his rights under article 6 .
53. On the other hand, an obstacle such as that referred to in para 47 above may be created where the Union citizen intends to exercise his rights under article 7(1) of Directive 2004/38. Residence in the host member state pursuant to and in conformity with the conditions set out in article 7(1) of that Directive is, in principle, evidence of settling there and therefore of the Union citizen's genuine residence in the host member state and goes hand in hand with creating and strengthening family life in that member state.
54. Where, during the genuine residence of the Union citizen in the host member state, pursuant to and in conformity with the conditions set out in article 7(1)(2) of Directive 2004/38, family life is created or strengthened in that member state, the effectiveness of the rights conferred on the Union citizen by article 21(1) FEU requires that the citizen's family life in the host member state may continue on returning to the member state of which he is a national, through the grant of a derived right of residence to the family member who is a third country national. If no such derived right of residence were granted, that Union citizen could be discouraged from leaving the member state of which he is a national in order to exercise his right of residence under article 21(1) FEU in another member state because he is uncertain whether he will be able to continue in his member state of origin a family life with his immediate family members which has been created or strengthened in the host member state: see the RNG Eind case, paras 35 and 36, and Iida's case, para 70.
55. A fortiori, the effectiveness of article 21(1) FEU requires that the Union citizen may continue, on returning to the member state of which he is a national, the family life which he led in the host member state, if he and the family member concerned who is a third country national have been granted a permanent right of residence in the host member state pursuant to article 16(1)(2) of Directive 2004/38 respectively.
56. Accordingly, it is genuine residence in the host member state of the Union citizen and of the family member who is a third country national, pursuant to and in conformity with the conditions set out in article 7(1)(2) and article 16(1)(2) of Directive 2004/38 respectively, which creates, on the Union citizen's return to his member state of origin, a derived right of residence, on the basis of article 21(1) FEU, for the third country national with whom that citizen lived as a family in the host member state.
57. It is for the referring court to determine whether sponsor O and sponsor B, who are both Union citizens, settled and, therefore, genuinely resided in the host member state and whether, on account of living as a family during that period of genuine residence, Mr O and Mr B enjoyed a derived right of residence in the host member state pursuant to and in conformity with article 7(2) or article 16(2) of Directive 2004/38.”
33. At [61], the Court stated its conclusion as follows:
“61. In the light of all the foregoing considerations, the answer to the first, second and third questions is that article 21(1) FEU must be interpreted as meaning that where a Union citizen has created or strengthened a family life with a third country national during genuine residence, pursuant to and in conformity with the conditions set out in article 7(1)(2) and article 16(1)(2) of Directive 2004/38, in a member state other than that of which he is a national, the provisions of that Directive apply by analogy where that Union citizen returns, with the family member in question, to his member state of origin. Therefore, the conditions for granting a derived right of residence to a third country national who is a family member of that Union citizen, in the latter's member state of origin, should not, in principle, be more strict than those provided for by that Directive for the grant of a derived right of residence to a third country national who is a family member of a Union citizen who has exercised his right of freedom of movement by becoming established in a member state other than the member state of which he is a national."
34. The rationale, expressed in [46], is that without the derived right of free movement for the “family member”, the EU citizen may be discouraged from exercised their free movement rights in another EU state if they could not return to their own country with their “family member”. The Court throughout its reasoning referred to the EU citizen and family member residing in the other EU state together where they create or strengthen their family life together (see, e.g. [46], [47], [49], [50], [51], [52], [54], [55], [56],[57] and [61]).
35. In Banger, the Court extended the derived right to EFMs (or other family members) such as those in a “durable partnership”. However, in doing so, it recognised that the analogy with the position under the Citizens’ Directive, only required that the EFM should have the derived right to have their entry and residence “facilitated” in accordance with national law.
36. In Banger, Ms Banger, a South African citizen was the durable partner of Mr Rado, a British citizen. He had worked in the Netherlands where they lived together. On their return to the UK, Ms Banger applied for, and was refused, a residence card as an EFM of Mr Rado. The CJEU held that Ms Banger had a derived right to have her entry and residence in the UK facilitated as the EFM of Mr Rado. The Court applied its earlier case law, dealing with “family members” of returning nationals to their own EU state, to EFMs with the necessary modification that the analogy with the rights under the Citizens’ Directive for EFMs was only one of “facilitation”. The Court’s reasoning is at [19]-[35]:
"19. … having regard to the information in the request for a preliminary ruling, it must be found that, by its first and second questions, which must be examined together, the Upper Tribunal (Immigration and Asylum Chamber) asks, in essence, whether Article 21(1) TFEU must be interpreted as requiring the Member State of which a Union citizen is a national to grant or facilitate the provision of a residence authorisation to the partner with whom that Union citizen has not contracted a registered partnership ('the unregistered partner'), a third-country national with whom the Union citizen has a durable relationship that is duly attested, where the Union citizen, having exercised his right of freedom of movement to work in a second Member State, in accordance with the conditions laid down in Directive 2004/38, returns with his partner to the Member State of which he is a national in order to reside there.
20. In that regard, it must be borne in mind that under Article 21(1) TFEU, 'every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.'
21. It is the Court's established case-law that the purpose of Directive 2004/38 is to facilitate the exercise of the primary and individual right to move and reside freely within the territory of the Member States, which is conferred directly on citizens of the Union by Article 21(1) TFEU, and that one of the objectives of that directive is to strengthen that right (judgments of 12 March 2014, O. and B., C-456/12, EU:C:2014:135, paragraph 35, and of 5 June 2018, Coman and Others, C-673/16, EU:C:2018:385, paragraph 18).
22. Article 3(1) of Directive 2004/38 provides that that directive is to 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 Article 2(2) of that directive who accompany or join them.
23. The Court has held, as regards Article 3(1) of Directive 2004/38, that it follows from a literal, contextual and teleological interpretation of the provisions of that directive that Directive 2004/38 governs only the conditions determining whether a Union citizen can enter and reside in Member States other than that of which he is a national and does not confer a derived right of residence on third-country nationals, who are family members of a Union citizen, in the Member State of which that citizen is a national (judgment of 5 June 2018, Coman and Others, C-673/16, EU:C:2018:385, paragraph 20 and the case-law cited).
24. In the present case, it is apparent from the order for reference that the main proceedings concern an application for a residence authorisation for Ms Banger, a third-country national, in the United Kingdom, the Member State of which Mr Rado is a national, and that when that application was submitted, Mr Rado and Ms Banger were neither married nor in a registered partnership, but had been living together for several years.
25. As the Advocate General observed in points 28 and 29 of his Opinion, the systematic and teleological considerations which led the Court to hold, as is apparent in the case-law cited in paragraph 23 above, that the provisions of Directive 2004/38 did not confer a derived right of residence on third-country nationals, who are family members of a Union citizen, in that citizen's Member State of origin, are equally applicable as regards the persons envisaged in point (b) of the first subparagraph of Article 3(2) of Directive 2004/38. That directive cannot, therefore, confer a right on a third-country national, who is the Union citizen's unregistered partner, in the Member State of which the Union citizen is a national, for his application for residence authorisation to be facilitated by that Member State.
26. In the present case, it follows that although Ms Banger may come within the concept of 'partner with whom the Union citizen has a durable relationship, duly attested', in point (b) of the first subparagraph of Article 3(2) of Directive 2004/38, that directive cannot, however, confer a right on Ms Banger for her application for residence authorisation to be facilitated by the United Kingdom.
27. However, the Court has acknowledged, in certain cases, that third-country nationals, family members of a Union citizen, who were not eligible on the basis of Directive 2004/38 for a derived right of residence in the Member State of which that citizen is a national, could, nevertheless, be accorded such a right on the basis of Article 21(1) TFEU (judgment of 5 June 2018, Coman and Others, C-673/16, EU:C:2018:385, paragraph 23).
28. That consideration is based upon settled case-law, according to which, in essence, if no such derived right of residence were granted to such a third-country national, a Union citizen would be discouraged from leaving the Member State of which he is a national in order to exercise his right of residence under Article 21(1) TFEU in another Member State because he is uncertain whether he will be able to continue in his Member State of origin a family life which has been created or strengthened, with that third-country national, in the host Member State, during a genuine residence (see, to that effect, judgments of 12 March 2014, O. and B., C-456/12, EU:C:2014:135, paragraph 54, and of 5 June 2018, Coman and Others, C-673/16, EU:C:2018:385, paragraph 24).
29. According to that case-law, the conditions under which that derived right of residence may be granted should not, in principle, be stricter than those provided for by Directive 2004/38 for the grant of such a right of residence to a third-country national who is a family member of a Union citizen in a case where that citizen has exercised his right of freedom of movement by becoming established in a Member State other than that of which he is a national. Even though Directive 2004/38 does not cover the return of that Union citizen to the Member State of which he is a national in order to reside there, it should be applied by analogy (see, to that effect, judgments of 12 March 2014, O. and B., C-456/12, EU:C:2014:135, paragraphs 50 and 61 and the case-law cited, and of 5 June 2018, Coman and Others, C-673/16, EU:C:2018:385, paragraph 25).
30. In that regard, it must be stated that point (b) of the first subparagraph of Article 3(2) of Directive 2004/38 relates specifically to the partner with whom the Union citizen has a durable relationship that is duly attested. That provision provides that the host Member State must, in accordance with its national legislation, facilitate entry and residence for that partner.
31. According to the Court's case-law, Article 3(2) of Directive 2004/38 does not require the Member States to accord a right of entry and residence to third-country nationals envisaged in that provision, but imposes an obligation on those Member States to confer a certain advantage on applications submitted by the third-country nationals envisaged in that article, compared with applications for entry and residence of other nationals of third countries (see, to that effect, judgment of 5 September 2012, Rahman and Others, C-83/11, EU:C:2012:519, paragraph 21).
32. As the Advocate General observed in points 46 and 47 of his Opinion, the case-law cited in paragraph 29 above is equally applicable as regards the partner with whom the Union citizen has a durable relationship that is duly attested, within the meaning of point (b) of the first subparagraph of Article 3(2) of Directive 2004/38. Consequently, a third-country national having such a relationship with a Union citizen who has exercised his right of freedom of movement and returns to the Member State of which he is national in order to reside there, must not, when that Union citizen returns to that Member State, be the subject of less favourable treatment than that provided for under that directive for a third-country national having a durable relationship that is duly attested with a Union citizen exercising his right of freedom of movement in Member States other than that of which he is a national.
33. In a situation such as that in question in the main proceedings, Directive 2004/38, including point (b) of the first subparagraph of Article 3(2) thereof, must be applied by analogy as regards the conditions in which the entry and residence of third-country nationals envisaged by that directive must be facilitated.
34. That conclusion cannot be called in question by the United Kingdom Government's argument according to which, in paragraph 63 of the judgment of 12 March 2014, O. and B. (C-456/12, EU:C:2014:135), the grant of a derived right of residence in the Member State of origin was confined solely to third-country nationals who are a 'family member' as defined in Article 2(2) of Directive 2004/38. As the Advocate General observed in point 35 of his Opinion, although in that judgment the Court held that a third-country national who does not have the status of a family member may not enjoy, in the host Member State, a derived right of residence under Directive 2004/38 or Article 21(1) TFEU, that judgment does not, however, exclude the obligation for that Member State to facilitate the entry and residence of such a national in accordance with Article 3(2) of that directive.
35. In the light of the foregoing considerations, the answer to the first and second questions is that Article 21(1) TFEU must be interpreted as requiring the Member State of which a Union citizen is a national to facilitate the provision of a residence authorisation to the unregistered partner, a third-country national with whom that Union citizen has a durable relationship that is duly attested, where the Union citizen, having exercised his right of freedom of movement to work in a second Member State, in accordance with the conditions laid down in Directive 2004/38, returns with his partner to the Member State of which he is a national in order to reside there."
37. Again, the rationale given by the Court, set out at [28], was that, without the derived right of free movement for the EFM, the EU citizen may be discouraged from exercising their free movement rights in another EU state if they could not return to their own country with the EFM. Further, throughout its reasoning the Court again referred to the EU national and EFM residing together in the other EU state where they create or strengthen their family life together (see e.g., [19], [24], [28]).
38. The so-called Surinder Singh derived right of free movement was given effect in UK law in Regulations between 2000 and 2016. Most recently, reg 9 of the Immigration (EEA) Regulations 2016. The right was initially restricted to the “family members” of returning British citizens but, following the CJEU’s decision in Banger, in 2019 reg 9 was amended to include “extended family members” (see Immigration (EEA Nationals) (EU Exit) Regulations 2019).
39. Regulation 9 provides, so far as relevant, as follows:
“Family members and extended family members of British citizens
(1) If the conditions in paragraph (2) are satisfied, these Regulations apply to a person who is the family member (“F”) of a British citizen (“BC”) as though the BC were an EEA national.
(1A) These Regulations apply to a person who is the extended family member (“EFM”) of a BC as though the BC were an EEA national if—
(a) the conditions in paragraph (2) are satisfied; and
(b) the EFM was lawfully resident in the EEA State referred to in paragraph (2)(a)(i).
(2) The conditions are that-
(a) BC-
(i) is residing in an EEA State as a worker, self-employed person, self-sufficient person or a student, or so resided immediately before returning to the United Kingdom; or
(ii) has acquired the right of permanent residence in an EEA State;
(b) F or EFM and BC resided together in the EEA State;
(c) F or EFM and BC's residence in the EEA State was genuine;
(d) either –
(i) F was a family member of BC during all or part of their residence in the EEA State;
(ii) F was an EFM of BC during all or part of their joint residence in the EEA State, during which time F was lawfully resident in the EEA State; or
(iii) EFM was an EFM of BC during all or part of their joint residence in the EEA State, during which time EFM was lawfully resident in the EEA State;
(e) genuine family life was created or strengthened during F or EFM and BC’s joint residence in the EEA State and;
(f) the conditions in sub-paragraphs (a), (b) and (c) have been met concurrently.
(3) Factors relevant to whether residence in the EEA State is or was genuine include-
(a) whether the centre of BC's life transferred to the EEA State;
(b) the length of F or EFM and BC's joint residence in the EEA State;
(c) the nature and quality of the F or EFM and BC's accommodation in the EEA State, and whether it is or was BC's principal residence;
(d) the degree of F or EFM and BC's integration in the EEA State;
(e) whether F's or EFM’s first lawful residence in the EU with BC was in the EEA State.
…” (emphasis added)
40. Where the requirements of reg 9 are met, then the British citizen is treated as an EEA national under the EEA Regulations and, crucially, the right of entry and residence of “family members” of the returning British citizen are recognised and likewise the right to facilitation of entry and residence of EFMs is recognised.
41. However, it is clear from the terms of reg 9 that I have emphasised above that the requirements can only be met by a “family member” or EFM who also resided in the other Member State where the British citizen resided, indeed they must have “resided together” in that Member State. The appellants cannot, therefore, bring themselves within reg 9 as they did not reside with the sponsor in Ireland. They lived, and continue to live, in Pakistan. It was for this reason that Mr Holmes conceded the appellants could not rely upon reg 9 but, rather, he relied directly on the ECJ/CJEU’s case law. It is to that issue which I now turn.

Discussion
42. Mr Holmes submitted that the requirement that an EFM reside in the other EU state with the British citizen was not reflected in EU law. In his skeleton argument, which he developed orally, Mr Holmes referred me to Surinder Singh, O and B and Banger. He submitted that the CJEU required that the rights in the Citizens’ Directive be applied by analogy where the Surinder Singh principle was engaged when family life between that British citizen and EFM (or family member) was created or strengthened during the British citizen’s residence in the other EU State. That was, as he put it, the Surinder Singh ‘Gateway’. There was no suggestion in the case law that joint residence was a necessary requirement. However, it could be relevant to the extent to which family life had been created or strengthened.
43. Ms Rushforth submitted that the CJEU’s case law did not apply if the sponsor lived alone in the other EU country. The case law was all concerned with EU citizens who resided with their “family members” and EFMs in the other EU country. She submitted that reg 9 was consistent with EU law.
44. For the following reasons, despite their clarity and detail, I reject Mr Holmes’ submissions.
45. First, in each of the cases in the CJEU where the Surinder Singh principle was developed or applied concerned the situation where the EU citizen and their “family member” (Surinder Singh and O and B) or EFM (Banger) were residing together in the other EU state. The case law offers no illustrative example that can assist Mr Holmes’ submissions.
46. Second, the language of the CJEU is consistent and clear. The principle applies in a situation where the EU citizen and “family member” or EFM are jointly residing in the other EU state (see O and B at [46], [47], [49], [50], [51], [52], [54], [55], [56],[57] and [61] and Banger at [19], [24], [28] which I set out earlier in this decision). The language of the Court, therefore, provides no traction to Mr Holmes argument, indeed it points and drives the legal principle in the contrary direction.
47. Mr Holmes referred me to ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC). There, by contrast to the issue in these appeals, the case concerned a requirement in reg 9 – transfer of ‘centre of life’ – which formed no part of the language used by the CJEU in the Surinder Singh cases. It provides no support to Mr Holmes’ case on behalf of the appellants. The UT was, in any event, focussed upon the genuineness of the residence and “family life” of the British citizen and “family member” in Ireland where they lived together prior to returning to the UK. The very situation which Mr Holmes’ submits is not crucial to the derived Surinder Singh free movement right.
48. Third, it is against this background that the Court’s reference to creating or strengthening “family” life between the EU citizen and “family member”/EFM must be understood. It is “family life” in the other EU state.
49. Fourth, and this is fundamental, underlying the Court’s case law that the same free movement rights should apply for “family members”/EFMs, where an EU citizen returns to their own country after exercising treaty rights in another EU state, is that otherwise the EU citizen may be deterred from exercising their Treaty rights in another EU state (see Surinder Singh at [19]):
“19. A national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State.”
50. This is the underlying rationale subsequently affirmed by the CJEU in O and B at [54] and Banger at [28] set out above at paras 32 and 36 respectively.
51. In SSHD v Christy [2018] EWCA Civ 2378, the Court of Appeal (Underhill, Sharp and Sales LJJ), where considering the derived right of a ‘durable partner’ – an EFM – of a British citizen to return from Poland (where the relationship had formed) to the UK with the British citizen. Technically the case concerned the derived right to have that entry “facilitated” as an EFM. The Court of Appeal rejected the submission that this required the durable partner’s right to reside in Poland to have been recognised under EU law rather than, as was the case, the domestic law of Poland. In doing so, the Court of Appeal cited at length the CJEU’s decisions in O and B and Banger. Sales LJ (as he then was) (with whom Underhill and Sharp LJJ agreed), drawing on [28] of the CJEU’s decision in Banger, stated at [36]:
“36. First and most importantly, in my view para. [28] of the judgment in Banger case is founded on a rather abstract and hypothetical inference regarding the effect upon the mind of the relevant EU citizen while still in his home Member State if he thinks that after residing in another Member State and creating or strengthening a family life there with a spouse or a durable partner he will not be able to return to live in the home Member State with his spouse or durable partner. Whilst in the case of a durable partner this does not lead to a derived right of residence, it is taken to lead to a derived right of facilitation in respect of consideration of the prospective application by the durable partner of the EU citizen for a residence card to live with the EU citizen upon return to the home Member State. Such a process of reasoning, turning as it does on inferences regarding the attitude of the EU citizen, does not depend in any way upon whether his prospective durable partner might happen to have been in the relationship Member State as a result of exercising any right she might have in the relationship Member State under Article 3(2)(b) of the Directive. It cannot be thought that the attitude of the EU citizen would be any different, depending upon whether the person who became his durable partner happened to be residing with him in the relationship Member State as a result of exercising her right of facilitation under Article 3(2)(b) or (as in the present case) as a result of being in the relationship Member State by reason of being admitted to reside there under that state's ordinary domestic immigration rules.”
52. Here again, the need for residence together in the other EU state is ‘front and centre’ (see also [38]) but it was the “rather abstract and hypothetical” enquiry as to the response of the EU (British) citizen which is crucial and underlies the derived right.
53. The case law recognises that an EU citizen may be deterred from exercising their Treaty rights in another EU state if they could not return with a “family member” or EFM with whom they had created or strengthened “family life” in that other EU state. Their “family life” – created or strengthened whilst together in the other EU state – would be prevented otherwise on the EU citizen’s return to the their own country. They would be forced to live apart. Here, by contrast, the hypothetical EU (British) citizen would know that if they formed a relationship of dependency with a relative outside the EU whist exercising their Treaty rights in another EU state, their EFM would have the right to have their entry and residence with them facilitated in that other EU country by virtue of Art 3.2 of the Citizens’ Directive. The EFM could join them in that other EU country. The EU (British) citizen could then, again as required by EU law, return to their own country (UK) with their EFM who would have a derived right of facilitation applying Banger (and, in the case of a British citizen under reg 9 of the Immigration (EEA) Regulations). Indeed, that may explain how the sponsor’s sister (the appellants’ mother) travelled to Ireland with the sponsor and then returned to the UK with him.
54. The resulting position is that an EU citizen exercising (or seeking to exercise) Treaty rights in another EU country is in precisely the same situation as an EU citizen who does so and then wishes to return to their own country. Their “family members” and EFMs are treated in the same way. Assuming the factual premise of being a “family member” or EFM is established, each has the same right of free movement or its facilitation when the EU national moves to another EU state to accompany them or, if the relationship is formed in that other EU state, to reside or join them there in that other EU state. Likewise, having done so, the “family member” or EFM then has the right to accompany the EU citizen and reside in the EU citizen’s own country or have their entry and residence facilitated when that EU citizen returns to their own country. The movement rights within the EU are the same. Once the EU national has returned to their own country, any right to bring a “family member” or EFM into the EU (i.e. into the EU citizen’s own country) has to be based upon the domestic law of that country and not EU law. There is nothing in the EU law so stated which can be said to act as a deterrent to the hypothetical EU national from exercising Treaty rights in another EU country before returning to their own country.
55. For these reasons, the judge erred in law in allowing the appellants’ appeals under the Immigration (EEA) Regulations 2016. The appellants could not succeed under those Regulations or under EU law. The correct decision was that the appeals should have been dismissed.
Decision
56. For the above reasons, the decision of the First-tier Tribunal to allow the appellants’ appeals involved the making of an error of law. That decision cannot stand and I set it aside.
57. I re-make the decision dismissing the appellants’ appeals.

Andrew Grubb

Judge of the Upper Tribunal
Immigration and Asylum Chamber

19 March 2023