Tribunal decisions

The decision

IAC-FH-WYL-V1

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: IA/01585/2015
IA/01630/2015
IA/01634/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 7 July 2016
On 7 November 2016

Before

UPPER TRIBUNAL JUDGE CRAIG

Between

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Appellant
and

Habeeb [G]
Fatimat [G]
[A G]
(ANONYMITY DIRECTION not made)
Respondents

Representation:
For the Appellant (Secretary of State): Mr T Melvin, Home Office Presenting Officer
For the Respondents: Mr J Walsh, Counsel

DECISION AND REASONS

1. This the Secretary of State's appeal against the decisions of First-tier Tribunal Judge Dineen who in a determination promulgated on 8 January 2016, following a hearing at Hatton Cross on 12 August 2015 had allowed the appeals of these respondents against the decision previously made by the Secretary of State refusing to grant them residence cards under the 2006 EEA Regulations. For ease of reference I shall hereafter refer to the respondents, who were the original appellants as "the claimants" and to the Secretary of State, who was the original respondent, as "the Secretary of State".
2. The background facts are set out in Judge Dineen's decision, which I now summarise. The claimants are all nationals of Nigeria born respectively on 15 June 1993, 25 August 1995 and 27 September 2001. They are the children of Mr Habeeb Owolabi [G] (whom I shall hereafter refer to as "the father") and Mrs Omotunde [M-G]) hereinafter referred to as "the mother". The mother and father apparently separated in 2000, and on 12 July that year the father married one Manuela [S], an EEA national, in Nigeria. It is obvious from the date of the birth of the third claimant (September 2001) that although the mother and father had stopped their relationship, they must have continued seeing each at least from time to time.
3. In any event, on 1 December 2001 the father together with his new wife entered the UK. The father was granted a five year residence permit under the EEA Regulations on 5 March 2002, as the spouse of an EEA national exercising treaty rights in this country. Very shortly after he had been resident in this country for five years, on 3 April 2007 he and his wife, Ms [S], were divorced. The three claimants had been living in Nigeria during this period.
4. The mother had come to the UK and began seeing the father again; another child was born to them on 11 July 2007, following which apparently they began cohabiting again. They have had another two children.
5. On 27 July 2008, the claimants entered the UK as visitors, since when, after their leave expired, they have remained without leave.
6. On 1 October 2011 the mother and father were married and on 30 November 2011 the father was granted permanent residence as the divorced spouse of an EEA national who had retained rights of residence. He was entitled to permanent residence under the EEA Regulations. He was naturalised as a British citizen on 21 April 2013 and the three youngest children have also been naturalised as British citizens in February 2014.
7. On 4 March 2014 the claimants applied for permanent residence cards, but their applications were refused because the requirements set out within Regulation 10(5)(b) of the 2006 EEA Regulations were not satisfied, they having entered the UK after the termination of the father's marriage. It is not argued on behalf of the claimants that they are entitled to permanent residence under the 2006 Regulations, but it is argued that they are so entitled under the 2004 Directive, referred to below, which should have been implemented by the Regulations.
8. The claimants appealed to the First-tier Tribunal against the refusal for their applications for residence cards and their appeals were allowed by First-tier Tribunal Judge Dineen, following a hearing at which the Secretary of State was not represented. The judge was referred to a skeleton argument which had been prepared on behalf of the claimants, and in a very short Decision indeed, he allowed the appeals. The basis of the Decision appears to be that he was satisfied that the Regulations did not implement the provisions set out within Article 13(2) of the Citizens Free Movement Directive 2004/38/EC, which was "directly applicable in the UK" (see paragraph 24 of the Decision).
9. The Secretary of State now appeals against this Decision, leave having been granted by First-tier Tribunal Judge Andrew on 26 May 2016.
The Hearing
10. I heard submissions from Mr Melvin on behalf of the Secretary of State and also from Mr Walsh on behalf of the claimants. Mr Walsh also relied on a skeleton argument he had prepared for the hearing. While it was accepted on behalf of the claimants that they could not succeed under Regulation 10 of the 2006 EEA Regulations, it was submitted that these Regulations did not implement properly the 2004 Directive, and that this Directive was directly applicable in the UK under the doctrine of direct effect. Mr Walsh relied in particular upon Articles 2 and 13(2) of the 2004 Directive which provide as follows:
"Article 2
Definitions
For the purposes of this Directive:
1. "Union citizen" means any person having the nationality of the Member State;
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 dependents 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);
3. "Host Member State" means a Member State to which a Union Citizen moves in order to exercise his/her right to free movement and residence ?
Article 13
Retention of the right of residence by family members in the event of divorce, annulment of marriage or termination of a registered partnership
1. Without prejudice to the second sub-paragraph, divorce, annulment of the Union Citizen's marriage or termination of his/her registered partnership, as referred to in point 2(b) of Article 2 shall not affect the right of residence of his/her family members who are nationals of a Member State.
Before acquiring the right of permanent residence, the persons concerned must meet the conditions laid down in points (a), (b), (c) or (d) of Article 7 (1).
2. Without prejudice to the second sub-paragraph, divorce, annulment of marriage or termination of the registered partnership referred to in point 2(b) of Article 2 shall not entail loss of the right of residence of a Union Citizen's family members who are not nationals of the Member State where:
(a) Prior to the initiation of the divorce or annulment proceedings or termination of the registered partnership referred to in point 2(b) of Article 2, the marriage or registered partnership has lasted at least three years, including one year in host Member State; ?
Before acquiring the right of permanent residence, the right of residence of the persons concerned shall remain subject to the requirement that they are able to show that they are workers or self-employed persons or that they have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host Member State during their period of residence and have comprehensive sickness insurance cover in the host Member State, or that they are members of the family, already constituted in the host Member State, of a person satisfying these requirements. "Sufficient resources" shall be as defined in Article 8(4).
Such family members shall retain their right of residence exclusively on personal basis."
11. Mr Walsh submitted that these claimants came within the definition of "Family Member" as set out in Article 2-(c) and that they also came within the category of persons entitled to retain the right of permanent residence under Article 13. This is because the marriage had lasted for three years prior to divorce and the claimants "are members of the family already constituted in the host Member State" of "a person satisfying these requirements". That was the basis upon which the appeal had been allowed, although it has to be said that the reasoning in support of this Decision was extremely sparse.
12. Mr Melvin's argument on behalf of the Secretary of State was essentially that these claimants were never members of the family of an EEA national exercising treaty rights in this country, or even of the spouse of an EEA member exercising treaty rights in this country, because they had not arrived in this country until after the father had been divorced from the EEA national. Accordingly, they never had a right of residence in this country.
Discussion
13. The difficulty with Mr Walsh's submissions is that in order to be entitled to permanent residence, the claimants would have to establish "that they are members of the family already constituted in the host Member State of a person satisfying these requirements". As they were never in this country while the father was married to the EEA national, they were never members of a family "already constituted" in the UK. As the father is not and has never been an EEA national exercising treaty rights in this country, they are not entitled to residence through him. As a British national (which he now is) he is not exercising treaty rights in the UK. Accordingly, the claimants are not entitled to permanent residence under the 2004 Directive. While the father was entitled (because he had been the family member of an EEA national exercising treaty rights in this country) to permanent residence under the Directive (and the Regulations) he was not then entitled to confer the benefit of permanent residence onto his children, the claimants; at the time they came to this country, although their father had a right of residence himself, he was not exercising treaty rights and nor was he any longer the spouse of a person who was, and accordingly the claimants were never members of the already constituted family of a person satisfying the requirements under the Directive. This appeal must accordingly be dismissed.

Decision
I set aside the decision of First-tier Tribunal Judge Dineen as containing a material error of law and substitute the following decision:
The appeal of the claimants is dismissed.
No anonymity direction is made.

Signed:

Upper Tribunal Judge Craig Date: 4 November 2016