Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2019-000005

First-tier Tribunal No: EA/03463/2019

THE IMMIGRATION ACTS

Decision & Reasons Issued:

12th May 2025

Before

UPPER TRIBUNAL JUDGE O’BRIEN
and
DEPUTY UPPER TRIBUNAL JUDGE FARRELLY

Between

PHENNIAS OSAMUDIAN OBAZEE
(NO ANONYMITY DIRECTION MADE)
Appellant
and

Secretary of State for the Home Department
Respondent

Representation
For the Appellant: Mr Jean-Paul Kasusia of Kas and Co, Solicitors.
For the Respondent: Mr Andrew Mullen, Senior Home Office Presenting Officer

Heard at Edinburgh Tribunal Centre on 12 February 2025

Decision and Reasons
Introduction
1. We are remaking this decision following an error of law finding by a differently constituted Upper Tribunal on the 27th of October 2023.A transfer order has been issued.
2. The appellant, Mr Obazee, is a national of Nigeria, born on the 12th of January 1980. On the 27th of March 2019, he applied for an EEA residence card under regulation 8 of the 2016 Regulations. This was on the basis he was an extended family member and dependant of Mr Osamuyimen Olutu, born on the 14th of May 1960. We refer to him hereinafter as the sponsor. He is originally from Nigeria. He is the appellant’s maternal cousin. He now holds Dutch nationality and works in the UK. He is married and his family, consisting of his wife and their two children, are living in Glasgow.
3. The appellant entered the United Kingdom in 2006 with leave as a student. It was valid until 2007. At hearing he said it was extended to 2009.He subsequently overstayed and has remained here since.
4. A covering letter sent with the application said that the appellant and sponsor had lived together at two family homes in Nigeria, one of which had been their grandparent’s home. In oral evidence, the sponsor added that he and the appellant has grown up together.
5. The appellant’s application was refused on the 2nd of July 2019. The respondent was not satisfied he had demonstrated the relationship with his sponsor. The refusal referred to the evidence from Nigeria, described as an attestation of birth, an affidavit of age and a declaration of age. However, the respondent found these documents did not establish the relationship. As this was a fundamental requirement, the respondent did not go on to consider the other requirements.
6. His appeal was heard before First tier Tribunal Judge Kempton (‘the judge’) at Glasgow on the 3rd of September 2019. At paragraph 19 of the determination the judge found that the appellant and his sponsor where related as claimed. However, the judge dismissed the appeal on the issue of dependency.
7. Permission to appeal to the Upper Tribunal was granted on the basis the judge had not given adequate reasons on the issue of dependency.
8. The matter came before Upper Tribunal Judge Rintoul, who on the 17th of June 2024 found that the decision of the First-tier Tribunal involved the making of an error of law and directed that the appeal would be remade in the Upper Tribunal on the dependency issue. That decision is annexed below.
9. The finding that the appellant and sponsor are related as claimed was preserved. Findings were to be made on whether the appellant had been dependent on the sponsor or a member of his household in Nigeria and whether he had been a member of his household or dependent on him in the United Kingdom. Reference was made by Upper Tribunal Judge Rintoul to the decisions of Dauho [2012] UKUT 74, Chowdury [2021] EWCA 2010 and Begum [2021] EWCA 1878.

The Hearing
10. The appellant attended and adopted his statement. He said that in Nigeria he had been living with the sponsor in their grandparents’ home. He said they grew up together and that the sponsor was his guardian. He said he was orphaned in his early teens. He said the sponsor supported him and paid for his tuition fees and accommodation costs. The appellant was able to provide evidence to show his sponsor paid towards his accommodation and tuition. There are receipts for tuition fees dated the 3rd of April 2000 and the 4th of May 2000. He also provided rent receipts for the property in Nigeria covering January to December 2005 and January 2006 to December 2006 He said that his sister travelled to the Netherlands and was also supported by the sponsor. She then came to the United Kingdom and remains here and is married with a family.
11. He said the sponsor moved to the Netherlands in the late 1990s. He said he had no idea what his sponsor’s job was there but in the United Kingdom he works as a care assistant. The appellant said he undertook a course here which cost £1,000 a year for the programme and he was supported by his sponsor. He said when his cousin came to the United Kingdom in 2010, he lived at first in London and then in 2013 took up residence in Glasgow whilst commuting to London.
12. The appellant’s evidence was that he had supported himself as a student by working part time. However, he said this was for his daily living expenses and that his sponsor had paid his tuition fees and also gave him money on a regular basis. As a student he was allowed to work 20 hours per week which he did. The sponsor had said the rest of the family ‘chipped in’ towards the expenses.
13. The sponsor then gave evidence. He said he became a Dutch national in 2010. At that stage the appellant was living in the United Kingdom and he was in the Netherlands. He said he came here in 2010. He currently works in Watford and, dependent on his shifts, would travel to Glasgow where his family are, when he could. He said the appellant lives in his house along with the sponsor’s wife and children. The sponsor pays the rent on the property. His sponsor has been working for the NHS Trust at Watford General Hospital in a position he started on the 18th of July 2016. The wage slips and P60s produced show that the sponsor had been working on a regular basis for the NHS.
14. In submissions, the presenting officer continue to rely on the original decision and contended the appellant did not qualify as a dependent. He said the appellant had been in the United Kingdom four years before the sponsor obtained Dutch nationality. He referred us to the decision of Begum [ 2021]EWCA 1878.
15. In response, the appellant’s representative submitted that a dependency existed and the sponsor was a father figure for the appellant. He said that the sponsor moved from the Netherlands to the United Kingdom and continued to support the appellant and his sister.

Consideration
16. The relevant part of Reg 8 is as follows :
“Extended family member”
8.— (1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies a condition in paragraph (2), (3), (4) or (5).
(2) The condition in this paragraph is that the person is—
(a) a relative of an EEA national; and
(b) residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of the EEA national’s household; and either—
(i) is accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom; or
(ii) has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national’s household.
17. We must determine if the appellant has demonstrated he is an extended family member within regulation 8 of his cousin, the sponsor. The evidence to support the chronology in the papers is limited. The sequencing is important in relation to regulation 8 and the case law on dependency. The test of dependency is whether an appellant requires the support of the sponsor to meet their essential needs rather than to have a certain level of income – see Moneke [2011] UKUT 00341 which refers to the European authorities. The person may also have support from other sources; the question is whether they would be able to meet their essential needs without the support provided by the sponsor.
18. Within the papers is the appellant’s student visa from the 19th of July 2006 to the 19th of October 2007. There is a date stamp on his passport showing he entered the United Kingdom in September 2006. The appellant's evidence is that he has not left the United Kingdom since arrival. We accept this to be so.
19. There is a residence permit issued on the 21st of November 2007 until the 30th of November 2008. There is also a residence permit dated the 19th of February 2008 to the 31st of December 2008. The latter describes the appellant as a student and states he is permitted to work part time. This is also consistent with the sponsor’s letter wherein he states that the appellant came to the United Kingdom when he was in the Netherlands. In the appellant’s statement he said that he was already residing in the United Kingdom when his sponsor relocated from the Netherlands to the United Kingdom.
20. The sponsor stated that in 2010 he decided to move to the United Kingdom from Holland. The sponsor’s registration document was issued on the 5th of July 2017.
21. Based upon this information our finding is that the appellant and sponsor had been living together in Nigeria in family property. The sponsor then left Nigeria and on an unspecified date went to live in the Netherlands, leaving the appellant in Nigeria. His oral evidence was that this was in the late 1990s.The date is not documented. Then, in 2006 the appellant came to the United Kingdom as a student, where he has remained. The sponsor said in oral evidence he was granted Dutch nationality in 2010 and then came to the United Kingdom the same year. They resumed living together but again, this is not specifically documented.
22. The sponsor stated he earns around £1,400 per month. He was not in receipt of public funds. The appellant says he lives in the sponsor’s family home in Glasgow with the sponsor’s family. The sponsor said he lived in London part of the week because of his work. There are wage slips for the sponsor from Watford General Hospital. There is a P60 for the year ending the 5th of April 2017 and a P60 dated the 5th of April 2018 showing his earnings .It gives an address in Watford.
23. We accept that there was a dependency on the sponsor when they both lived in Nigeria. We also would accept his account that the sponsor paid his tuition fees in Nigeria and paid for the rent on the property he lived in. Two important things then happened relevant to the appeal. Firstly, the appellant moved to the United Kingdom in 2006. Secondly, four years later, his sponsor moved from Amsterdam to the United Kingdom.
24. An applicant seeking to establish that he is an extended family member under regulation 8(8) must show dependency on and/or membership of the household of their sponsor before entering the United Kingdom and again within the United Kingdom (Dauho(EEA Regulations -reg 8 )[2012] UKUT 00079). The required relationship must have been continuous, save perhaps for de minimis interruptions (Chowdhury -v- SSHD [2021]EWCA). Moreover, the sponsor had to have been an EEA citizen at the time of the pre-entry dependency (Begum -v-SSHD [2021]EWCA 1878).
25. In the latter case, the appellant, a Bangladeshi national came to the United Kingdom as a student in 2010. It was argued she was the extended family member of her uncle who in 1989 had moved from Bangladesh to Italy. He and his family then moved to the United Kingdom in April 2013. The factual sequencing is similar to the instant case in that the appellant arrived in the United Kingdom first with the sponsor acquiring EU nationality subsequent to this.
26. Giving the lead decision, Andrews LJ pointed out the underlying purpose behind Directive 2004/38/EC was to promote the right of free movement of EEA nationals. It was not aimed at family reunification. She referred to the decision of Rahman [2013] QB 249, which concerned the extended family member coming to the United Kingdom to join the EEA sponsor. Here, the situation is the converse, with the family member already being in the United Kingdom and the sponsor then joining them. The sponsor’s freedom to move to the United Kingdom was not restricted because his cousin was already here. Andrews LJ said it did not matter whether the appellant or the EU citizen arrived first in the United Kingdom. However, the sponsor had to be an EEA national at the time of pre-entry dependency. The sponsor’s citizenship of the EU was the foundation of any derivative rights.
27. We agree with Mr Mullen that Begum is fatal to the appellant’s appeal. The key point in time is when the appellant left Nigeria. He must show an enduring dependency from then, founded upon rights derived from the sponsor’s citizenship. However, the sponsor did not acquire EU nationality until in or around 2010.
28. Apart from the sponsor not being a Dutch national when the appellant came to the United Kingdom, we find it has not been demonstrated that any past dependency has endured. He is now 25 years of age. He has been in the United Kingdom since 2006. He said that when he was a student he did part-time work. The sponsor has provided additional information about his support for the appellant. Much predates the sponsor acquiring Dutch nationality, and so takes the case no further. For instance, there is a Western Union transfer to the appellant of £500 on the 20th of October 2008.
29. In any event, the bank statements produced do not demonstrate financial support until relatively recently. There is a Barclays account opened on the 6th of March 2019 in the appellant’s name showing transfers from the sponsor to the appellant typically of £50. The statements show £50 was transferred from the sponsor on the 23rd of September 2024. There appear to be similar transactions on the 16th of September 2024, 4th of September 2024 , 20th of August 2024 and July 2024. They have not been tabulated by the appellant’s representative and do not demonstrate a dependency. They certainly do not show continuous dependency since before the appellant came to the United Kingdom.
30. Overall, we note the sponsor's means are limited and out of this he said he maintains his own family in Glasgow and meets the costs incurred in London. There is nothing to suggest he had surplus funds to support the appellant. We do not see evidence of any other dependency. Our conclusion therefore is that the appellant has failed to demonstrate the necessary dependency from the relevant time.
31. The appellant’s representative sought to argue to argue Article 8 in the papers but at hearing confirmed this was not being pursued. In any event, this is a misconceived point in relation to an EU application. We would refer to the decision of Celik [2022] UKUT 00220 (IAC) and [2023] EWCA CIV 921 and subsequent authorities on this point. These authorities found that the charter of fundamental rights and Article 8 did not bear on the withdrawal agreement's construction nor did domestic public law.

Decision
1. The decision of the First-tier Tribunal involved the making of an error of law and is set aside.
2. The appeal is dismissed.

F J Farrelly
Deputy Upper Tribunal Judge Farrelly

The Upper Tribunal
Immigration and Asylum Chamber

8 May 2025

Annex

IN THE UPPER TRIBUNAL
Case Nos: UI-2019-000005
IMMIGRATION AND ASYLUM CHAMBER

THE IMMIGRATION ACTS

Directions Issued:
17 June 2024

Before

UPPER TRIBUNAL JUDGE RINTOUL

Between

PHENNIAS OBAZEE
(NO ANONYMITY ORDER MADE
Appellants
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

DECISION AND REASONS
1. The appellant appealed with permission against the decision of First-tier Tribunal Judge Kempton promulgated on 16 September 2019, dismissing his appeal against a decision of the respondent made on 2 July 2019 to refuse to issue him with a residence card under the Immigration (European Economic Area) Regulations 2016 (“the EEA Regulations”) as confirmation of his right of residence as the extended family member of an EEA national, Osamuyimen Olotu (“the sponsor”).
2. The respondent refused the application on the basis that the appellant had failed to provide sufficient evidence in support of his application.
3. The judge heard oral evidence from the sponsor and the appellant. She also had before her a bundle of evidence.
4. The judge was satisfied [19] that the appellant and sponsor are related as cousins, their evidence in this respect being clear and unambiguous. She concluded, however, that, the evidence as to who had paid for the appellant’s upkeep in Nigeria was ambiguous and vague.
5. With respect to evidence of continued membership or dependency, the judge concluded that there was no documentary evidence whatsoever. She also found a lack of transparency in the evidence in the appeal.
6. The appellant sought permission to appeal which was granted on 31 January 2020 on all grounds.
7. At the hearing on 26 October 2023, the respondent conceded that, as averred, the judge had not explained why, having accepted oral evidence as to the relationship, she did not accept the oral evidence of dependency, or membership of the same household, there being a distinct lack of reasoning for such a conclusion. The Upper Tribunal was also concerned that part of the decision appeared to be missing as it ends at [23] abruptly, and there appears to be paragraphs missing.
8. On 27 October 2023, the Upper Tribunal issued directions on this matter, asking whether the appellant wished the matter to be relisted in the Upper Tribunal. He has agreed to that, and accordingly, I am satisfied that this appeal should be remade in the Upper Tribunal on the basis that finding that the relationship between the appellant and sponsor is preserved, but that it will be necessary to make findings as to whether the appellant had been dependent on the sponsor or a member of his household in Nigeria, and whether he had been a member of his household or dependent on him in the United Kingdom.
Notice of decision
9. The decision of the First-tier Tribunal involved the making of an error of law and is set aside. 10. The appeal will be remade in the Upper Tribunal on 27 June 2024.
11. The Upper Tribunal will expect to be addressed on the following cases:
a. Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 79 (IAC)
b. Chowdhury v SSHD [2021] EWCA Civ 2020
c. Begum v SSHD [2021] EWCA Civ 1878

Signed Date: 14 June 2024

Jeremy K H Rintoul
Upper Tribunal Judge Rintoul