Defining 'Dependency' for Extended Family Members in EEA Residence Rights: Fatima & Ors v. The Secretary of State

Introduction

The case of Fatima & Ors v. The Secretary of State for the Home Department ([2019] EWCA Civ 124) centers on the interpretation of "dependency" within the context of residence rights for extended family members under European Economic Area (EEA) regulations. The appellants, all Pakistani citizens, sought residence cards as family members of an EEA national, Hammad Zamurrad ("Hammad"), who had successfully obtained British citizenship. Following Hammad's divorce from Fedra de Melo Mourra, a Portuguese national, the appellants' applications were refused, leading them to appeal the decision. The core issue revolved around whether the appellants remained dependent on Hammad, thereby entitling them to residence rights under Regulation 8(2)(c) of the 2006 Immigration (European Economic Area) Regulations.

Summary of the Judgment

The England and Wales Court of Appeal dismissed the appellants' appeal against the refusal of their EEA residence card applications. The court upheld the decision of the Upper Tribunal, which had set aside the First-tier Tribunal's earlier favorable ruling. The key determination was that the appellants did not meet the "dependency" criteria as stipulated in Regulation 8(2)(c) of the 2006 Regulations. The court emphasized a strict interpretation of dependency, limiting it to direct reliance solely on the EEA national, rather than a broader interpretation involving dependency on both the EEA national and their non-EEA spouse. Consequently, the appellants failed to establish their eligibility for residence rights as extended family members.

Analysis

Precedents Cited

The appellants' counsel referenced two significant Court of Justice of the European Union (CJEU) cases: Singh v Minister of Justice and Equality (Case C-218/14) and Secretary of State for the Home Department v Banger (Case C-89/17). In Singh, the CJEU addressed whether the earnings of a non-Union spouse could contribute to meeting the "sufficient resources" requirement under Article 7(1)(b) of the Treaty on the Functioning of the European Union (TFEU). The court held that the source of resources was immaterial, allowing the Union citizen's resources, even if partly derived from the non-Union spouse, to satisfy the requirement. The appellants sought to draw an analogy between this decision and the concept of "dependency" under Regulation 8(2)(c), arguing for an expanded interpretation of dependency.

In Banger, the focus was on whether a durable relationship with a British citizen could retain residence rights after relocation to the UK, even though the British citizen would no longer qualify as a "Union citizen." However, the court determined that the change in the Union citizen's status negated the applicability of Article 3(2) facilitation, limiting its utility in interpreting dependency for extended family members.

Legal Reasoning

The Court of Appeal meticulously analyzed the statutory language of Regulation 8(2)(c), emphasizing a literal interpretation. The regulation stipulates that "dependency" must be directly upon the EEA national, excluding any extended interpretation that includes dependency on a non-EEA spouse. The court dismissed the appellants' attempts to analogize "dependency" with the broader resource considerations in Singh, asserting that financial dependency does not extend to familial dependency within the regulatory framework. Additionally, the court found no merit in leveraging Banger to support an expanded interpretation, as that case dealt with different aspects of residence rights.

Furthermore, the court addressed the second ground of appeal, which posited that removing the appellants would infringe upon Hammad's rights under Articles 20 and 21 of the TFEU. The court found this argument unsubstantiated, noting that there was no evidence to suggest that the appellants' presence was essential for Hammad's exercise of his free movement rights. The principle from Zambrano v Office national de l'emploi (Case C-34/09) concerning parents deriving residence rights from their children's Union citizenship was deemed inapplicable in this context.

Impact

This judgment reinforces a stringent interpretation of "dependency" within the EEA residence regulations, delineating a clear boundary between direct and extended family members. By affirming that dependency must be solely on the EEA national, the court limits the scope for extended family members to claim residence rights based on a broader or joint dependency. This clarification is pivotal for future cases involving extended family members seeking residence rights, as it underscores the necessity for unequivocal demonstration of direct dependency. Additionally, the decision curtails the potential for leveraging related but distinct CJEU rulings to extend regulatory interpretations beyond their intended scope.

Complex Concepts Simplified

Dependency: In the context of EEA residence rights, "dependency" refers to the reliance of a family member on an EEA national for financial support and sustenance. Regulation 8(2)(c) specifically requires that this dependency be directly upon the EEA national themselves, not through another intermediary such as a non-EEA spouse.

Extended Family Member: Unlike direct family members (e.g., spouses, dependent children), extended family members may include relatives like nieces, nephews, or parents who do not fall within the immediate family category. Their residence rights are subject to more stringent criteria, primarily focusing on their dependency on the EEA national.

Regulation 8(2)(c) of the 2006 Regulations: This provision outlines the conditions under which extended family members can be granted residence rights. It mandates that the individual must be dependent upon the EEA national and have joined them in the UK, maintaining their dependent status throughout their residence.

Conclusion

The Court of Appeal's decision in Fatima & Ors v. The Secretary of State serves as a definitive interpretation of "dependency" within EEA residence regulations. By enforcing a strict, literal understanding of Regulation 8(2)(c), the court limits the eligibility of extended family members to those solely dependent on the EEA national, excluding those with indirect or partial dependencies. This ruling not only clarifies the application of existing regulations but also sets a precedent that will guide future adjudications concerning the residence rights of extended family members. Legal practitioners and appellants alike must heed this clarification to accurately assess the viability of residence claims under EEA frameworks.