PB and Others (Goa: EEA discretionary permit; interpretation) India

Factual and Procedural Background

The Appellants, citizens of India, appealed with permission against an Adjudicator's dismissal of their appeals concerning the refusal of EEA family permits for residence in the United Kingdom with a sponsor. The Appellants and the sponsor originate from Goa, a former Portuguese colony, with the sponsor holding Portuguese citizenship evidenced by identity documents issued in Lisbon in May 2001. The sponsor arrived in the United Kingdom in June 2001 and had been working there since. The applications for family permits were made in Bombay in April 2002. The Appellants include the sponsor's son, daughter, and granddaughter, with the son and daughter being refused permits on the basis that they were not dependent on the sponsor. The Adjudicator found their evidence lacking credibility and upheld the refusal. The other family members had been granted permits. The Appellants challenged the refusal on the grounds that they may nonetheless be entitled to the permits sought.

Legal Issues Presented

1. Whether the Appellants qualify as "family members" or "relatives" under Regulation (EEC) No 1612/98 and the Immigration (European Economic Area) Regulations 2000 for the purpose of obtaining EEA family permits.
2. Whether the Appellants established dependency on the sponsor as required under the relevant regulations.
3. The proper interpretation of Regulation 10(4) concerning alternative criteria for issuing permits, specifically the meaning of dependency, household residence, and prior residence before the EEA national came to the United Kingdom.
4. Whether the Entry Clearance Officer erred in failing to consider Regulation 10 in deciding the applications of the first and second Appellants.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The court began by examining the relevant EU and UK regulations governing freedom of movement for workers and their family members, focusing on Regulation (EEC) No 1612/98 and the Immigration (European Economic Area) Regulations 2000. It identified a mandatory requirement to issue permits to defined "family members" and a discretionary power to issue permits to certain "relatives" under Regulation 10.

The court clarified that "family member" status, including dependency, is a question of fact and that dependency need not be absolute or necessary. It interpreted Regulation 10(4) as setting out alternative criteria—dependency, living as part of the household, or prior household residence before the EEA national came to the UK—for discretionary permit issuance.

Regarding the meaning of "before the EEA national came to the United Kingdom," the court reasoned that this phrase should be understood in context to support the purpose of the legislation: facilitating the movement of qualified persons exercising treaty rights without hindrance from family separation. It concluded that this provision applies only to family members who were part of the household in the EU country from which the EEA national moved to the UK, not to those who lived with the EEA national outside the EU before that move.

Applying these principles, the court found that the granddaughter, being under 21, qualified as a family member with a mandatory right to a permit. The son and daughter failed to prove dependency and thus lacked a mandatory right. However, the Entry Clearance Officer had not considered the discretionary provisions under Regulation 10 for these applicants. The court held that the refusal decision was therefore not in accordance with the law and remitted the applications of the son and daughter for reconsideration under Regulation 10.

Holding and Implications

The appeals are ALLOWED. The third Appellant (the granddaughter) is entitled to the permit sought and should be issued one accordingly. The applications of the first and second Appellants (the son and daughter) remain outstanding and must be reconsidered by the Entry Clearance Officer under Regulation 10.

The decision directly affects the parties by granting the granddaughter's permit and requiring further consideration of the son and daughter's applications. No new legal precedent was established beyond the interpretation and application of existing regulations to the facts of this case.