No EU citizenship, no extended family members By Iain Halliday

In Sabina Begum v Secretary of State for the Home Department [2021] EWCA Civ 1878 the Court of Appeal considered whether an extended family member, hoping to stay in the UK with their EEA citizen sponsor, can do so when the sponsor only acquired that citizenship after the extended family member entered the UK.

The answer is no, they can’t.

Direct and extended family members

Direct family members of European Economic Area nationals – such as spouses and children under the age of 21 – had an automatic right to enter and reside in the UK under EU free movement law. More distant family members – referred to as extended, or other, family members – did not have automatic rights. They had to make an application for a family permit or residence card. 

An extended family member could apply to enter, or stay in, the UK where they were dependent on a sponsoring relative with EEA citizenship. They must have been dependent before entering the UK (i.e., whilst still living in their country of origin).

Citizenship after entry

Sabina Begum, a national of Bangladesh, came to the UK in April 2010 as a university student, aged 22. She was supported by her uncle, who became an Italian citizen shortly after Ms Begum entered the UK. He paid for her education and upkeep in both Bangladesh and Britain. However, he was not an EEA citizen when Ms Begum was living in Bangladesh, or when she left Bangladesh and entered the UK.

As noted by the court: “this was the point which proved fatal to her application” for a residence card. That was because:

EU law requires the focus to be on the ties between applicant and sponsor at the time when the family member is in that other country or leaving it, not after they have entered the host member state…

It is therefore clear from the language of Article 3(2) [of the Free Movement Directive 2004/38] that if the dependency requirement is relied upon, the person claiming to be an extended family member must be dependent upon the sponsor in the country from which that person has come to the UK, at the time when they left that country to enter the UK. [Paragraphs 25-26]

For Ms Begum to be dependent on an EEA citizen before she left Bangladesh, her uncle needed to have been an EEA citizen at that time. As he wasn’t, the appeal failed.

No free movement rights to restrict 

The object of EU free movement law is, as the name suggests, to enable free movement of EU citizens. The aim is not family reunification — albeit that “family reunion is an ancillary means by which free movement may be facilitated or promoted [45]”.

The Home Office only needs to allow an extended family member to enter, or stay in, the UK where refusal would restrict the EEA citizen’s free movement rights.

This is often overlooked. Often an EEA citizen will only seek to bring an extended family member to the UK after they have lived here for several years. That makes it difficult to argue that their free movement rights, which they had exercised quite some time ago, will be restricted if their family member cannot now join them. 

The problem for Ms Begum was that her uncle had no free movement rights when she left Bangladesh, as he was not an EEA citizen. EU free movement law was not engaged. A person cannot be deterred from exercising rights that they do not have.

Family members do not have free-standing rights under EU law. It always needs to link back to the free movement of the EEA citizen:

…without an EEA national who has free movement rights, there is nothing on which a derivative right of a family member can depend. If the sponsor has no such rights at the critical time, the applicant does not qualify. [43]

Ms Begum’s appeal was therefore refused.

What about Brexit? 

Why does any of this matter after Brexit? The Court of Appeal provides three reasons:

  1. Consideration of EU law may be necessary to ascertain whether a person enjoys (or potentially enjoys) rights under the Brexit Withdrawal Agreement.
  2. A court deciding an appeal which concerns an application made before the end of the transition period, should generally do so by reference to the law in force before 11pm on 31 December 2020 — that is, when Brexit took full legal effect.
  3. EU free movement law has been preserved for certain specific purposes by “complex secondary legislation” – see here and herefor our explanation of that legislation.

Despite Brexit, cases invoking EU free movement law aren’t going away any time soon. They will become less frequent as cases which began before 31 December 2020 are resolved. But the preservation of EU free movement law for some purposes (such as deportation for offences committed before 31 December 2020), the link to the Withdrawal Agreement, and the numerous references to the EEA Regulations scattered throughout Appendix EU, mean that the courts will continue to grapple with EU law issues for several years to come.

That is bad news for anyone keen to promote the severing of all links with the EU’s legal order. But it’s good news for any immigration lawyers who worried that their knowledge on the subject would instantly become redundant after Brexit.

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