EEA nationals who are exercising their Treaty right to free movement in the UK (in other words, who are employed, self-employed, studying or enjoying the life of financial independence in the UK) are allowed to bring their non-European national family members with them. This right is an automatic one for ‘immediate family members’ which includes spouses, children under 21, dependent children over 21 and dependent direct relatives in the ascending line. Other relatives may fall under the definition of ‘extended family members’ as per Regulation 8 of the Immigration (EEA) Regulations 2006.
In order for an extended family member to enter the UK, the UK Border Agency must ‘facilitate’ the application and decide whether to exercise discretion in each individual case. Under Regulation 8(2) of the Immigration (EEA) Regulations 2006, extended family members must show that they are dependent on the EEA national or that they are a member of his household.
In the recent case of Dauhoo (EEA Regulations – reg 8(2)) Mauritius [2012] UKUT 79 (IAC), the Upper Tribunal set out four different ways in which a person can establish themselves as an extended family member under Regulation 8(2). In each case, the emphasis is on proving that there was a relevant connection to the EEA national both prior to and post arrival in the UK. The four methods of demonstrating this connection are:
- Prior dependency and present dependency;
- Prior membership of a household and present membership of a household;
- Prior dependency and present membership of a household;
- Prior membership of a household and present dependency.
The Upper Tribunal has explained that the extended family member does not have to show a connection in the same capacity. This will allow for more scope for family members to demonstrate their connection to the EEA national and will make the application process easier for applicants. The decision has also provided further clarification on what is an unclear definition of ‘extended family member’ that has proved difficult for both applicants and immigration practitioners alike.
