[2024] UKUT 00064 (IAC)

In his skeleton argument and the rule 24 response Mr Marziano makes repeated reference to the ‘date of decision’ or the appellants ‘date of arrival in the UK’. To begin with, it is worth highlighting that the eligibility requirements set out in paragraph FP6. of Appendix EU (Family Permit) must be satisfied at the date of application.

Where entry clearance in the form of an EUSS Family permit has been granted, the question whether the Secretary of State or an Immigration Officer is satisfied that it is proportionate to cancel any leave granted, falls to be considered by reference to the position at the date of that subsequent decision.

In order to meet the eligibility requirements for entry clearance under Appendix EU (Family Permit), paragraph FP6.(1)(c) requires that the relevant EEA citizen is either resident in the UK, or will be travelling to the UK with the applicant within six months of the date of application. The focus of FP6.(1)(c) is upon the relevant EEA citizen. They must either already be in the UK (i.e. resident in the UK) or they will be travelling to the UK with the applicant.

Paragraph FP6.1(d) imposes an additional requirement and is directed to the applicant. That is, the applicant will be accompanying the relevant EEA citizen to the UK (or joining them in the UK) within six months of the date of application. The reference to “them” in “joining them in the UK” can only sensibly be read as a reference to the applicant joining the relevant EEA citizen.

I do not accept that the definition of ‘joining’ in this context is much wider than that contended for by the respondent. The difficulty with the construction of the word ‘joining’ contended for by Mr Marziano, is that paragraph FP6.1(d) is not concerned with ‘the junction at which two parts are joined’, so that all that is required is that at the date of application the EEA citizen is resident in the UK and the applicant will be coming to the UK. That is to entirely misread and misconstrue the provisions. It involves either importing words into the provision that are not there, or to disregard the wording of the provision. If, as Mr Marziano submits, all that is required is that the EEA citizen in question be resident in the UK, unless they are overseas at the date of application, paragraph FP6.(1)(d) would be otiose. Paragraph FP6.(1)(c) on its own deals with the requirement that the relevant EEA citizen is in the UK, or will be travelling to the UK with the applicant within six months of the date of the application. On Mr Marziano’s construction, FP6.1(d) would add nothing.

The published guidance that Mr Marziano relies upon is simply guidance. It cannot be construed in the same way as primary or secondary legislation. The guidance refers to FP6.(1)(c) and (d) and states:

“This means that the relevant EEA citizen (or the qualifying British citizen) must either:

• be travelling with the applicant, at the same time, from the same country

• be resident in the UK before the applicant arrives”

As far as it goes, that is undoubtedly correct but that guidance is not in any way exhaustive. It assumes that the applicant is either travelling to the UK with the relevant EEA citizen or joining a relevant EEA citizen who is resident in the UK before the applicant arrives. There is no concession within that guidance that, as Mr Marziano submits, all that is required is that at the date of application, the relevant EEA citizen is resident in the UK, unless they are overseas, in which case there must be evidence of them travelling to the UK with the applicant.

If there were any doubt about that, one only has to turn to what is said in the guidance immediately preceding the passage that is emphasised by Mr Marziano, that I have cited at paragraph [11] above. The published guidance is absolutely clear that paragraphs FP6.(1)(c) and(d) must both be satisfied at the date of application.

In my judgment, the focus of paragraph FP6.(1)(d) is upon keeping the applicant and EEA citizen together (the applicant will be accompanying the relevant EEA citizen), or uniting or reuniting with them (joining them in the UK). If the relevant EEA citizen is resident in the UK at the date of application for the purposes of paragraph FP6.1(c), the applicant will not be accompanying the relevant EEA citizen to the UK because the EEA citizen is already resident in the UK. The applicant must therefore establish that they are ‘joining’ the relevant EEA citizen in the UK.

I accept, as Mr Lawson submits that the word ‘joining’ in this context must, applying the ordinary meaning of the word in the English language, mean that the applicant is being united or reunited with the relevant EEA citizen.

Mr Lawson and Mr Marziano both agree that the purpose of Appendix EU (Family Permit) is to provide, inter alia,  a basis, consistent with the Withdrawal Agreement with the European Union reached on 17 October 2019, and with the citizens’ rights agreements reached with the other EEA countries and Switzerland, for EEA and Swiss citizens resident in the UK by the end of the transition period at 2300 GMT on 31 December 2020, and their family members, to apply for the required leave to remain or enter.

Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States was concerned with the right of the family members, and other dependents of the Union citizen, also to exercise those rights. In summary, the primary objective of the Directive was to promote the right of free movement of EEA nationals. Having to live apart from family members or members of the family in the wider sense may be a powerful deterrent to the exercise of that freedom. An EEA national would not be 'free' to exercise the right of free movement under the underlying Directive absent consideration of their family circumstances and domestic responsibilities.

The primary objective of the underlying Directive is to promote the right of free movement of EEA nationals subject to limitations and conditions of public policy, public health, and public security. (See Recital 1). Family reunification is a corollary to the exercise of that right. It is axiomatic that an EEA national would not be 'free' to exercise the right of free movement absent consideration of their family circumstances. In my judgment, the focus of paragraph FP6.(1)(d) of Appendix EU (Family Permit) is upon keeping the applicant and EEA citizen together, uniting or reuniting them, and that is entirely consistent with the Directive.