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The Upper Tribunal sets aside provisions of the EEA regulations restricting the right of residence of “other family members” of EEA nationals

The judgment of the Upper Tribunal in Moneke (EEA -OFMs) Nigeria [2011] UKUT 00341 (IAC) was promulgated on 22 August 2011.  The case is concerned with entitlement of “other family members” (or extended family members) of EEA nationals to benefit from the right of residence in line with the provisions of Article 3(2) of Directive 2004/38/EC.

Blake J, President of the Upper Tribunal, clarified that  the requirement to demonstrate that the non-EEA national extended family member had resided in the same household as the UK based Sponsor is an alternative, not cumulative requirement, to demonstrating dependence.  In other words, the person claiming to be “other family member” can be either dependant of the UK based sponsor, or a member of his household prior to arrival in the UK.  Dependency or membership of a household that preceded the sponsor becoming an EEA national would not be sufficient.

The judgment gives a much more generous interpretation of Article 3(2) of the European Directive and we believe that a considerable number of applicants will benefit from this welcome development in the interpretation of the EU law.

Full judgement: Moneke (EEA -OFMs) Nigeria [2011] UKUT 00341 (IAC)

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