EEA national’s cousin in law not entitled to live in UK as ‘extended family member’, judge rules

An Indian man who claimed he had a right to live in the UK based on the fact his “cousin in law” is an EEA national has had his case dismissed.

 

Harpeet Singh argued that he was entitled to live in the UK as an “extended family member”, but the Home Secretary rejected his claim and he was refused permission to judicially review that decision - a decision upheld by another judge in the Court of Session.

 

Lord Boyd of Duncansby heard that the petitioner’s first cousin Pawandeep Singh, also an Indian national, married a Czech national Katerina Malisova, who was living in the UK as an EEA worker.

 

 

The petitioner claimed that by virtue of his relationship to his cousin, he ought to be considered an “extended family member” under the Immigration (EEA) regulations 2016 and thus entitled to reside in the UK.   

 

On 21 February 2018 the Secretary of State decided that the petitioner did not have a right to reside in the UK and the petitioner has sought to judicially review that decision.  

 

By interlocutor dated 30 July 2018 Lady Wise refused permission for the petition to proceed, but the petitioner requested a review of that decision. 

 

On behalf of the petitioner it was submitted that regulation 8 of the 2016 regulations, which defines an “extended family member” as a “relative of an EEA national”, should be interpreted in accordance with the Directive (2004/38/EC), which the regulations were intended to implement.

 

It was argued that the overriding principle of the “Citizens‘ Directive” was to ensure that there was “no disincentive to free movement”.

 

It was also submitted that the test for permission to proceed was met.

 

However, the respondent submitted that the Directive was clear and it did not extend to family members of the spouse, and that there was no authority to support the petitioner’s interpretation of the regulations.

 

 

Refusing permission to proceed, the judge ruled that Mr Singh was not an extended family member of Ms Masilova under the regulations.

 

In a written opinion, Lord Boyd said: “The petitioner submits that ‘cousin’ in Home Office Guidance on extended family members of EEA nationals should include cousins in law. That is not what the regulations state.  

 

“If this submission was correct article 8(7) would be redundant as all that would have to be shown was that the petitioner was related to either the EEA national exercising EEA rights or to the dependant spouse or civil partner.”

 

On the suggestion that the regulations should be interpreted in accordance with the underlying principle of freedom of movement, the judge observed that “freedom of movement is not unregulated”. 

 

He added: “The Citizens’ Directive sets out the rights that are accorded Union citizens and the beneficiaries of these rights. 

 

“Articles 2 and 3 are quite clear in their terms and I can see no argument that the beneficiary of the rights under EEA rules extend to a cousin of a spouse of an EEA national exercising Treaty rights in the UK.   

 

“For these reasons I am satisfied that there is no real prospect of success and I shall refuse permission to proceed.”