Lim (EEA - Dependency) [Asylum and Immigration Tribunal]
| Jurisdiction | UK Non-devolved |
| Judge | Storey,Storey UTJ |
| Judgment Date | 07 August 2013 |
| Neutral Citation | [2013] UKUT 437 (IAC) |
| Date | 07 August 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2013] UKUT 437 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
UPPER TRIBUNAL JUDGE Storey
For the Appellant/ECO: Mr E Tufan, Home Office Presenting Officer
For the Respondent/Claimant: Mr M Sowerby, Counsel, instructed by AP Solicitors
Lim (EEA — dependency)
Subject to there being no abuse of rights, the jurisprudence of the Court of Justice allows for dependency of choice. Whilst the jurisprudence has not to date dealt with dependency of choice in the form of choosing not to live off savings, it has expressly approved dependency of choice in the form of choosing not take up employment (see Centre Publique d'Aide Social de Courcelles v Lebon [1987] ECR 2811 (“ Lebon”) at [22]) and it may be very difficult to discern any principled basis for differentiating between the two different forms of dependency of choice when the test is a question of fact and the reasons why there is dependency are irrelevant.
The respondent (hereafter “the claimant”) is a citizen of Malaysia aged 60. She has two grown up daughters, one of them DK who lives in the UK having married a Finnish national, MD. The claimant is retired and lives in Malaysia in a 3-bedroomed property which she owns free of mortgage with her mother and a 10 year old grandchild of whom she is guardian. She does not receive any social benefit. When she turned 60 she became entitled to withdraw all of her savings in an Employers Provident Fund based on her work for 20 years as a laboratory analyst. However, she decided to leave her savings untouched. Very early in 2012 her daughter DK began sending her remittances. In July 2012 she sought entry clearance as a family member of an EEA national, namely her Finnish son-in-law, with both him and her daughter DK as her sponsors. On 22 August 2012 the appellant (hereafter “the ECO”) refused her application in the following terms:
“You have stated in your application form that you are retired. You have stated at Q63 that you receive £450 per month from your sponsor in the UK (i.e. £5,400 per annum). However, you also stated at Q64 that you have a house in Malaysia valued at £80,000 and additional income from an EPF (Employers Provident Fund) old age pension to the value of £53,000. In view of this I am not satisfied you are genuinely dependent upon your sponsors in the UK and that the funds remitted to you by your sponsors [her daughter and son-in-law] meet the requirements of Regulation 7(1)(c) of the Immigration (European Economic Area) Regulations 2006.”
In subsequent correspondence following the claimant's lodgement of an appeal, the Entry Clearance Manager (“ECM”) acknowledged that the claimant had said that the amount remitted was £450 per quarter, not per month, but commented in light of that correction “it could be argued that she has less financial dependence than initially thought”. The ECM noted that the claimant had no evident health problem and acted as a guardian to a 10 year old child and lived with her own mother: “The remittances may well be to contribute to the child's or other relative's maintenance than to meet the appellant's essential needs”. Her home valued at £80,000 was said by the ECM to be a substantial asset and she could readily downsize accommodation to liquidise assets if needed for her essentials to live on.
In her notice of appeal the claimant stated that she could not sell her property to fund her living expenses “as I will have no where to stay in Malaysia”. The EPF was to cover unforeseen circumstances.
Following a hearing before First-tier Tribunal Judge Thew on 26 February 2013, the claimant's appeal was allowed. Further information before the judge was that as from February 2012 the claimant had accumulated £55,487 in savings under her EPF scheme and was entitled from that date to withdraw the whole amount but decided to keep the savings and make no withdrawal. Her intention was to set up trust funds for her children and grandchildren. She wanted her house to be part of her estate to her children when she was not around. Apart from that she had a small amount of savings of approximately £1,650 deposited in a bank account. Since her retirement she had relied on her own savings initially but her daughter, knowing the claimant had used up a substantial part of her personal savings, asked her mother to keep the remaining savings for a rainy day and since then (January 2012) the claimant has been relying on her daughter for financial support. To cover her living expenses, the claimant spent an average of 700 to 1000 Malaysia Ringgit per month (approximately £150 to £200 per month). The money sent by the daughter supported the grandmother as well in terms of the bills. An aunt was going to take over looking after the grandmother when the claimant came to the UK.
There is no challenge made by the ECO to the accuracy of the above information and the judge found both the daughter and son-in-law credible witnesses. At [22] the judge concluded:
“This evidence, which is credible, is sufficient for me to find that [the claimant] is in fact financially dependent upon them in that she needs their material support to meet her essential needs.”
Having cited the case of Moneke (EEA – OFMs) Nigeria [2011] UKUT 00341 (IAC) the judge concluded:
“25. The references relate to economic activity and the Tribunal concluded that the dependency need not be one of necessity. In his skeleton argument Mr Sowerby said that the question to be answered was whether or not the appellant supported herself, not whether the appellant was in a position to support herself. The appellant has said that the funds in the savings fund are not equivalent to a state pension but are a lump sum by way of a bond from which she can take money if she wishes to do so. She has chosen not to do so. I find that there is no obligation on her to do so and nor is there an obligation upon her to sell her home in order to provide money to live on. Taking steps to cash in on the bond and to sell her home I find would be economic activity that she is not required to undertake. I find that she is as a matter of fact dependent financially upon her daughter and son-in-law and she does not have to undertake economic activity in order to cease to be their dependent.
26. On the evidence before me I find that the appellant has discharged the burden which is upon her to establish that she is a dependent family member and she is entitled to the benefit of an EEA permit because of that. I allow the appeal on the EEA Regulations.”
The grounds on which permission to appeal was granted to the ECO noted that in Moneke the Tribunal had accepted that the definition of dependency was accurately captured by the current European Casework Instructions (ECIs) but the latter included the passage: “Financial dependency should be interpreted as meaning that the person needs financial support from the EEA national or his/her spouse/civil partner in order to meet his/her essential needs – not in order to have a certain level of income”. Given that the claimant was self-sufficient in that she had savings of £55,000 not to mention property valued at £80,000, it was submitted that the judge had given inadequate findings why the claimant was dependent on her family for her essential needs.
At the hearing Mr Tufan reiterated the point that the ECIs drew a distinction between meeting essential needs and having a certain level of income. He referred to the opinion of the Advocate General Geehoed in C-1/05 Jia v Migrationsverket C-1/05 [2007] QB 545 (“ Jia”) which stated at [96] that whether or not the condition of dependency is fulfilled:
“… should be determined objectively, taking account of the individual circumstances and personal needs of the person requiring support. It would seem to me that the appropriate test in this regard is primarily whether in the light of these personal circumstances the dependent's financial means permit him to live at the minimum level of subsistence in the country of normal residence … It should be established that this is not a temporary situation but that it is structural in character.”
and also at [99] 5 th indent:
“Article 1(d) of Directive 73/148/EEC is to be interpreted as meaning that the concept of ‘dependence’ refers to the situation in which a relative of a citizen of the Union is economically dependent on that citizen of the Union to attain the minimum level of subsistence in the country where he is normally resident … and that this situation is structural in character.”
Mr Tufan submitted that on the accepted facts in this case the claimant's essential needs came to £1,800 a year and she had enough in savings to meet these needs for over 20 years. The claimant, he submitted, could not be said to be dependent on the extra money sent by her daughter. If the judge's approach were right there would be nothing to stop a millionaire applicant showing dependency just because they chose not to draw on money in the bank but instead to live on remittances.
Mr Tufan was asked by me to comment on the relevance to this case of observations made by Sullivan LJ in SM (India) [2009] EWCA Civ 1426 at [26]–[27] as follows:
“26. For the sake of completeness, I should mention the fact that, although Mr Palmer invited the court to apply the test for dependency that is set out in Jia, he made it clear in the respondent's skeleton argument that, in the Secretary of State's submission the question whether the applicants' essential needs are met because of the material support of the Union citizen (or his or her spouse or civil partner) needs to be approached with care and is in any event subject to the qualification that Community law cannot be relied upon...
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