SM (India) v Entry Clearance Officer

JurisdictionEngland & Wales
JudgeLord Justice Maurice Kay,Lord Justice Sullivan,Lord Justice Etherton,Lord Justice Ward
Judgment Date25 November 2009
Neutral Citation[2009] EWCA Civ 1426,[2009] EWCA Civ 804
Docket NumberCase No: C5/2009/1062,Case No: C5/2008/1062
CourtCourt of Appeal (Civil Division)
Date25 November 2009
SM (India)
Entry Clearance Officer (Mumbai)
(1) OQ (India)
(2) NQ (India)
Entry Clearance Officer (Mumbai)

[2009] EWCA Civ 1426

Before: Lord Justice Sullivan

Lord Justice Ward


Lord Justice Etherton

Case No: C5/2009/1062

[AIT Nos: VA/34328/2007, VA/34334/2007; TH/01913/2005]




Mr N Ahmed (instructed by Sultan Lloyd) appeared on behalf of OQ and NQ.

Mr Jafferji (instructed by Aman Solicitors Advocates) appeared on behalf of SM.

Mr R Palmer (instructed by the Treasury Solicitor) appeared on behalf of the Respondent.

Crown Copyright©

Lord Justice Sullivan

Lord Justice Sullivan:


In these appeals the appellants appeal against decisions of the Asylum and Immigration Tribunal (“AIT”) to dismiss their appeals against the respondent's refusals to issue them with EEA family permits under Regulation 12 of the Immigration (European Economic Area) Regulations 2006 (“the Regulations”).


All three appellants are adult Indian citizens resident in India. OQ and NQ are sisters. Their father, the sponsor, is a Portuguese national, who has since 19 December 2006 been exercising his right of free movement within the European community to live and work in the United Kingdom. SM is the first cousin of his sponsor, who is another Portuguese national who has been living and working in the United Kingdom since January 2002.


It is unnecessary to rehearse in any detail the procedural history of the appellants’ applications for entry clearance, the refusals of their applications, their appeals against those refusals, the dismissal of those appeals and the orders for reconsideration of their appeals.


On reconsideration the appeals of OQ and NQ came before a panel of the AIT chaired by the Deputy President. In a determination promulgated on 18 June 2008, the Panel concluded that the Immigration Judge who had dismissed their appeals had not materially erred in law. The Panel said in paragraph 1 of its determination:

“The Immigration Judge dismissed their appeals. He found that there was no evidence that the appellants could not obtain work or that they had even made enquiries about potential employment in India. …”


Having referred to the Regulations and to Directive 2004/38/EC, commonly known as the Citizens’ Directive (“the Directive”), which the Regulations sought to transpose into the United Kingdom's domestic law, the Panel said in paragraphs 3 and 4 of its determination:

“3. It is convenient to begin with the question of dependence. We start there because, under the Directive and under the Regulations, a person who is the descendant of a Union citizen exercising treaty rights in the United Kingdom and is over the age of 21 will be a ‘family member’ of the Union citizen if and only if he is dependent upon him. In Centre Publique d’Aide Social de Courcelles v Lebon [1987] ECR 2811 the European Court of Justice indicated that such dependency was a matter of fact: and in PB [2005] UKAIT 0082 the Tribunal pointed out that for that reason there was a difference between dependence under the Immigration Rules, which had to be of necessity, and dependence for the purposes of EU law, which did not. In Jia v Migrationsverket ECJ (Case C-1/105), however, the European Court of Justice after reviewing Lebon, held in para 37 that the question for claimants such as the present appellants was

‘whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives of the State whence they came at the time when they apply to join the Community national’.

At para 43 the same conclusion is expressed as follows:

‘“dependent on them”‘means that members of the family of a Community national established in another Member State within the meaning of Article 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the State of origin’.

4. Jia was applied by this Tribunal in FP and AP [2007] UKAIT 00048. The Tribunal there pointed out that there might in some areas of law, still be some scope for reliance on dependence that was purely factual without proof of need; but that so far as the interpretation of dependence in the definition of ‘family’ member is concerned, the need for resources from the Union citizen or his spouse was crucial. In his submissions, Mr Ahmed sought to ignore entirely the question of need and asked us to apply Lebon and PB as though Jia and AP and FP had not been decided. We decline to do that. In our view the law is quite clear. Where dependence is a necessary feature of the definition of a family member, the dependence has to be a dependence which arises from need rather than merely from choice. It follows from that that the appellants are not family members within the meaning of the Directive or the Regulations. It is fair to say that the Immigration Judge should have considered that question under reg 12 before going on to consider whether the appellants met the requirements of para 317 of the Immigration Rules, but his conclusion on the latter question, and the way in which he set it out, makes his error entirely immaterial. The appellants were not entitled to the document they sought because they are not ‘family members’ of the Union citizen in question.”


The panel then rejected, in paragraph 6, a submission based on the proposition that, even if the appellants were not “family members” within Article 2.2 of the Directive, they were entitled to consideration as “other family members” under Article 3.2:

“Mr Ahmed also argued that the appellants have substantive rights of Article 3.2 of the Directive, which he claimed had not been implemented by the Regulations. That argument is without merit: see AP and FP again. Mr Ahmed referred us to the decision of the Court of Appeal in KG and AK v SSHD [2008] EWCA Civ 13. That decision makes it clear that one, at least, of the reasons given by the Tribunal for its decision in AP and FP is regarded by that Court as correct: that is, that, as the wording of Article 3.2 itself makes clear, it encompasses only persons who ‘have come’ from another country. The appellants have, so far as we are aware, never left their country of origin.”


In SM's case Senior Immigration Judge Martin, in a determination promulgated on 3 July 2007, concluded that the appellant was not a “family member” sponsor and that he was not dependent on the sponsor:

“21. I accept that the Appellant lives in the same house that the Sponsor and his family lived in in India. That does not assist him however. It is also the house in which his own immediate family lives. I accept that the two families share accommodation. That however does not make the Appellant dependent upon the Sponsor…

22. Given that the families all live in the same property and the Appellant, his stepmother and siblings live in the same property, I find that there has not been a genuine transfer of parental responsibility to the Sponsor. If two families are living in the same property and one family has no adult male as in the case of the Appellant whose father is dead, it would be natural for another adult male (the Sponsor) to take on the role of head of the household for both families. That is not the same I find as adopting his deceased uncle's children.

23. It may well be that money is sent on a regular basis back to India by the Sponsor. That does not make the Appellant dependant upon the Sponsor. It is clear from the case of Jia (Free movement of persons) [2007] EUECJ C-105 (09 January 2007) that dependency must be a matter of necessity and not choice. This was confirmed by the Tribunal in the case of AF and FP (Citizens’ Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048.”


Having concluded that the appellant was not a “family member” for the purposes of Article 2.2 the Senior Immigration Judge said, in paragraph 25 of the determination:

“The Appellant is not entitled to be considered under the Regulations as an extended family member because he cannot possibly come within regulation 8(2) as he had never lived with the Sponsor in Europe.”


The Senior Immigration Judge added in paragraph 26 of the determination:

“In any event it is clear that the purpose of the Directive and the Regulations is to ease the free movement of EEA Nationals within Europe. Their free movement within Europe to exercise Treaty rights would clearly be hampered if they were not allowed to travel with their immediate family. The Sponsor in this case has clearly not felt restricted in his movement by his inability to travel with the Appellant. He left India in 2001. The Appellant only made application in December 2002. The Sponsor clearly did not feel unable to travel by not being able to bring the Appellant with him.”


On behalf of the Secretary of State Mr Palmer accepted that the appeals of OQ and NQ should be remitted to the AIT for reconsideration. The Secretary of State continued to resist SM's appeal.


The reasons for the Secretary of State's concession in the case of OQ and NQ are as follows. In Bigia v Entry Clearance Officer [2009] EWCA Civ 79 the Court of Appeal had to consider the implications of the decision of the Grand Chamber of the ECJ in Metock v Minister of Justice, Equality and Law Reform, Case C- 12708. In paragraph 23 of his judgment Maurice Kay LJ, with whom the Master of the Rolls and Tuckey LJ...

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