Upper Tribunal (Immigration and asylum chamber), 2021-12-14, EA/01060/2020 & EA/01032/2020
| Jurisdiction | UK Non-devolved |
| Date | 14 December 2021 |
| Published date | 29 December 2021 |
| Hearing Date | 02 September 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | EA/01060/2020 & EA/01032/2020 |
Appeal Numbers: EA/01060/2020 (v)
EA/01032/2020 (v)
Upper Tribunal
(Immigration and Asylum Chamber) Appeal Numbers: EA/01060/2020 (v)
EA/01032/2020 (v)
THE IMMIGRATION ACTS
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Heard at Field House via Microsoft Teams |
Decision & Reasons Promulgated |
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On 2nd September 2021 |
On 14th December 2021 |
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Before
UPPER TRIBUNAL JUDGE RIMINGTON
Between
Mrs Samsul Mafadha Mohammadu Rafeek
Mr Mahmoodu Alim Abdulla
(anonymity direction not made)
Appellants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation:
For the Appellants: Ms M Chowdhury, Counsel
For the Respondent: Mr Chris Avery, Home Office Presenting Officer
DECISION AND REASONS
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The appellants appeal against a decision of First-tier Tribunal Judge Siddall promulgated on 19th March 2021 dismissing their appeal against the respondent’s decision to refuse them EEA family permits under Regulation 7 of Immigration (European Economic Area) Regulations 2016.
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The appellants are married, and nationals of Sri Lanka and their EEA national sponsor is their daughter-in-law, who is married to the appellants’ son, Mr Abdulla. The sponsors are stated to support the appellants, who on 28th November 2019 applied for an EEA family permit as direct family members but the applications were refused on 18th December 2019. The matter came before Judge Siddall (following a CMR before Judge Rastogi) and their appeal was dismissed.
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The grounds for permission to appeal were as follows: Ground (i) the judge applied the incorrect regulation 8 rather than regulation 7 (ii) the judge did not take into account that the appellants had sent documentation to the Entry Clearance Officer which had not been produced and the loss of the money transfer receipts was treated unfairly (iii) the judge failed to follow established case law on how post application evidence should be treated.
Ground 1
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The grounds stated the judge made several incorrect references to extended family members which had an impact on how she assessed the financial relationship between the appellants and sponsor, who shared a direct family relationship. For example, at paragraph 1 the judge stated that the appellants brought their appeal on the basis of extended family members of their daughter-in-law. That was incorrect. The original decision acknowledged that the appellants applied for EEA family permits under the Immigration (European Economic Area) Regulations 2016. This was repeated at paragraph 2 when she set out Regulation 8 of the EEA Regulations, finding that Regulation 8(2) was not met. She approached the case on the basis of extended family member.
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In the respondent’s review decision it was accepted that the only point of contention between the parties was whether the appellants were dependent upon the sponsor. There are two distinct Regulations that deal with direct family members and the Home Office publishes two different guidance documents in relation to each Regulation. It was submitted that by consistently referring to Regulation 8 throughout the decision the judge clearly had in mind the financial dependency that needs to be proved in an EFM case and all the findings were made in relation to Regulation 8.
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At the hearing before me Ms Chowdhury submitted that the test for dependency was a different and lesser test than the one found in Regulation 8.
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Mr Avery argued that the tests were in fact the same and in particular, Mr Avery referred to paragraph 32 of Lim v Entry Clearance Officer Manila [2015] EWCA Civ 1383.
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I note that Ms Chowdhury in the grounds of appeal acknowledged that the only point of contention between the parties was whether the appellants were dependent upon the sponsor.
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The Court of Appeal in Lim dealt specifically with Regulation 7(1)(c) setting out at paragraph 8
“8. The relevant regulation in issue is Regulation 7(1)(c). It provides that:
‘... for the purposes of these Regulations the following persons shall be treated as the family members of another person ...
(c) dependent direct relatives [my underling] in his ascending line or that of his spouse or his civil partner.’
This essentially reflects the language in Article 2.2(d) of the Citizens Directive”
The court noted that the test for dependency had been considered on a number of occasions by the Court of Justice of the European Union. In particular, Lim referred to paragraph 14 Jia v Migrationsverket (KC/1/05), [2007] QB 545. As noted, this case considered what it meant when saying that someone was dependent on his or her relatives, in particular in relation to Regulation 7. At paragraphs 15, 16 and 17 the court in Lim had this to say:
‘The Advocate General concluded 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, not being the member state where he is seeking to reside, and that that situation is structural in character."
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The court reached a similar conclusion. It referred to Lebon and then summarised the relevant principles as follows:
"35. According to the case law of the Court of Justice, the status of 'dependent' family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national who has exercised his right of free movement or by his spouse: see, in relation to article 10 of Regulation No 1612/68 and article 1 of Council Directive 90/364/EEC of 28 June 1990 on the right of residence, Centre public d'aide sociale de Courcelles v Lebon (Case 316/85) [1987] ECR 2811, para 22, and Chen v Secretary of State for the Home Department (Case C-200/02) [2005] QB 325, para 43, respectively).
36. The court has also held that the status of dependent family member does not presuppose the existence of a right to maintenance, otherwise that status would depend on national legislation, which varies from one state to another: Lebon's case, para 21). According to the court, there is no need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated in particular by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly: Lebon's case, paras 22 and 23.
37. In order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host member state must assess 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 or the state whence they came at the time when they apply to join the Community national."
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The court then answered the two further questions in the following way:
"43. In those circumstances, the answer to question 2(a) and (b) must be that article 1(1)(d) of Directive 73/148 is to be interpreted to the effect that '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 of those family members or the state from which they have come at the time when they apply to join the Community national. Article 6(b) of that Directive must be interpreted as meaning that proof of the need for material support may be adduced by any appropriate means, while a mere undertaking from the Community national or his or her spouse to support the family members concerned need not be regarded as establishing the existence of the family members' situation of real dependence."
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Reyes (EEA Regs: dependency) [2013] UKUT 314, concerned with dependency also considered Regulation 7 of the Immigration (European Economic Area) Regulations 2006 and stated at paragraph 18 that:
“Other Family Members (OFMs) under Regulation 8/Article 3.2 sheds further light on the court’s approach to the meaning of dependency. Dependency had to be genuine, not contrived and that its interpretation had to be informed by the principle of effectiveness.”
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In sum, the test for dependency is the same in both Regulation 7 and Regulation 8.
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The Home Office guidance in relation to Regulations 7 and 8 does not take the matter further. The Home Office guidance Free Movement Rights: direct family members of European Economic Area (EEA) nationals Version 9 published on 21st February 2020 states in relation to dependency:
“Does the applicant need financial support to meet their essential needs from the EEA national, their spouse or civil partner.
If the applicant cannot meet their essential living needs without the financial support of the EEA national, they must be considered dependent even if they also receive financial support or income somewhere else.
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