SM (India) v Entry Clearance Officer (Mumbai)

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 agreed, noted that:

“In the light of Metock , the Secretary of State concedes that the requirement of Regulation 12(1)(b)(i) that the family member who will be accompanying the EEA national to the United Kingdom or joining him there must be "lawfully resident in an EEA state" is offensive to the Directive. The right of a family member to entry and residence cannot be limited by reference to his existing or previous place of residence. The closeness of the family relationship is sufficient in itself to give rise to the right.”

Paragraph 41 of the judgment records the Secretary of State’s acceptance:

“…that the reasoning which underlies the conclusion that, in relation to Article 2.2 "family members", there is no need for prior lawful residence in another Member State, must also apply to OFMs [other family members]”

Paragraph 41 of the judgment in Bigia continues:

“It follows that the provisions in Regulations 8 and 12 of the 2006 Regulations, to the extent that they require an OFM to establish prior lawful residence in another Member State, do not accord with the Directive.”

The position in the light of Bigia is therefore that the appellants, OQ and NQ, have a right of entry and residence if they are the dependents of their father, the sponsor. The question of their dependency is to be determined in accordance with the ECJ’s decision in Jia. In paragraph 24 of Bigia Maurice Kay LJ said this:

“In KG and AK, the test of dependency was taken to be as stated by the ECJ in Jia (paragraph 43), namely that family members

‘… need the material support of [the Union citizen] 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 [Union citizen].’”

The problem arises because, although the AIT panel purported to apply Jia, it did so in accordance with its own interpretation of the effect of Jia in its determination in the case of AP and FP (India) [2007] UKAIT 00048. In that case, a panel of the AIT presided over by the Deputy President concluded that the European Court of Justice in Jia had effectively overruled its earlier decision in Lebon because the AIT considered that there was an inconsistency between paragraphs 36 and 37 of the ECJ’s judgment in Jia. Having referred to paragraphs 37 and 38 of Jia, the Tribunal said in paragraph 28 of its judgment in AP and FP:

“So much is clear. Leaving aside for a moment the requirement for proof by a particular document, dependency for the purposes of Directive 73/148/EEC is a matter of need, not of choice. The question is not whether a person does not support himself, but whether he is not in a position to support himself.”

The AIT then said in paragraph 29 that “a potential difficulty” arose from the words of paragraph 36 in Jia. Paragraph 36 was then set out, and the Tribunal continued in paragraph 30 of its judgment:

“This appears to be -- in fact is -- a reference to a different notion of dependence, in which the question is to be settled without regard to need, so that a person can be dependent on another even if he is in a position to support himself. It is certainly rather odd that in the judgment this paragraph is followed immediately, in the next paragraph, by the first of the formulations of a rule of dependence based on need and on a requirement of inability to support oneself. The Court has no formal procedure for reviewing or overruling its previous judgments or revising a view previously expressed and we can only suppose that the reference to the rule in Lebon here, followed by discussion and assertion of a different test and a formal ruling are intended to dictate a new understanding of dependence based on need, whatever may have been said in Lebon.”

In paragraphs 34 to 43 of its judgment in Jia, the Grand Chamber was answering two questions, questions 2(a) and (b), and it is important to bear in mind that those two questions were:

“2(a). Is Article 1(1)(d) of Directive 73/148 to be interpreted as meaning that ‘dependence’ means that a relative of a citizen of the Union is economically dependent on the citizen of the Union to attain the lowest acceptable standard of living in his country of origin or country where he is normally resident?

(b). Is Article 6(b) of Directive 73/148 to be interpreted as meaning that the Member States may require a relative of a citizen of the Union who claims to be dependent on the citizen of the Union or his/her spouse to produce documents, in addition to the undertaking given by the citizen of the Union, which prove that there is a factual situation of dependence?'”

Thus the ECJ was considering two questions which had not arisen in Lebon. What was the standard or degree of need required in order to establish dependency? Was a family member who was self-sufficient in respect of the basic needs of everyday life in their country of origin but who was reliant on the sponsor for a better lifestyle in one of the member states of the Community dependent on that sponsor and, whatever dependency was, how could it be proved?

Paragraphs 35 to 37 of the ECJ’s judgment in Jia are as follows:

“35.

According to the case-law of the Court, 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 (OJ 1990 L 180, p. 26), Lebon, paragraph 22, and Case C-200/02 Zhu and Chen [2004] ECR I-9925, paragraph 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, paragraph 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, paragraphs 22 and 23).

Pausing there, there is nothing in paragraphs 35 and 36 to suggest that the ECJ was there departing from the approach in Lebon and, in particular, there is nothing to suggest that any doubt was being cast on the proposition in that case that there was no need “to raise the question whether the person concerned is able to support himself by taking up paid employment.”

Having expressly endorsed Lebon in paragraphs 35 and 36, there is no reason, in my judgment, to read the discussion in paragraph 37 of the extent or the degree of need that has to be established, “having regard to their financial and social conditions they are not able to support themselves … in the State of origin”, as qualifying, much less as conflicting with, the proposition in Lebon that, if there is recourse to support to meet what are described as “essential needs in the state of origin” in paragraph 43, there is no need to determine why or to ask whether the person so supported would be able to support themselves by taking up paid employment.

Paragraph 43 of the ECJ’s judgment in Jia makes it clear that the court was considering the two questions posed: (1) the degree of need, was it basically the “essential needs” in the state of origin or the state from which the applicant was seeking to join the community national or could it be a “need” for some higher standard of living; and 2) the question of proof:

“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.”

The AIT’s approach to Jia in AP and FP (India) was not correct, and to that extent AP and FP (India) should not be followed, in my judgment, by the Tribunal in future. In following its interpretation of the effect of Jia in AP and FP in paragraph 4 of its determination (see above), the Panel materially erred in law when determining OQ and NQ’s appeal. The fact that there was no evidence that these appellants could not obtain work and no evidence that they had made enquiries about potential employment in India was not relevant for the purposes of the Directive. As the AIT pointed out in paragraph 27 of its determination in AP and FP, the position is different under the Immigration Rules (“the Rules”). A person seeking admission as a dependent relative under the Rules must be “wholly or mainly dependent” on the family member he seeks to join and the reasons for recourse to support will be relevant because dependence, for the purpose of the Rules, must be of necessity and not of choice.

Thus far, there is common ground between Mr Ahmed on behalf of the appellants OQ and NQ and Mr Palmer on behalf of the Secretary of State. Mr Ahmed submits that the appeals should be allowed outright. I am not persuaded that that would be the appropriate course. Although it is true that the Immigration Judge, in paragraph 29 of his determination, accepted that the appellants’ father made financial provision for them and, in paragraph 33, that they still lived in the family home, which was owned by their father, the facts that some financial provision was made and that they were accommodated in the family home would not be sufficient in themselves to establish dependency for the purposes of the Directive. The short answer to the submission that the appeal should be allowed is that there are simply insufficient findings of fact in the Immigration Judge’s determination on which it could be reliably concluded that the appellants either were or were not dependent on their father for the purposes of Article 22 of the Directive. There are insufficient factual findings because the Immigration Judge erroneously concluded that the appellants’ appeals failed at an earlier and non-existent hurdle; because there was no evidence that they could not obtain or had even tried to obtain work in India.

In these circumstances the appeals of OQ and NQ must in my judgment be remitted to the AIT for reconsideration.

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 for abusive or fraudulent ends. Thus a person who is in a position to support himself because, for example, he has adequate savings or a sufficient income but who nevertheless chooses to live off a Union citizen’s contributions because he prefers to keep his savings intact or to invest his income, would not, in the Secretary of State’s submission, be someone who was in need of material support. A person who artificially placed himself in a position of dependency on a Union citizen for the sole purpose of obtaining an immigration advantage, although he might then be in need of support, would be excluded from relying on the Directive by the application of the general principle in Community law that its provisions cannot be relied on for abusive or fraudulent ends. The example was given in this context of an applicant who had deliberately given up employment or some other source of income or who had divested himself of assets which would have made recourse to support from the Union citizen unnecessary.

Since those issues have not previously been raised in the present proceedings, I would prefer to express no view as to whether these two further submissions of the Secretary of State are well-founded. The “fraud or abuse” exception is well-established in principle in community law, but its application to dependency cases should be considered in the light of specific and sufficiently detailed findings of fact by the AIT. Considering the matter in the abstract, it is possible to see a distinction between a person who, for example, has sufficient savings or income but prefers to rely on support from a Union citizen and a person who could work and earn an income but who prefers not to do so and to rely on support from a Union citizen. In the former case the Secretary of State would contend that there was simply no need for material support to meet essential needs, whereas in the latter case there is a need as a matter of fact and it is unnecessary to explore the reasons for the applicant’s recourse to support.

In reality, people’s circumstances, their lives and their lifestyles are not always quite so straightforward, and any attempt to draw a bright line between determining whether an applicant has a need for material support to meet his “essential needs” and where there is recourse to support, it being unnecessary to determine the reasons for that recourse, is best considered not on the basis of hypothetical examples but on a case-by-case basis, with the benefit of clear and sufficient factual findings by the AIT. I would therefore go no further than to say that the test for dependency is to be found in Lebon, read together with Jia, and insofar as AP and FP decided that the latter had effectively overruled the former, it was wrongly decided and should not be followed.

Turning to SM’s case Senior Immigration Judge Martin erred in applying AP and FP to Jia (see paragraph 23 of the determination above) and, just as the panel erred in OQ and NQ in deciding that if the appellants were not “family members” under Article 22 of the Directive, they could not be “other family members” under Article 32 because they had not left India, so Senior Immigration Judge Martin erred in concluding that SM could not be considered as an “other family member” because he had never lived with the sponsor in Europe: see paragraph 6 of the Panel’s determination in OQ and NQ, paragraph 25 of Senior Immigration Judge Martin’s determination and paragraph 23 of Bigia above.

There were therefore undoubtedly errors of law in the determination in SM’s case, but Mr Palmer submitted that remitting the matter to the AIT was not appropriate because those admitted errors were not material errors of law, for two reasons. He submitted, firstly, that on the Senior Immigration Judge’s factual conclusions, there was no prospect that the appellant, SM, could establish that he was a dependant. The Senior Immigration Judge said, in paragraph 20 of her determination:

“There is no suggestion that the Appellant is unable to work and indeed he now says that he is in fact working at a kiosk with his stepmother.”

Mr Palmer also referred to paragraph 23 of the determination, which merely said that money was sent by the sponsor on a regular basis and submitted that that, without more, was insufficient to establish dependency.

The difficulty I find with the submissions is the same difficulty that makes it inappropriate to allow outright the appeals of OQ and NQ. Because the Senior Immigration Judge considered that SM’s appeal failed because any dependency had to be of necessity and not of choice in line with the Tribunal’s decision in AP and FP, there was no consideration, certainly none is apparent in the determination, whether the appellant was paid at all for the work he undertook with his stepmother at the kiosk and, if he was paid, whether his pay was sufficient to meet his essential needs, nor was there any detailed consideration of the money that was being sent by the sponsor: how much it was, whether it met the appellant’s essential needs or whether those needs were met by the job at the kiosk and the money was being sent simply in order to enable the appellant to enjoy a somewhat better lifestyle.

The second point raised by Mr Palmer was the Senior Immigration Judge’s conclusion, in paragraph 26 of the determination, in which she said:

“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.”

Mr Palmer submitted that, in so concluding, the Senior Immigration Judge was prescient because her determination predated the decision of the Court of Appeal in KG and AK (Sri Lanka) v SSHD [2008] EWCA Civ 13, in which Buxton LJ said in paragraph 79:

“Article 3(2)(a) is expressed in the present tense: in the country from which they have come are dependants or members of the household of the Union citizen. … While it will not literally be the case that he is at that time still dependant on the Union citizen or a member of his household in the country from which he has come, it makes sense that he should have been so dependant or a household member very recently.”

(Emphasis added by Maurice Kay LJ in the case of Bigia. See paragraph 42 of that judgment.)

In Bigia Maurice Kay LJ said, in paragraph 43, that Metock did not impact on inter alia the proposition to which I have just referred. He added:

“I accept Mr Palmer's submission that it is only those OFMs who have been present with the Union citizen in the country from which he has most recently come whose ability or inability to move with him could impact on his exercise of his primary right. This also explains Buxton LJ's requirement of very recent dependency or household membership. Historic but lapsed dependency or membership is irrelevant to the Directive policy of removing obstacles to the Union citizen's freedom of movement and residence rights. Unlike Article 2.2 "family members", it cannot be said of them that "the refusal … to grant them a right of residence is equally liable to discourage [the] Union citizen from continuing to reside in that Member State" (Metock, paragraph 92). Accordingly, I conclude that these aspects of Article 3.2(a) are not affected by Metock and that, in these respects, KG and AK remains good law.”

On behalf of SM Mr Jafferji submitted that, whether an application was made sufficiently recently for the purposes of the Directive and whether dependency was or was not recent, were very much questions of fact and degree. There was no hard-and-fast time limit. What was recent in that context would depend on the particular circumstances of each case. In KG’s case, there had been a very substantial delay of many years. In the present case, the lapse of less than a year between the sponsor arriving in the United Kingdom and the appellant making his application did not inevitably lead to the conclusion that any dependency here was, in Maurice Kay LJ’s words, “historic or lapsed dependency”. Although the Senior Immigration Judge was undoubtedly prescient to an extent, she was not able to address the test formulated by Buxton LJ in paragraph 79 of his judgment in KG and AK. In these circumstances it would not in my judgment be right to dismiss SM’s appeal. The appeal should be remitted to the AIT and he should have the opportunity to explain why he was a dependent and, if so, why his dependency was sufficiently recent so as to bring his case within the terms of the Directive.

For completeness I should note that Maurice Kay LJ granted SM permission to appeal on the basis that it was arguable that he came within Regulation 8(2) of the Regulations. Mr Jafferji made it clear that he wished to reserve his right to argue that point on the remitted appeal but, since the appeal has to be remitted on the other grounds that I have mentioned, I feel that it is unnecessary to say any more about the point.

I would therefore remit both of these appeals to the Asylum and Immigration Tribunal.

I agree.

So do I, and so both appeals will be allowed and in both cases will be remitted to the AIT for reconsideration.