Lim v Entry Clearance Officer Manila

LORD JUSTICE ELIAS: This appeal raises the question whether the respondent, who has sufficient savings to meet her own needs but chooses instead to rely on financial support from a related EU citizen so that she will be able to pass on her assets to her children, can be regarded as a direct dependent relative in the ascending line within the meaning of regulation 7(1)(c) of the Immigration (European and Economic Area) Regulations 2006. The issue is one of EU law because regulation 7(1)(c) in turn gives effect to that part of the definition of "family member" found in Article 2.2(d) of the Directive 2004/38/EC, commonly known as the Citizens Directive. The significance of being a family member is that such a person, whether or not he or she is an EU citizen, is entitled to join EU citizens who have moved to another EU state in the exercise of their free movement rights: see Article 5.1 of the Directive, reflected in Article 12 of the EEA Regulations.

The respondent sought to exercise that right. The Upper Tribunal concluded, as had the First Tier Tribunal, that she was a dependent relative and was entitled to entry as a family member. The Secretary of State now appeals against that decision.

The respondent has not taken part in the appeal. It appears that she is no longer interested in exercising her right to join the family, if indeed she has such a right; nor did she wish to participate in the appeal. But the parties have been unable to reach an agreement as to how they should dispose of this appeal. Accordingly, the Secretary of State has pursued the appeal and the court has only had the advantage of hearing from one party. But Mr Facenna, counsel for the Secretary of State, has put all the relevant authorities before us and we have had the advantage of the typically careful reasoning of Upper Tribunal Judge Storey, who accepted the respondent's submissions when they were advanced below.

The material facts can be briefly summarised. The respondent is a Malaysian citizen aged 60. She is divorced and has two adult daughters, both of whom live in the UK, one being married to a Norwegian national and the other to a Finnish national. In July 2012 she sought entry clearance as a family member of an EU national, namely her Finnish son-in-law.

The respondent has her own home in Malaysia, valued at some £80,000, which she owns in her sole name free of any mortgage. She lives with her mother and ten-year-old grandchild, for whom she is the guardian. She formerly worked as a laboratory analyst and has money in an Employee's Provident Fund, a compulsory savings and retirement plan for private sector workers in Malaysia. In February 2012 this was worth in excess of £55,000. She can withdraw this sum in full at any time. She also has a small amount of savings of approximately £1,650 in a bank account.

Following her retirement, the respondent relied on her savings to cover her living expenses, which were around £150 to £200 per month. However, since early 2012 the daughter married to the Finnish son-in-law has sent her remittances of some £450 per quarter. She uses this to meet her expenses and has not had to draw on her capital. She could, however, meet her essential needs by drawing down on her retirement savings for at least ten, possibly 20, years, but she does not wish to draw upon that fund because she wants to pass it on as an inheritance to her children and grandchildren.

It is not, however, suggested by the Secretary of State that either she or her daughter has artificially attempted to create a situation of dependency so as to establish an entitlement to enter the UK, so there is no question of abuse of rights in this case.

The relevant regulation in issue is Regulation 7(1)(c). It provides that:

The test for dependency has been considered on a number of occasions by the Court of Justice of the European Union. There are three relevant judgments. The first is Centre Public d'Aide Sociale (Public Social Welfare Centre) Courcelles v Marie-Christine Lebon (C/316/85) [1987] ECR 2811 ("Lebon"), which concerned a referral from a court in Belgium. The claimant and her father were French nationals living in Belgium. The father had worked in Belgium but had retired. The claimant had always lived in Belgium, originally with her parents, save for a short period working in France. She claimed a social security benefit from the Belgian authorities. Her entitlement to it depended upon whether she was a "dependent family member". The case did not directly concern the Citizens Directive, which was not in existence at that time. It concerned a different European provision, namely Article 7(2) of Regulation 1612/68. However, Regulation 10 was drafted in similar terms to Article 2(2) of the Citizens Directive and gave a right of entry to dependent ascendants of a migration worker.

A number of issues were raised in that reference. Question 3 posed the following question:

The debate before the court was whether it was enough that material support was in fact provided by a relative or whether it was necessary to consider, objectively, whether the putative dependent was in a position to support himself, such as by gaining employment. The Advocate General considered that the latter was the correct approach. She said this:

The court disagreed with this analysis. They considered that the question was whether as a matter of fact resources were provided to meet the needs of the putative defendant and gave their reasons as follows:

The context of the Lebon decision was that the descendant did need the support of her father to meet her needs. However, it is right to say that, read in isolation, paragraph 24 suggests that such dependency is not necessary and that the only question is whether in fact the EU worker provides financial support.

The issue was considered again in the second material case, Jia v Migrationsverket (KC/1/05), [2007] QB 545. This was a case heard by the Grand Chamber. A Chinese couple wished to enter Sweden to join their son, who was married to a German woman working in Sweden. One of the issues in the case was what it means to say that someone is dependent on his or her relatives. This again was not concerned directly with the Citizens Directive, but rather Council Directive 73/148/EEC, which was concerned with the abolition of restrictions on free movement. However, this also used the concept of dependency. Article 1(d) provided that a state should abolish restrictions on "the relatives in ascending and descending lines of such nationals and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality". The relevant questions posed in that case were as follows:

The Advocate General concluded that:

The court reached a similar conclusion. It referred to Lebon and then summarised the relevant principles as follows:

The court then answered the two further questions in the following way:

There is arguably some conflict between what is said at paragraphs 35 to 36 on the one hand, and in paragraph 37 on the other. The earlier paragraphs, consistently with the literal meaning of paragraph 24 in Lebon, suggest that the only question is whether material support is in fact being provided for the family member. That might suggest that if it is provided, that person is a dependant irrespective of his or her own financial situation. Whatever independent resources he or she has, they are irrelevant. However, paragraph 37 presupposes that in order to establish dependency it is necessary first to conclude that having regard to their financial and social conditions, the family member or members concerned are not in a position to support themselves. That is also supported by the answers given in paragraph 43, where the court says that the claimant must need the material support and there would need to be proof of this. As I have said, that analysis is in line with the approach of the Advocate General, albeit that the court does not use the language of economic independence.

Indeed, on one view of paragraph 37, by referring to the need to have regard to "the financial and social conditions", the court might have been taken as suggesting that there is no dependency if, as a matter of fact, the putative dependent relative was in a position to obtain employment in the place of origin. That would of course be to roll back on the analysis in Lebon. That is how the Asylum and Immigration Tribunal interpreted Jia in the case of SM (India) [2009] EWCA Civ 1426.

In SM there was no evidence in that case that the claimant could not obtain work in the country of origin and the AIT considered that the proper reading of paragraph 36 of Jia meant that as a consequence he could not establish the requisite dependency. The Court of Appeal held that this was a misreading of the paragraph and that Jia was not intending to depart from Lebon. Sullivan LJ made this clear in paragraphs 20 to 21. These observations confirmed that it is not necessary for a person to show that he cannot work before claiming dependency. They do not, however, specifically address the issue arising here, namely whether a situation of dependency requires not merely the fact of support, but also the need for the supported party to show that he or she would not have sufficient resources to meet his or her own needs. Indeed, later in his judgment Sullivan LJ made certain observations which show that he felt that this was still very much an open question:

The last sentence of paragraph 27 precisely reflects the argument now being advanced by the Secretary of State. She submits that the respondent has no need to rely on the resources of her daughter as a matter of fact; she is financially independent.

In a judgment handed down three weeks after SM, namely Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358, [2010] 2 CMLR 20, Goldring LJ (with whom Mummery and Sullivan LJJ agreed) again considered the question of dependency and the true ratio of Jia. This was a case on the Citizens Directive. A 62-year-old Portuguese national had come to the UK in 2004 to join her son. At that point she was able to support herself in Portugal. Subsequently she relied upon her son for support. She claimed state pension credit. This depended upon whether she was a dependent family member within the meaning of the Citizens Directive. The Secretary of State said that, in accordance with Jia, she was not since she could support herself in her country of origin at the time when she applied to come to the UK. She contended that she had become dependent on her son since leaving Portugal and that this was enough to make her a dependent family member within the meaning of the Citizens Directive. The Court of Appeal agreed. Goldring LJ distinguished Jia on the grounds that it was concerned with a different directive. He held that the Citizens Directive went further than earlier Directives on freedom of movement and did not require in all cases that the question of dependency should be assessed by reference to the circumstances in the state of origin. However, Goldring LJ accepted (paragraph 61) that where the only basis of an alleged dependency was support in the state of origin, it would be appropriate to apply Jia, citing the decision of the Court of Appeal in Bigia v Entry Clearance Officer [2009] EWCA Civ 79, [2009] 2 CMLR 42.

I do not, therefore, read Pedro as affecting the appropriate principles to apply in a case of this nature; it does not address the specific question that we have to resolve. In any event, I very much doubt whether it can now stand in light of the third and most recent decision of the CJEU, namely Reyes v Migrationsverket 2014/C-423/12, [2014] QB 1140. Reyes was concerned with the question whether an EU direct descendant aged 21 or older could be treated as a dependant within the meaning of Article 2.2(c) of the Citizens Directive. The same principles would apply equally to ascendants under paragraph (d).

The case concerned a 25-year-old Philippine national who said that she had been unable to find work in the Philippines. She was financially supported by her mother, who had become a German citizen, and her mother's cohabiting partner, a Norwegian citizen, who both resided in Sweden. The first question in the reference by the Swedish court was, in essence, whether, in order to be regarded as dependent and so fall within the concept of family member, a direct descendant had to show that he had tried without success to find employment in his country of origin or to obtain a subsistence allowance or some other means of supporting himself. Both the Advocate General and the Court held that this was not necessary, which was of course entirely in accordance with the earlier authorities. The Advocate General summarised his conclusions as follows (paragraph 69):

In my judgment, this makes it unambiguously clear that it is not enough simply to show that financial support is in fact provided by the EU citizen to the family member. There are numerous references in these paragraphs which are only consistent with a notion that the family member must need this support from his or her relatives in order to meet his or her basic needs. For example, paragraph 20 refers to the existence of "a situation of real dependence" which must be established; paragraph 22 is even more striking and refers to the need for material support in the state of origin of the descendant "who is not in a position to support himself"; and paragraph 24 requires that financial support must be "necessary" for the putative dependant to support himself in the state of origin. It is also pertinent to note that in paragraph 22, in the context of considering the Citizens Directive, the court specifically approved the test adopted in Jia at paragraph 37, namely that:

This, as I say, makes the analysis in Pedro highly problematic. I doubt whether it is compatible with Reyes.

Judge Storey, in his judgment, carefully analysed the arguments in favour of the position that the mere fact of support was not enough, and he concluded that the state of EU law compelled that conclusion. He did not, however, have the benefit of the Reyes decision.

In support of his conclusion, he referred to the following observation of Goldring LJ in the case of Pedro at paragraph 62:

I respectfully do not accept that these observations of Goldring LJ made good Upper Tribunal Judge Storey's conclusion. Receipt of support is a necessary but not sufficient condition. It is still necessary to determine that a family member is dependent in the sense of being in need of the assistance. I accept that the authorities clearly establish that it is irrelevant why he or she is dependent, whether because he has given his money away or because he is unwilling to work (save possibly where an abuse of rights can be established), but paragraph 62 in Pedro does not establish that dependency is determined by the mere fact that the EU national makes resources available to the dependent relative.

I confess that even without the assistance of the judgment in Reyes, I would have thought that the concept of dependency must mean that the claimant is not financially independent and therefore requires support. Upper Tribunal Judge Storey rejected the analysis in part because he did not consider that there was a principled basis for concluding that such a person was not a dependant whilst someone who refused to get a job could be a dependant. Sullivan LJ in SM (India) at paragraph 27 (produced above) had suggested that these situations might be distinguished, but the judge was not persuaded that they should be. He said this:

I see some force in the observation that there is no moral or policy justification for distinguishing between these two situations, but it seems to me that the distinction is now very firmly established in the authorities.

In my judgment, the critical question is whether the claimant is in fact in a position to support himself or not, and Reyes now makes that clear beyond doubt, in my view. That is a simple matter of fact. If he can support himself, there is no dependency, even if he is given financial material support by the EU citizen. Those additional resources are not necessary to enable him to meet his basic needs. If, on the other hand, he cannot support himself from his own resources, the court will not ask why that is the case, save perhaps where there is an abuse of rights. The fact that he chooses not to get a job and become self-supporting is irrelevant. It follows that on the facts of this case, there was no dependency. The appellant had the funds to support herself. She was financially independent and did not need the additional resources for the purpose of meeting her basic needs.

I do not consider that this is a case where it would be appropriate to remit the matter to the Upper Tribunal because, in my view, on the facts there can only be one answer to the issue which we have to consider. Accordingly, I would uphold the appeal. I would conclude that she was not dependent on her relatives and was not therefore a family member within the meaning of Article 2.2 of the Citizens Directive.

LORD JUSTICE McCOMBE: I agree.

LORD JUSTICE RYDER: I also agree.