Entry Clearance Officer, Manila v Siew Lian Lim

1. 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.”

2. 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.

3. 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.

4. 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.

5. 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.”

6. 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.”

7. 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.

8. 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.”

9. 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.

10. 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 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.

27. 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.”

11. Mr Tufan’s response was that the claimant fell within the category of someone who had artificially placed herself in a position of dependency and that Sullivan LJ clearly saw there to be a problem with such cases, although he did not express a view because the issue had not been raised previously in the proceedings. There was a significant difference between a person being forced to work and a person being expected to draw on savings. It was also pertinent, said Mr Tufan, that there was no suggestion that the claimant’s admission or non-admission to the UK had any impact on the son-in-law’s exercise of Treaty rights.

12. Mr Sowerby submitted that I should regard the ECO’s grounds as a simple disagreement with the judge’s findings of fact. The Court of Justice had made clear in Centre Publique d’Aide Social de Courcelles v Lebon [1987] ECR 2811 (“ Lebon ”) that dependency was a purely factual question and reasons did not come into it. There was no suggestion in this case of fraud or an abuse of rights: the claimant’s reasons for not drawing on her assets after January 2012 were entirely legitimate features of normal family life – the wish to leave a financial legacy to her descendants. It was not an artificially contrived situation. If the claimant came to the UK she would continue to be dependent. To deny her status as a family member went against the whole ethos of free movement of families.

13. In a written addendum sent to the Tribunal and Mr Tufan shortly after the end of the hearing, Mr Sowerby sought to address Mr Tufan’s argument that the judge’s approach would create a millionaire’s charter. Emphasising that Sullivan LJ called for a case-by-case approach, he submitted that the claimant’s circumstances were very different to a wealthy person who simply wishes to create an artificial dependency for the sole purpose of obtaining an immigration advantage. The claimant had not deliberately given up work or divested herself of assets in order to manufacture a dependency.

14. In Lebon the claimant and her retired father upon whom she depended for support were French nationals living in Belgium, he having remained in Belgium after he retired. Having worked in France for two years, she returned to Belgium, but had no work. She claimed subsistence in Belgium. Addressing the meaning of the term “dependent relative” in Article 10 of Regulation 1612/68, the Court held:

"22. Article 10(1) and (2)…must be interpreted as meaning the status of a dependent member of a worker's family is a result of a factual situation. The person having that status is a member of the family who is supported by the worker and there is no need to determine the reasons for recourse to the worker's support or to raise the question whether the person concerned is able to support himself by taking up paid employment.

23. That interpretation is dictated 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 … moreover it corresponds to the wording of the provision in question …

24 … the status of dependent member of a worker's family, to which Article 10(1) and (2) of [the] Regulation refers, is the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker's support."

15. In Jia , which concerned the interpretation of the term “dependence” in Article 1(1)(d) of Directive 73/148 the Chinese parents-in-law of a German national who worked on a self-employed basis in Sweden sought to establish their dependence on the German national for the purposes this Directive. In China the couple were self-sufficient; a dependency only arose in Sweden because the parents' income in China was insufficient for them to live off in Sweden. The question relevant to us which the Court addressed was: "Is article 1.1(d) of Directive 73/148/EEC 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 where he is normally resident?”

16. By way of answer the Court of Justice stated:

“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).

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.”

17. In the course of surveying the jurisprudence and other relevant materials the Court of Appeal in Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358 at [42]-[45] noted the following:

“The Guidance from the Commission to the European Parliament

"…provide guidance to Member States on how to apply the Directive…on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States correctly; with the objective of bringing a real improvement for all EU citizens and of making EU an area of security, freedom and justice."

"In order to determine whether family members are dependent, it must be assessed in the individual case whether having regard to their financial and social conditions, they need material support to meet their essential needs in their country of origin or the country from which they came at the time when they applied to join the EU citizen ( i.e. not in the host Member State where the EU citizen resides ). Judgments on the concept of dependency of the court did not refer to any level of standard of living for determining the need for financial support by the EU citizen."

18. Having heard the submission of the parties so far, several things seem clear from the agreed findings of fact:

(i) the claimant’s situation is not characterised by any abuse of rights. It was her daughter who initiated the sending of remittances and it is not suggested that she or her daughter or EEA principal son-in-law did so for the sole purpose of creating a situation of dependence;

(ii) despite the reference in the ECO refusal to the claimant having an “income” from her Employers Provident Fund, what she had was a capital sum and except for a short period after she retired she had not drawn on it to support herself; her daughter had stepped in.

19. However, these findings leave undecided the matter of whether or not the claimant’s essential needs can be said to be met by these remittances.

20. There are a number of considerations that might appear to support the ECO’s position that the remittances sent to the claimant demonstrate that she was not dependent.

21. Nevertheless, in my judgement these considerations cannot overcome the overriding principle established by the jurisprudence of the Court of Justice that dependency is a matter of fact and reasons are irrelevant: see [22] of Lebon and [36] of Jia . As observed by Goldring LJ in Pedro, at [62]:

“As Lebon made clear, whether someone has the status of a dependant family member is a question of fact. Such a status is characterised by the material support for that family member provided by the Union national who has exercised his free right of movement. Why the family member is dependent does not matter.”

22. The only qualification that the Court of Justice has ever made to this principle is that there must not be an abuse of rights. Accordingly, subject only to there being no abuse of rights, the jurisprudence clearly allows for dependency of choice.

23. As regards Mr Tufan’s suggestion that by saying that dependency should be assessed by reference to “the minimum level of subsistence in the country of normal residence”, Advocate General Geehoed in Jia was implying that dependency would only arise if a claimant could show he could not support himself at the minimum level of subsistence, I do not see that the Advocate General was doing anything more than trying to identify a benchmark of material need. In any event, the Court of Justice did not endorse his approach notwithstanding that the question it addressed did refer to such a benchmark ("Is article 1.1(d) of Directive 73/148/EEC 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 where he is normally resident?”). For the Court in Jia to have adopted the Advocate General’s approach would have required it to identify a need for the referring court to have examined whether the parents-in-law’s means were above or below the minimum level of subsistence in Germany. Further, the Commission’s Guidance (see above [17]) records that: “[j]udgments on the concept of dependency of the court did not refer to any level of standard of living for determining the need for financial support by the EU citizen."

24. Even though it seems clear that not all of the sum sent in remittances (amounting to around £150-£200 a month) is for the claimant (some is intended to help support her mother and the 10 year old grandchild), for dependency to arise it is not necessary that a person be wholly or even mainly dependent. If a person requires material support for essential needs in part, that is sufficient.

25. 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 to take up employment: see above Lebon [22 ] . I readily acknowledge that in SM (India ) Sullivan LJ saw it as possible that there was a distinction relating to the situation of a claimant who preferred living off savings and a claimant who preferred not to work (see above [14]). But it is very difficult to discern any principled basis for differentiating between the two different forms of dependency of choice when the test is simply a question of fact and the reasons why there is dependency are irrelevant. Indeed, if anything, one might have thought that expecting a retired person to utilise existing financial resources after a lifetime of work is more problematic than expecting a young able bodied person to earn a wage.

26. There is the additional problem that any attempt to erect such a distinction would entail examination of personal circumstances that was, or might be, intrusive, necessitating questions, in this case for example, about what are the reasonable accommodation needs of the claimant’s mother and the 10 year old child presently living in her house, in order to establish whether it was realistic to expect her to sell her existing house.

27. To the extent that the jurisprudence clearly considers that an examination of personal circumstances is relevant, in respect of the claimant, it would appear that her situation is one in which she has a sentimental attachment to her home as well as it being a potential financial asset. Both the savings she has and the house she owns are regarded as assets she wishes to preserve for her descendants. She is intending to set up trusts for her children. They are earmarked, that is to say, out of legitimate inter-generational family considerations. Hence, whilst it is correct that in the claimant’s case it is not suggested that refusal of entry clearance would have any deterrent effect on the EEA principal or her daughter-in-law in terms of their continuing to live in the UK and his continuing to exercise Treaty rights, it remains that the claimant’s own right to respect to family and private life would be adversely affected if she were required to sell her house or live off her savings (as the ECO suggested she could). The desire to leave an inheritance for one’s descendants is a matter that would appear to fall within the scope of Article 8 of the ECHR (Article 7 of the Charter of Fundamental Rights).

28. Accordingly, I would reject the ECO’s submissions and conclude that the First-tier Tribunal Judge did not err in law in allowing the appeal. In so doing she correctly applied established jurisprudence.

29. Although I have not been asked to consider making an order of reference to the Court of Justice in Luxembourg by either party, I consider it pertinent to explain why I have decided not to make one. It will be apparent from the above that although I have highlighted competing considerations regarding interpretation of the term dependency, I have been able to resolve them for myself. If I had considered that the interpretation of dependency was not acte clair I would have given serious consideration to whether or not to make an order for reference pursuant to Article 267 of the Treaty on the Functioning of the European Union.

30. As set out in R v International Stock Exchange of the United Kingdom and the Republic of Ireland, ex parte Else (1982) Limited [1993] QB 534, 545D the test under Article 267 is whether a judge considers that the Community law issue is “critical to the court’s final decision”. In ex parte Else , Sir Thomas Bingham went on to say that when the issue is critical “the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself”.

31. I must confess to having some difficulty with treating the “complete confidence” formulation as a perfect mirror of the test of whether it is critical or necessary to enable the court to give judgment. In the same passage Sir Thomas stated that “I am not here attempting to summarise comprehensively the effect of such leading cases as HP Bulmer v J Bollinger SA [1974] Ch.401, Srl CILFIT and Lanificio di Gavardo SpA v.Ministry of Health [1982] ECR 3415 and R v The Pharmaceutical Society of Great Britain ex parte The Association of Pharmaceutical Importers [1987] 3 CMLR 951”, cases which essentially set out the doctrine of acte clair . Later on in another passage, Sir Thomas appears to formulate the test in terms of whether the application of Community law is or is not “so obvious as to leave no scope for any reasonable doubt”. In the instant case I am satisfied that a reference is not critical or necessary in order for me to make my decision and that there is no scope for reasonable doubt about that. I am confident that the Court of Justice would not adopt the interpretation advocated by the ECO. Whether, however, I could say I have “complete” confidence on this question is perhaps less certain.

32. In the end I do not consider that my decision should turn on what may well be a semantic concern because, unlike the situation for the highest court, for every other court the decision as to whether to make a reference is a discretionary one. Of course, if I had found the issue was not acte clair , the fact that I am considering the case at the level of the Upper Tribunal would not matter. Case C-210/06 Cartesio has established that. Nevertheless, in my judgement it is a relevant factor that the Court of Appeal in SM (India ) identified the very scenario with which I am faced in this case as a problematic one. The Court only decided not to rule on it because it had not previously been raised in the submissions, but left very clear that it saw the issue as of importance. In this sense the Court could be said to have already taken some ownership of the issue as a problematic one.

33. In my judgement in the above circumstances the appropriate course I should take is to maintain the position I have adopted above, leaving for the ECO to lodge an application for permission to appeal to the Court of Appeal so that, if I was persuaded by it to grant permission, the Court of Appeal would then have the opportunity to return to the issue in a case where it was material to the outcome of the appeal.

34. To conclude: