RB (India) & Anor v Secretary of State for the Home Department

For EEA family-permit purposes, dependency is assessed by asking whether the family member needs the Union citizen’s or spouse’s material support to meet essential needs in the state of origin, or the state from which the family member has come, when applying to join the Union citizen. Past means of support may therefore be relevant to whether the claimed dependency is genuine and continuing. A person with adequate independent means cannot ordinarily create dependency by choosing not to use those means and instead receiving money from the sponsor. A tribunal may weigh interview answers, prior factual findings and investigative reports together. An alleged error in the weight given to one item of evidence will not establish an arguable error of law where the decision rests on the overall evidential picture.

RB and RN, Indian nationals and children of a Portuguese national working in the United Kingdom, renewed applications for permission to appeal against decisions of the Asylum and Immigration Tribunal refusing appeals concerning EEA family permits. The applications were adjourned on a restricted basis to address findings concerning dependency and, for RB, residence in the sponsor’s household.

The Tribunal had found that neither appellant had established dependency. In RB’s case it had also found that he was not resident in the sponsor’s household, having not lived with him for many years. The central questions were whether the Tribunal had erred in law by relying on earlier findings, interview evidence and field-trip material when assessing dependency, and whether its conclusion on same-household residence was legally flawed.

1. Applications refused. The appellants showed no real prospect of establishing an error of law in the Tribunal’s decisions.
2. Dependency was to be understood in accordance with the approach adopted in KG & AK (Sri Lanka) v SSHD [2008] EWCA Civ 713, drawing on Jia v Migrationsverket Case C-01/05: the family member must need the Union citizen’s or spouse’s material support to meet essential needs in the state of origin or the state from which the family member has come, at the time of applying to join the Union citizen. It was not a permissible approach to treat a person with adequate independent means as dependent merely because that person chose to stop using those means and accepted money from the sponsor.
3. In RN’s case, the Tribunal was entitled to assess the whole evidential picture. It could attach weight to inconsistencies and gaps in the mother’s interview answers, the appellant’s own unsatisfactory answers, the earlier factual findings about the family’s fishing business and the field-trip material. The disadvantage caused by the brief field report did not invalidate the conclusion because it was only one part of the evidence.
4. In RB’s case, the Tribunal was entitled to start from the earlier adjudicator’s judicial findings that the appellant had conducted a fishing business. The appellant had not alleged a later change in circumstances and had maintained that he had never worked. The Tribunal had considered the later field report and was entitled to find that money channelled through the sponsor from other family members did not establish dependence on the sponsor. The sponsor’s modest, substantially undiminished capital and limited income also supported that conclusion.
5. The Tribunal was likewise entitled to conclude that RB was not a member of the sponsor’s household. He had not lived in the same household for approximately 20 years; the fact that he lived in his father’s house did not disclose an arguable legal error.

• Court of Appeal (Civil Division): renewed applications for permission to appeal were refused on the restricted issues of dependency and, in RB’s case, same-household residence.
• Asylum and Immigration Tribunal: dismissed the appellants’ appeals against refusals to issue EEA family permits; in RB’s case it found no dependency and no residence in the sponsor’s household.