SM (India) v Entry Clearance Officer (Mumbai)

Under European Union free movement law, dependency is a factual state in which a Union citizen or spouse provides material support needed to meet a relative’s essential needs in the state of origin when the relative applies to join the Union citizen. The reasons for seeking that support, including whether the relative could obtain employment, are irrelevant.

For an extended family member, historic or lapsed dependency is insufficient. Dependency or household membership must be sufficiently recent to relate to the Union citizen’s exercise of free movement rights. Both dependency and recency require case-specific findings of fact.

Three adult Indian citizens applied for EEA family permits to join Portuguese sponsors working in the United Kingdom. OQ and NQ were their sponsor’s adult daughters. SM was his sponsor’s cousin. The Asylum and Immigration Tribunal dismissed their appeals, reasoning that dependency had to arise from necessity rather than choice and relying on their ability to work. It also treated previous residence with the sponsor in Europe as necessary for extended-family-member status.

The Secretary of State accepted that OQ and NQ’s appeals should be remitted but resisted SM’s appeal. The central questions were the correct meaning of dependency under European Union free movement law and the temporal connection required for an extended family member.

1. All appeals allowed and remitted. The Tribunal had applied the wrong legal approach to dependency. Its factual findings were insufficient for the Court of Appeal to determine whether any appellant satisfied the correct test. Each appeal was therefore remitted to the Asylum and Immigration Tribunal for reconsideration.

2. The test for dependency was to be found in Lebon, read together with Jia. Dependency is a factual situation in which the Union citizen or spouse provides material support needed to meet the family member’s essential needs in the state of origin, or the state from which the person came, when the application is made. The inquiry concerns essential needs rather than support for a higher standard of living. Once there is relevant recourse to support, the decision-maker need not investigate why the person relies on it or whether the person could support himself or herself by taking employment.

3. The Tribunal’s decision in AP and FP (India) had wrongly treated Jia as effectively overruling Lebon. Jia expressly endorsed Lebon and addressed the degree of need and the means of proving it. To the extent that AP and FP (India) decided otherwise, it was wrongly decided and should not be followed. Evidence that an applicant had not sought work was therefore irrelevant under the Directive, although it could be relevant under the Immigration Rules.

4. An extended family member need not establish prior lawful residence in another member state. Nevertheless, dependency or household membership must be sufficiently recent and connected with the country from which the Union citizen most recently came. Historic or lapsed dependency is insufficient. Whether SM’s alleged dependency, ending less than a year before his application, was sufficiently recent was a question of fact and degree for the Tribunal.

5. The court expressed no concluded view on suggested qualifications concerning applicants with independent assets or artificially created dependency. Although the Community-law exception for fraud or abuse was established in principle, its application to dependency required specific and sufficiently detailed factual findings.

• Court of Appeal (Civil Division): The appeals were allowed and all three cases were remitted to the Asylum and Immigration Tribunal for reconsideration.
• Asylum and Immigration Tribunal — OQ and NQ: On reconsideration, a panel held that the original Immigration Judge had made no material error of law and maintained the dismissal of their appeals.
• Asylum and Immigration Tribunal — SM: A Senior Immigration Judge dismissed the appeal, finding that SM was neither dependent on his sponsor nor eligible as an extended family member.