OQ (India) v Entry Clearance Officer

On a renewed application for permission to appeal, an arguable error of law may arise where an appellate immigration tribunal identifies and applies the correct dependency test but the evidence arguably cannot sustain its conclusion. A perversity challenge remains difficult, but permission may be granted where the evidence, apparently accepted below, could establish dependency.

For “other family members”, household membership under article 3.2(a) requires consideration of whether the applicants belonged to the Union citizen’s household at the material time. The membership must be very recent. The provision confers procedural rather than substantive entitlements, unlike article 2.2(a).

The applicant sought permission to appeal against an Asylum and Immigration Tribunal reconsideration determination concerning applications by family members in India to join their father, a Portuguese citizen exercising Treaty rights in the United Kingdom.

The original immigration judge considered the matter by reference to the immigration rules and did not address dependency under article 2.2(c), or household membership under article 3.2(a). On reconsideration, the Tribunal considered dependency by applying the test stated in Jia (Free Movement of Persons), but concluded that it was not established. The alternative household-membership issue was not effectively considered under the developing law following Metock and Bigia.

The central questions were whether the evidence arguably supported dependency and whether the applicants had a real prospect of establishing recent membership of the sponsor’s household.

1. Permission granted. Lord Justice Maurice Kay granted permission to appeal on both proposed grounds. The application was a renewed application after permission had initially been refused on paper.
2. As to article 2.2(c), the original immigration judge had not addressed dependency and had approached the case solely under the immigration rules. The reconsideration determination did set out and apply the dependency test from Jia (Free Movement of Persons), which Bigia treated as the appropriate test. Nevertheless, the applicant argued that the conclusion was perverse. Although such a challenge was difficult to sustain, the evidence about the applicants’ living circumstances in India and their reliance on the sponsor for accommodation and money had apparently been accepted by the original judge. That evidence was arguably sufficient to establish dependency and could sustain a perversity challenge.
3. As to article 3.2(a), the applicants had lived in the sponsor’s household in India before he moved to the United Kingdom. Following Bigia and the approach explained by Buxton LJ in KG (Sri Lanka) & AK (Sri Lanka) v SSHD, membership of the household in the country from which the Union citizen came had to be very recent. The relevant period between the sponsor’s departure and the applications might therefore be decisive.
4. The court could not say that the applicants had no prospect of success. They had a real, rather than merely fanciful, prospect on both grounds. The proposed appeal was to be listed for half a day before a three-member court, one member potentially being a High Court judge.

• Court of Appeal (Civil Division): On 11 June 2009, permission to appeal was granted on the dependency and household-membership grounds. Permission had previously been refused on the papers on 15 April 2009.
• Asylum and Immigration Tribunal: The reconsideration determination applied the dependency test but did not produce a permissible conclusion on the evidence, and the household-membership issue had not been effectively considered.
• Immigration Judge: The original determination addressed the applications by reference to the immigration rules and did not address dependency or household membership under the Directive.