Tommy Bustamante Delos Reyes v The Secretary of State for the Home Department

Dependency under Immigration (European Economic Area) Regulations 2006, regulation 7 is a factual and present condition. It requires a broad assessment of whether the family member is genuinely reliant on the EEA national or spouse for essential living needs, having regard to financial, physical and social circumstances.

Being unlawfully present and unable lawfully to work is relevant evidence, but does not itself establish dependency. An applicant must satisfy the requirement on the evidence available when the respondent decides the application or, on an appeal, at the hearing. Earlier dependency will not suffice if present dependency is not proved.

The appellant, a Philippine national, applied for a residence card as the dependent father-in-law of a French national exercising EEA rights. The Secretary of State refused the application. The First-tier Tribunal dismissed his appeal, finding that dependency had not been established and that he was no longer dependent after obtaining work.

The Upper Tribunal held that the First-tier Tribunal had made material errors of law, set aside its decision, and directed further evidence about the appellant's employment and accommodation. At the resumed hearing the appellant did not attend or comply with those directions. The central issues were whether unlawful residence without permission to work proved dependency, and whether dependency was assessed at the application date or at the decision or appeal hearing date.

1. The appeal was dismissed. The First-tier Tribunal had materially erred in law, so its decision was set aside. The Upper Tribunal re-made the decision but found that the appellant had not proved continuing dependency at the relevant hearing date.

2. Dependency under Article 2 of Directive 2004/38/EC and regulation 7(1)(c) of the Immigration (European Economic Area) Regulations 2006 is a factual question. It is not confined to financial calculations or to whether the claimant is wholly or mainly dependent. The inquiry is whether a genuine relationship of dependence exists, assessed holistically by reference to financial, physical and social circumstances and to how essential needs are met.

3. Unlawful residence and absence of permission to work may be relevant to that inquiry, but cannot by themselves prove dependency. A person may have assets, may work unlawfully, or may otherwise meet essential needs without support from the EEA national or spouse.

4. The requirement is one of present dependency. At the administrative stage, it must be established on the evidence before the respondent at the date of decision. Once an appeal is brought, section 85(4) of the Nationality, Immigration and Asylum Act 2002 makes the relevant date the hearing date.

5. The Tribunal accepted, for fairness, that dependency had been established from the daughter’s marriage until the appellant began work in Kent. However, the appellant’s failure to provide the directed evidence or attend the resumed hearing meant that he had not discharged the burden of proving dependency after obtaining that employment. Permission to work pending consideration of the residence-card application was temporary and did not alter that conclusion.

• Upper Tribunal (Immigration and Asylum Chamber): The First-tier Tribunal decision was set aside for material errors of law. The Upper Tribunal re-made the decision and dismissed the appeal: [2013] UKUT 314 (IAC).
• First-tier Tribunal: Dismissed the appeal against refusal of a residence card. Its decision was set aside by the Upper Tribunal.