Entry Clearance Officer, Manila v Siew Lian Lim

For an ascending relative of an EEA national, dependency is a factual condition. It is established where the relative receives material support for essential needs. The reasons for recourse to that support are irrelevant, provided there is no abuse of rights.

Accordingly, a retired relative may be dependent even though she chooses to preserve savings and a home for legitimate family reasons rather than use them for living expenses. Dependency need not be total or the relative’s main source of support. There is no principled distinction between choosing not to work and choosing not to spend savings when assessing factual dependency.

The claimant, a retired Malaysian national, applied for an EEA family permit as the dependent mother-in-law of a Finnish national living in the United Kingdom. Her daughter and son-in-law had sent remittances since early 2012. Although the claimant owned a mortgage-free home and had substantial retirement savings which she could withdraw, she chose to preserve those assets for her descendants.

The Entry Clearance Officer refused the application, contending that she could meet her own essential needs. The First-tier Tribunal allowed the appeal. The Entry Clearance Officer appealed on the question whether a person with accessible capital could nevertheless be a dependent family member.

1. The appeal was dismissed. The First-tier Tribunal had made no error of law in finding that the claimant was financially dependent on her daughter and son-in-law, and its decision allowing the appeal stood.

2. EU jurisprudence establishes that dependent-family-member status is a factual situation. It is characterised by material support from the Union citizen or spouse. The reasons why the family member has recourse to that support, including whether she could support herself by paid work, are irrelevant: Centre Publique d’Aide Social de Courcelles v Lebon [1987] ECR 2811 and Jia v Migrationsverket C-1/05.

3. The sole qualification is abuse of rights. On the accepted facts there was none. The remittances were real and continuing, were not arranged solely to obtain an immigration advantage, and met essential needs. Dependency need not be complete or predominant; material support for essential needs in part suffices.

4. The claimant’s choice not to draw down retirement savings or sell her home did not negate dependency. Lebon expressly accepted dependency where a person chooses not to take employment. Since the test is factual and the reasons for dependency are irrelevant, no principled distinction could be drawn between that choice and preserving savings. Her wish to retain assets as a legitimate inter-generational family provision reinforced that conclusion.

5. The Tribunal rejected reliance on an Advocate General’s proposed minimum-subsistence benchmark in Jia. The Court of Justice had not adopted it. It was unnecessary to refer the EU-law question under Article 267 TFEU because the Tribunal could resolve it and considered the contrary interpretation to admit of no reasonable doubt.

• Upper Tribunal (Immigration and Asylum Chamber): The Entry Clearance Officer’s appeal was dismissed. The First-tier Tribunal’s decision allowing the claimant’s appeal under the Immigration (European Economic Area) Regulations 2006 was upheld.
• First-tier Tribunal: Judge Thew allowed the claimant’s appeal after finding that she needed the sponsors’ material support to meet her essential needs.