Lim v Entry Clearance Officer Manila

A relative in the ascending line is a dependent family member only where there is a real need for material support to meet essential needs. Actual financial support from the EU citizen is necessary but is not sufficient by itself. The decision-maker must assess whether, having regard to the relative’s financial and social circumstances in the state of origin, the relative can support themselves from their own resources.

The reason for genuine dependence is ordinarily irrelevant. A person need not show that they unsuccessfully sought employment. However, a person with sufficient available assets who chooses to preserve them for inheritance is financially independent and is not a dependant.

The respondent, a Malaysian national, applied for entry clearance to join her Finnish son-in-law as his dependent direct relative in the ascending line. She received remittances from her daughter, but owned a mortgage-free home and held accessible retirement savings sufficient to meet her modest living costs for many years. She chose not to draw on those assets because she wished to leave them to her children and grandchildren.

The First-tier Tribunal and the Upper Tribunal found that she was dependent. The Entry Clearance Officer appealed. The central issue was whether actual financial support establishes dependency where the applicant can meet her own essential needs from her available capital.

1. The appeal was allowed. Elias LJ, with whom McCombe and Ryder LJJ agreed, held that the respondent was not a dependent family member under regulation 7(1)(c) of the Immigration (European and Economic Area) Regulations 2006 or article 2.2(d) of Directive 2004/38/EC.

2. The Court held that dependency requires a situation of real dependence. The provision of material support is a necessary feature, but it does not itself establish the status. The relative must need that support to meet essential needs because, assessed in the light of their financial and social circumstances in the state of origin, they cannot support themselves.

3. This followed the analysis in Reyes v Migrationsverket, [2014] QB 1140, which confirmed the test stated in Jia v Migrationsverket, [2007] QB 545. Lebon, [1987] ECR 2811, did not require an inquiry into why a person was genuinely unable to support themselves. Thus, an applicant need not prove unsuccessful attempts to find work. The Court left open the possible relevance of abuse of rights, which was not alleged.

4. The Court did not accept that the observations in Pedro v Secretary of State for Work and Pensions, [2009] EWCA Civ 1358, made dependency turn on the mere fact that an EU citizen made resources available. It also doubted whether aspects of Pedro remained compatible with Reyes.

5. The respondent could meet her essential needs from her accessible savings. The additional remittances were therefore unnecessary for that purpose. Her wish to retain capital as an inheritance did not create dependency. There was only one possible conclusion on the facts, so the matter was not remitted to the Upper Tribunal.

• Court of Appeal (Civil Division) — allowed the Entry Clearance Officer’s appeal and held that the respondent was not a dependent family member: [2015] EWCA Civ 1383.

• Upper Tribunal (Immigration and Asylum Chamber) — upheld the conclusion that the respondent was dependent and entitled to entry as a family member.

• First-tier Tribunal — concluded that the respondent was a dependent relative.