Latayan v The Secretary of State for the Home Department

Under the Immigration (European Economic Area) Regulations 2006, a direct descendant requires a direct biological or legal parent-child relationship. A de facto stepchild of an unmarried partner is not a direct descendant and has no automatic family-member right on that basis. The distinction between family members and extended family members must remain clear and predictable. Extended-family dependency is a fact-sensitive, holistic question requiring proof of real dependence, including the need for material support to meet essential needs. On appeal, disagreement with a tribunal’s factual assessment is insufficient; an error of law requires an unsupported finding or one that no reasonable tribunal could reach.

Ronnie Latayan, a Philippine national, applied for an EEA residence card as the alleged direct descendant, alternatively the extended family member, of an Irish national who had lived with her mother. The Secretary of State refused the application. The First-tier Tribunal found that she was not a direct descendant and had not proved dependency before entering the United Kingdom. The Upper Tribunal, in a decision dated 22 October 2018, dismissed her appeal.

The appeal concerned whether a de facto stepchild could be a direct descendant under the Regulations and whether the evidence established the required pre-entry dependency under regulation 8(2)(c).

Appeal dismissed. The First-tier Tribunal and Upper Tribunal reached correct conclusions on both issues.

1. Direct descendant. The autonomous EU-law concept of direct descendant requires a direct parent-child relationship. That relationship may be biological or legal, and adoption creates the necessary legal relationship. Legal guardianship, including kafalah, does not. The Court applied SM (Child placed under Algerian Kafala) v Entry Clearance Officer [2019] INLR 507. A de facto stepchild of an EU citizen, where the citizen’s relationship with the child’s parent is neither marriage nor civil partnership, is therefore not a direct descendant under regulation 7. Treating such social relationships as direct descent would blur the deliberate distinction between family members with automatic rights and extended family members whose entry and residence are facilitated under national legislation.
2. Dependency. Regulation 8(2)(c) requires dependency before arrival in the United Kingdom and continuously thereafter. Dependency means real dependence: having regard to financial and social conditions, the person must be unable to support themselves and need material support to meet essential needs. It is a question of fact requiring a holistic assessment. The applicant bears the burden of proof. Documentary evidence will normally be expected, although reliable oral evidence may suffice. The level, duration and impact of support must be assessed. The limited remittance evidence, unexplained shortfall between payments and essential expenses, and concerns about the reliability of the evidence entitled the First-tier Tribunal to find that pre-entry dependency was not proved.
3. Appellate restraint. The conclusion was not irrational or one unavailable on the evidence. As explained in Perry v Raleys Solicitors [2019] UKSC 5, a factual finding gives rise to an error of law only in exceptional circumstances, such as absence of supporting evidence or a conclusion no reasonable judge could reach. Additional factual arguments not pleaded could not fairly be raised during the appeal. The Court nevertheless observed that the same arguments would not have succeeded even if considered.

1. Court of Appeal (Civil Division) — The appeal was dismissed on 20 February 2020: [2020] EWCA Civ 191.
2. Upper Tribunal (Immigration and Asylum Chamber) — UTJ Hanson dismissed the appeal on 22 October 2018, upholding the First-tier Tribunal’s conclusions.
3. First-tier Tribunal — The appeal against refusal of the EEA residence-card application was dismissed on 8 April 2016.