Shawinder Singh v The Secretary of State for the Home Department

Dependency for an extended family member requires material support needed to meet essential needs. Financial assistance to someone able to support themselves, or accommodation in a family home alone, is insufficient. Education can be an essential need in principle, but its essential character and the claimed dependency must be established on the evidence. The inquiry is case-specific and must take account of relevant personal circumstances. It should not be recast as separate global and singular tests. An appellate tribunal should not interfere where the fact-finder identified the law, applied the burden and standard of proof, assessed the evidence, and reached a rational conclusion open on the material.

The respondent refused the appellant’s fifth application for an EEA Residence Card, finding inadequate evidence that he had been dependent on his uncle before entering the UK. The First-tier Tribunal dismissed the appeal, finding no meaningful dependency for food or accommodation and no membership of the sponsor’s household in India, although the sponsor had supported the appellant’s education. Upper Tribunal Judge Hanson dismissed a further appeal, finding no material error of law. The Court of Appeal granted permission on whether education could be an essential need and whether dependency required a global or singular assessment. It dismissed the appeal.

Decision

The Court of Appeal dismissed the appeal unanimously. Birss LJ gave the judgment, with Males and Singh LJJ agreeing.

1. Legal framework. Article 3(2)(a) of Directive 2004/38/EC and Regulation 8 of the Immigration (European Economic Area) Regulations 2016 governed the application. Dependency required material support needed to meet essential needs. The situation of dependence had to exist in the country from which the family member came, at least when applying to join the Union citizen. The authorities also established that financial support to a person able to support themselves, or financial provision and accommodation in the family home alone, did not establish dependency. The assessment required an examination of the applicant’s personal circumstances and relevant factors on a case-by-case basis.
2. Education. The court accepted that education was capable in principle of being an essential need, but it was not necessarily so in every case. The issue was not properly before the First-tier Tribunal as a general question. The appellant’s case there had focused on dependency for food and accommodation. In that context, the reference to educational support as an additional benefit was rational and did not show that the tribunal had misunderstood the law. The tribunal had correctly identified the applicable law, burden and standard of proof, assessed the evidence, made rational findings on the primary facts, and reached conclusions open on the material.
3. Global and singular assessment. This issue did not arise on the facts and had not arisen before the Upper Tribunal. Its discussion at paragraphs 23 and 24 was not a helpful way to analyse dependency and should not be followed in future. If consistent with the governing principles, the distinction added nothing; if inconsistent, it was wrong. The proper approach remained the case-specific assessment described in Rahman and SM (India) v ECO (Mumbai).
4. Disposition. There was no material error of law in the First-tier Tribunal’s decision. The appeal was dismissed.

• Court of Appeal (Civil Division): On 26 July 2022, in [2022] EWCA Civ 1054, dismissed the appeal. Permission had been granted on education as an essential need and on the proposed global or singular assessment of dependency.
• Upper Tribunal (Immigration and Asylum Chamber): On 18 March 2021, Upper Tribunal Judge Hanson dismissed the appeal from the First-tier Tribunal, finding no material error of law. Permission to appeal was refused.
• First-tier Tribunal: On 12 October 2020, dismissed the appeal against refusal of the EEA Residence Card, finding insufficient evidence of dependency for essential needs or household membership in India.
• Respondent: On 15 November 2019, refused the appellant’s fifth application because adequate evidence of dependency before entry to the UK had not been provided.