AT v London Borough of Hillingdon & Anor

A retained right of residence under article 13(2) of Directive 2004/38 is not limited to the third-country national who was party to the dissolved marriage. It may protect other family members of the Union citizen where the statutory conditions are satisfied. The conditions before acquisition of permanent residence may be met through any of the gateways identified in article 13(2), including dependency or sufficient resources. However, an appellate tribunal cannot determine an issue raised for the first time without an evidential foundation. Findings of fact by the First-tier Tribunal will not amount to an error of law merely because another view of the evidence is possible. An undisclosed investigation will be material only if it affected the decision.

AT, a Pakistani national, appealed against the dismissal of her housing benefit appeal. The local authority had decided that she lacked a qualifying right to reside in the United Kingdom. The First-tier Tribunal dismissed her appeal on the basis that she could not retain residence rights under regulation 10(5) of the Immigration (European Economic Area) Regulations 2016/1052, and that she was not dependent on her son, Mr M.

The appeal raised whether article 13(2) of Directive 2004/38 conferred a wider retained right than the domestic regulations, and whether the First-tier Tribunal had erred in its factual assessment, treatment of a residence card, or use of information concerning Mr M’s company.

1. The appeal was dismissed. The First-tier Tribunal had failed to apply EU law correctly, but its error was immaterial. On the findings made, which were unassailable in an error-of-law jurisdiction, the same result necessarily followed.
2. Regulation 10(5) of the Immigration (European Economic Area) Regulations 2016/1052 concerned the person whose own marriage or civil partnership had been terminated. Article 13(2) of Directive 2004/38 was wider. It protected family members of the Union citizen who were third-country nationals, and was not confined to a party to the dissolved marriage. The pre-permanent-residence condition in article 13(2) contained alternative gateways, including dependency and sufficient resources.
3. The alternative self-sufficiency case could not assist AT. There had been no submission or evidential foundation before the First-tier Tribunal capable of establishing sufficient resources under article 7(1)(b). It was too late to raise that route on the appeal.
4. The EU-law concept of dependency required material support to meet essential needs, as explained in Jia v Migrationsverket C-1/05. The First-tier Tribunal was entitled to reject dependency on the evidence. Its findings concerning practical care, support and financial dependency were consistent with that test.
5. A residence card was declaratory rather than constitutive. The First-tier Tribunal had correctly treated the card as conditional on continuing dependency. Its factual conclusions could not be reopened merely because the appellant disagreed with them. The high threshold identified in E and R v SSHD [2004] EWCA Civ 49 for material mistake of fact was not met.
6. The First-tier Tribunal’s apparent research into Companies House records had not materially affected its reasoning. The relevant matters were either stated by Mr M himself or matters of general experience. The alleged subsequent issue of a permanent residence card could not be considered because it was not evidence before the First-tier Tribunal.

• First-tier Tribunal (Social Entitlement Chamber): On 4 March 2020, under reference SC304/18/02850, dismissed AT’s appeal against the local authority’s housing benefit decision.
• Upper Tribunal (Administrative Appeals Chamber): Dismissed the appeal. The First-tier Tribunal had erred in applying EU law, but the error was immaterial because its findings led to the same outcome.