This case dealt with issues surrounding the dependency test (set out in Lim [2015] EWCA Civ 1383) for extended family members of a qualified person, and concerned a Pakistani national who applied for entry clearance to the UK with his brother, a Portuguese national, as his sponsor.
The relevant legal provision in this case was regulation 7(1)(c) of the Immigration (European and Economic Area) Regulations 2006 as it gave effect to the definition of “family member” found in Article 2.2(d) of Directive 2004/38/EC (Citizens Directive). The importance of this provision is that a family member who satisfies the definition (whether an EU citizen or not) is entitled to join an EU citizen who has moved to another EU country using their free movement rights. Regulation 7(1)(c) says that a person is a family member of another person if they are a dependent direct relative in ascending line of that other person of their spouse or civil partner.
As a result, the appellant was attempting to demonstrate that he was dependent on his brother to the extent that he would satisfy Regulation 7(1)(c) and thus be able to join him in the UK. However, the appellant’s appeal to the First-tier tribunal (FTT) was dismissed as the judge did not find that dependency existed. This was then appealed to the Upper Tribunal (UT).
In the UT, the FTT’s decision was set aside as Judge Lane found that the FTT’s reasoning was confused and irrational. The FTT found that the sponsor sent money to the appellant and correctly noted that there is no minimum income requirement for the UK sponsor to have. However, the FTT then said that, because the UK sponsor claimed to sometimes send his brother amounts of money which would put his own family below income support levels from time to time, they would consider this as a negative factor. Effectively, the FTT attached negative weight to evidence which they also found to be plausible and possibly truthful, for no apparent reason.
Notwithstanding this, Judge Lane in the UT pointed out that, while the FTT considered the source of the income that was supporting the appellant’s mother, this was not an issue directly raised in the FTT proceedings. The FTT though, had considered this point nonetheless and found that, if the sponsor was also supporting his mother, then he must have even less money to send to his brother. Judge Lane dismissed this outright by questioning why it was brought up before the UT as this point had not been put to the appellant in the FTT.
On top of this, the FTT made a further decision that other members of the appellant’s family could support him based on the fact that the appellant’s sister had enough money to come to the UK. The reasoning was that, because she could afford to come to the UK, she could then afford to support the appellant. Judge Lane also dismissed this reasoning as equally flawed.
As a result, the decision of the FTT was set aside and the appeal was returned to the FTT to be redecided. Whilst not ground-breaking, this case does help illustrate further guidelines on how to consider dependency in similar contexts. Judge Lane also reinforces that appeals should not be decided on grounds and issues not put forth during the appeal, or on issues not put to the parties themselves during the proceedings.
By: Cameron Dyer