ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(LORD JUSTICE AIKENS)
London, WC2A 2LL
B e f o r e :
LORD JUSTICE McCOMBE
LORD JUSTICE RYDER
|SIEW LIAN LIM||Respondent/Claimant|
|ENTRY CLEARANCE OFFICER MANILA||Appellant/Defendant|
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" ... for the purposes of these Regulations the following persons shall be treated as the family members of another person ...
(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner."
This essentially reflects the language in Article 2.2(d) of the Citizens Directive.
"... does the status 'dependent member of a worker's family' result from a factual situation in each case, to be assessed in specific or from objective circumstances independent of the will of the person concerned which make it necessary for him to have recourse to the support of the worker?".
The court pointed out that the fact that the claimant was claiming social benefits did not defeat her claim to be a dependent family member if she had originally had that status; the status had not been lost because of such a claim.
"In my opinion the only answer which can be given to the third question is that dependency ... is not purely a matter of actual payments to meet a substantial part of daily needs; it is more important to consider whether, because of need, such necessity exists and cannot be met by taking suitable employment in spite of serious efforts to find it."
"22. Article 10(1) and (2) of Regulation 1612/68 must be interpreted as meaning that the status of dependent member of a worker's family is the result of a factual situation. The person having that status is a member of the family who is supported by the worker and there is no need to determine the reasons for recourse to the worker's support or to raise the question whether the person concerned is able to support himself by taking up paid employment.
23. That interpretation is dictated by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly ...
24. The answer to the third question must therefore be that the status of dependent member of a worker's family, to which Article 10(1) and (2) of Regulation 1612/68 refers, is the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker's support."
"(2)(a) Is Article 1(1)(d) of Directive 73/148/EEC to be interpreted as meaning that 'dependence' means that a relative of a citizen of the Union is economically dependent on the citizen of the Union to attain the lowest acceptable standard of living in his country of origin or country where he is normally resident?
(b) Is Article 6(b) of Directive 73/148 to be interpreted as meaning that the member states may require a relative of a citizen of the Union who claims to be dependent on the citizen of the Union or his/her spouse to produce documents, in addition to the undertaking given by the citizen of the Union, which prove that there is a factual situation of dependence?"
"... the concept of 'dependence' refers to the situation in which a relative of a citizen of the Union is economically dependent on that citizen of the union to attain the minimum level of subsistence in the country where he is normally resident, not being the member state where he is seeking to reside, and that that situation is structural in character."
"35. According to the case law of the Court of Justice, the status of 'dependent' family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national who has exercised his right of free movement or by his spouse: see, in relation to article 10 of Regulation No 1612/68 and article 1 of Council Directive 90/364/EEC of 28 June 1990 on the right of residence, Centre public d'aide sociale de Courcelles v Lebon (Case 316/85)  ECR 2811, para 22, and Chen v Secretary of State for the Home Department (Case C-200/02)  QB 325, para 43, respectively).
36. The court has also held that the status of dependent family member does not presuppose the existence of a right to maintenance, otherwise that status would depend on national legislation, which varies from one state to another: Lebon's case, para 21). According to the court, there is no need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated in particular by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly: Lebon's case, paras 22 and 23.
37. In order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host member state must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the state of origin of those relatives or the state whence they came at the time when they apply to join the Community national."
"43. In those circumstances, the answer to question 2(a) and (b) must be that article 1(1)(d) of Directive 73/148 is to be interpreted to the effect that 'dependent on them' means that members of the family of a Community national established in another member state within the meaning of article 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the state of origin of those family members or the state from which they have come at the time when they apply to join the Community national. Article 6(b) of that Directive must be interpreted as meaning that proof of the need for material support may be adduced by any appropriate means, while a mere undertaking from the Community national or his or her spouse to support the family members concerned need not be regarded as establishing the existence of the family members' situation of real dependence."
"26. For the sake of completeness, I should mention the fact that, although Mr Palmer invited the court to apply the test for dependency that is set out in Jia, he made it clear in the respondent's skeleton argument that, in the Secretary of State's submission the question whether the applicants' essential needs are met because of the material support of the Union citizen (or his or her spouse or civil partner) needs to be approached with care and is in any event subject to the qualification that Community law cannot be relied upon for abusive or fraudulent ends, Thus a person who is in a position to support himself because, for example, he has adequate savings or a sufficient income but who nevertheless chooses to live off a Union citizen's contributions because he prefers to keep his savings intact or to invest his income, would not, in the Secretary of State's submission, be someone who was in need of material support. A person who artificially placed himself in a position of dependency on a Union citizen for the sole purpose of obtaining an immigration advantage, although he might then be in need of support, would be excluded from relying on the Directive by the application of the general principle in Community law that its provisions cannot be relied on for abusive or fraudulent ends. The example was given in this context of an applicant who had deliberately given up employment or some other source of income or who had divested himself of assets which would have made recourse to support from the Union citizen unnecessary.
27. Since those issues have not previously been raised in the present proceedings, I would prefer to express no view as to whether these two further submissions of the Secretary of State are well-founded. The 'fraud or abuse' exception is well-established in principle in community law, but its application to dependency cases should be considered in the light of specific and sufficiently detailed findings of fact by the AIT. Considering the matter in the abstract, it is possible to see a distinction between a person who, for example, has sufficient savings or income but prefers to rely on support from a Union citizen and a person who could work and earn an income but who prefers not to do so and to rely on support from a Union citizen. In the former case the Secretary of State would contend that there was simply no need for material support to meet essential needs, whereas in the latter case there is a need as a matter of fact and it is unnecessary to explore the reasons for the applicant's recourse to support."
"On a proper construction of Article 2(2(c) of Directive 2004/38/EC of [the Citizens Directive] ... any member of the family of a Union citizen who, for whatever reason, proves unable to support himself in his country of origin and in fact finds himself in such a situation of dependence that the material support provided by the Union citizen is necessary for his subsistence, is to be considered to be a 'dependant'. As regards members of the nuclear family deemed to be dependants, such a situation must really exist and may be proved by any means."
So the reason why the party cannot support himself or herself is irrelevant; the fact that he or she cannot do so is critical. This is inconsistent with the notion that dependency is established merely from the fact that material support is provided. The court essentially adopted the same approach, it said this:
"20. In that regard, it must be noted that, in order for a direct descendant, who is 21 years old or older, of a Union citizen to be regarded as being a 'dependant' of that citizen within the meaning of Article 2(2)(c) of Directive 2004/38, the existence of a situation of real dependence must be established (see, to that effect, Jia, paragraph 42).
21. That dependent status is the result of a factual situation characterised by the fact that material support for that family member is provided by the Union citizen who has exercised his right of free movement or by his spouse (see, to that effect, Jia, paragraph 35).
22. In order to determine the existence of such dependence, the host Member State must assess whether, having regard to his financial and social conditions, the direct descendant who is 21 years old or older, of a Union citizen, is not in a position to support himself. The need for material support must exist in the State of origin of that descendant or the State whence he came at the time when he applies to join that citizen (see, to that effect, Jia paragraph 37).
23. However, there is no need to determine the reasons for that dependence or therefore for the recourse to that support. That interpretation is dictated in particular by the principle according to which the provisions, such as Directive 2004/38, establishing the free movement of Union citizens, which constitute one of the foundations of the European Union, must be construed broadly (see, to that effect, Jia, paragraph 36 and the case-law cited).
24. The fact that, in circumstances such as those in question in the main proceedings, a Union citizen regularly, for a significant period, pays sum of money to that descendant, necessary in order for him to support himself in the State of origin, is such as to show that the descendant is in a real situation of dependence vis-à-vis that citizen.
25. In those circumstances, that descendant cannot be required, in addition, to establish that he has tried without success to find work or obtain subsistence support from the authorities of his country of origin and/or otherwise tried to support himself.
26. The requirement for such additional evidence, which is not easy to provide in practice, as the Advocate General noted in point 60 of his Opinion, is likely to make it excessively difficult for that descendant to obtain the right of residence in the host Member State, while the facts described in paragraph 24 of this judgment already show that a real dependence exists. Accordingly, that requirement is likely to deprive Articles 2(2)(c) and 7 of Directive 2004/38 of their proper effect.
27. Furthermore, it is not excluded that that requirement obliges that descendant to take more complicated steps, such as trying to obtain various certificates stating that he has not found any work or obtained any social allowance, than that of obtaining a document of the competent authority of the State of origin or the State from which the applicant came attesting to the existence of a situation of dependence. The Court has already held that such a document cannot constitute a condition for the issue of a residence permit (Jia paragraph 42)."
"The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national."
Upper Tribunal Judge Storey
"As Lebon made clear, whether someone has the status of a dependant family member is a question of fact. Such a status is characterised by the material support for that family member provided by the Union national who has exercised his free right of movement. Why the family member is dependent does not matter."
"Whilst the jurisprudence has not to date dealt with dependency of choice in the form of choosing not to live off savings, it has expressly approved dependency of choice in the form of choosing not to take up employment: see Lebon. I readily acknowledge that in SM (India) Sullivan LJ saw it as possible that there was a distinction relating to the situation of a claimant who preferred living off savings and a claimant who preferred not to work, (see above ...). But it is very difficult to discern any principled basis for differentiating between the two different forms of dependency of choice when the test is simply a question of fact and the reasons why there is dependency are irrelevant. Indeed, if anything, one might have thought that expecting a retired person to utilise existing financial resources after a lifetime of work is more problematic than expecting a young able bodied person to earn a wage."