England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
(LORD JUSTICE AIKENS)

		Royal Courts of Justice Strand London, WC2A 2LL
		28th July 2015

1. LORD JUSTICE ELIAS: This appeal raises the question whether the respondent, who has sufficient savings to meet her own needs but chooses instead to rely on financial support from a related EU citizen so that she will be able to pass on her assets to her children, can be regarded as a direct dependent relative in the ascending line within the meaning of regulation 7(1)(c) of the Immigration (European and Economic Area) Regulations 2006. The issue is one of EU law because regulation 7(1)(c) in turn gives effect to that part of the definition of "family member" found in Article 2.2(d) of the Directive 2004/38/EC, commonly known as the Citizens Directive. The significance of being a family member is that such a person, whether or not he or she is an EU citizen, is entitled to join EU citizens who have moved to another EU state in the exercise of their free movement rights: see Article 5.1 of the Directive, reflected in Article 12 of the EEA Regulations.
2. The respondent sought to exercise that right. The Upper Tribunal concluded, as had the First Tier Tribunal, that she was a dependent relative and was entitled to entry as a family member. The Secretary of State now appeals against that decision.
3. The respondent has not taken part in the appeal. It appears that she is no longer interested in exercising her right to join the family, if indeed she has such a right; nor did she wish to participate in the appeal. But the parties have been unable to reach an agreement as to how they should dispose of this appeal. Accordingly, the Secretary of State has pursued the appeal and the court has only had the advantage of hearing from one party. But Mr Facenna, counsel for the Secretary of State, has put all the relevant authorities before us and we have had the advantage of the typically careful reasoning of Upper Tribunal Judge Storey, who accepted the respondent's submissions when they were advanced below.

The facts

4. The material facts can be briefly summarised. The respondent is a Malaysian citizen aged 60. She is divorced and has two adult daughters, both of whom live in the UK, one being married to a Norwegian national and the other to a Finnish national. In July 2012 she sought entry clearance as a family member of an EU national, namely her Finnish son-in-law.
5. The respondent has her own home in Malaysia, valued at some £80,000, which she owns in her sole name free of any mortgage. She lives with her mother and ten-year-old grandchild, for whom she is the guardian. She formerly worked as a laboratory analyst and has money in an Employee's Provident Fund, a compulsory savings and retirement plan for private sector workers in Malaysia. In February 2012 this was worth in excess of £55,000. She can withdraw this sum in full at any time. She also has a small amount of savings of approximately £1,650 in a bank account.
6. Following her retirement, the respondent relied on her savings to cover her living expenses, which were around £150 to £200 per month. However, since early 2012 the daughter married to the Finnish son-in-law has sent her remittances of some £450 per quarter. She uses this to meet her expenses and has not had to draw on her capital. She could, however, meet her essential needs by drawing down on her retirement savings for at least ten, possibly 20, years, but she does not wish to draw upon that fund because she wants to pass it on as an inheritance to her children and grandchildren.
7. It is not, however, suggested by the Secretary of State that either she or her daughter has artificially attempted to create a situation of dependency so as to establish an entitlement to enter the UK, so there is no question of abuse of rights in this case.

The law

8. The relevant regulation in issue is Regulation 7(1)(c). It provides that:

" ... 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.

9. The test for dependency has been considered on a number of occasions by the Court of Justice of the European Union. There are three relevant judgments. The first is Centre Public d'Aide Sociale (Public Social Welfare Centre) Courcelles v Marie-Christine Lebon (C/316/85) [1987] ECR 2811 ("Lebon"), which concerned a referral from a court in Belgium. The claimant and her father were French nationals living in Belgium. The father had worked in Belgium but had retired. The claimant had always lived in Belgium, originally with her parents, save for a short period working in France. She claimed a social security benefit from the Belgian authorities. Her entitlement to it depended upon whether she was a "dependent family member". The case did not directly concern the Citizens Directive, which was not in existence at that time. It concerned a different European provision, namely Article 7(2) of Regulation 1612/68. However, Regulation 10 was drafted in similar terms to Article 2(2) of the Citizens Directive and gave a right of entry to dependent ascendants of a migration worker.
10. A number of issues were raised in that reference. Question 3 posed the following question:

"... 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.

11. The debate before the court was whether it was enough that material support was in fact provided by a relative or whether it was necessary to consider, objectively, whether the putative dependent was in a position to support himself, such as by gaining employment. The Advocate General considered that the latter was the correct approach. She said this:

"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."

12. The court disagreed with this analysis. They considered that the question was whether as a matter of fact resources were provided to meet the needs of the putative defendant and gave their reasons as follows:

"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."

13. The context of the Lebon decision was that the descendant did need the support of her father to meet her needs. However, it is right to say that, read in isolation, paragraph 24 suggests that such dependency is not necessary and that the only question is whether in fact the EU worker provides financial support.
14. The issue was considered again in the second material case, Jia v Migrationsverket (KC/1/05), [2007] QB 545. This was a case heard by the Grand Chamber. A Chinese couple wished to enter Sweden to join their son, who was married to a German woman working in Sweden. One of the issues in the case was what it means to say that someone is dependent on his or her relatives. This again was not concerned directly with the Citizens Directive, but rather Council Directive 73/148/EEC, which was concerned with the abolition of restrictions on free movement. However, this also used the concept of dependency. Article 1(d) provided that a state should abolish restrictions on "the relatives in ascending and descending lines of such nationals and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality". The relevant questions posed in that case were as follows:

"(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?"

15. The Advocate General concluded that:

"... 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."

16. The court reached a similar conclusion. It referred to Lebon and then summarised the relevant principles as follows:

"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) [1987] ECR 2811, para 22, and Chen v Secretary of State for the Home Department (Case C-200/02) [2005] 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."

17. The court then answered the two further questions in the following way:

"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."

18. There is arguably some conflict between what is said at paragraphs 35 to 36 on the one hand, and in paragraph 37 on the other. The earlier paragraphs, consistently with the literal meaning of paragraph 24 in Lebon, suggest that the only question is whether material support is in fact being provided for the family member. That might suggest that if it is provided, that person is a dependant irrespective of his or her own financial situation. Whatever independent resources he or she has, they are irrelevant. However, paragraph 37 presupposes that in order to establish dependency it is necessary first to conclude that having regard to their financial and social conditions, the family member or members concerned are not in a position to support themselves. That is also supported by the answers given in paragraph 43, where the court says that the claimant must need the material support and there would need to be proof of this. As I have said, that analysis is in line with the approach of the Advocate General, albeit that the court does not use the language of economic independence.
19. Indeed, on one view of paragraph 37, by referring to the need to have regard to "the financial and social conditions", the court might have been taken as suggesting that there is no dependency if, as a matter of fact, the putative dependent relative was in a position to obtain employment in the place of origin. That would of course be to roll back on the analysis in Lebon. That is how the Asylum and Immigration Tribunal interpreted Jia in the case of SM (India) [2009] EWCA Civ 1426.
20. In SM there was no evidence in that case that the claimant could not obtain work in the country of origin and the AIT considered that the proper reading of paragraph 36 of Jia meant that as a consequence he could not establish the requisite dependency. The Court of Appeal held that this was a misreading of the paragraph and that Jia was not intending to depart from Lebon. Sullivan LJ made this clear in paragraphs 20 to 21. These observations confirmed that it is not necessary for a person to show that he cannot work before claiming dependency. They do not, however, specifically address the issue arising here, namely whether a situation of dependency requires not merely the fact of support, but also the need for the supported party to show that he or she would not have sufficient resources to meet his or her own needs. Indeed, later in his judgment Sullivan LJ made certain observations which show that he felt that this was still very much an open question:

"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."

21. The last sentence of paragraph 27 precisely reflects the argument now being advanced by the Secretary of State. She submits that the respondent has no need to rely on the resources of her daughter as a matter of fact; she is financially independent.
22. In a judgment handed down three weeks after SM, namely Pedro v Secretary of State for Work and Pensions [2009] EWCA Civ 1358, [2010] 2 CMLR 20, Goldring LJ (with whom Mummery and Sullivan LJJ agreed) again considered the question of dependency and the true ratio of Jia. This was a case on the Citizens Directive. A 62-year-old Portuguese national had come to the UK in 2004 to join her son. At that point she was able to support herself in Portugal. Subsequently she relied upon her son for support. She claimed state pension credit. This depended upon whether she was a dependent family member within the meaning of the Citizens Directive. The Secretary of State said that, in accordance with Jia, she was not since she could support herself in her country of origin at the time when she applied to come to the UK. She contended that she had become dependent on her son since leaving Portugal and that this was enough to make her a dependent family member within the meaning of the Citizens Directive. The Court of Appeal agreed. Goldring LJ distinguished Jia on the grounds that it was concerned with a different directive. He held that the Citizens Directive went further than earlier Directives on freedom of movement and did not require in all cases that the question of dependency should be assessed by reference to the circumstances in the state of origin. However, Goldring LJ accepted (paragraph 61) that where the only basis of an alleged dependency was support in the state of origin, it would be appropriate to apply Jia, citing the decision of the Court of Appeal in Bigia v Entry Clearance Officer [2009] EWCA Civ 79, [2009] 2 CMLR 42.
23. I do not, therefore, read Pedro as affecting the appropriate principles to apply in a case of this nature; it does not address the specific question that we have to resolve. In any event, I very much doubt whether it can now stand in light of the third and most recent decision of the CJEU, namely Reyes v Migrationsverket 2014/C-423/12, [2014] QB 1140. Reyes was concerned with the question whether an EU direct descendant aged 21 or older could be treated as a dependant within the meaning of Article 2.2(c) of the Citizens Directive. The same principles would apply equally to ascendants under paragraph (d).
24. The case concerned a 25-year-old Philippine national who said that she had been unable to find work in the Philippines. She was financially supported by her mother, who had become a German citizen, and her mother's cohabiting partner, a Norwegian citizen, who both resided in Sweden. The first question in the reference by the Swedish court was, in essence, whether, in order to be regarded as dependent and so fall within the concept of family member, a direct descendant had to show that he had tried without success to find employment in his country of origin or to obtain a subsistence allowance or some other means of supporting himself. Both the Advocate General and the Court held that this was not necessary, which was of course entirely in accordance with the earlier authorities. The Advocate General summarised his conclusions as follows (paragraph 69):

"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)."

25. In my judgment, this makes it unambiguously clear that it is not enough simply to show that financial support is in fact provided by the EU citizen to the family member. There are numerous references in these paragraphs which are only consistent with a notion that the family member must need this support from his or her relatives in order to meet his or her basic needs. For example, paragraph 20 refers to the existence of "a situation of real dependence" which must be established; paragraph 22 is even more striking and refers to the need for material support in the state of origin of the descendant "who is not in a position to support himself"; and paragraph 24 requires that financial support must be "necessary" for the putative dependant to support himself in the state of origin. It is also pertinent to note that in paragraph 22, in the context of considering the Citizens Directive, the court specifically approved the test adopted in Jia at paragraph 37, namely that:

"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."

26. This, as I say, makes the analysis in Pedro highly problematic. I doubt whether it is compatible with Reyes.

Upper Tribunal Judge Storey

27. Judge Storey, in his judgment, carefully analysed the arguments in favour of the position that the mere fact of support was not enough, and he concluded that the state of EU law compelled that conclusion. He did not, however, have the benefit of the Reyes decision.
28. In support of his conclusion, he referred to the following observation of Goldring LJ in the case of Pedro at paragraph 62:

"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."

29. I respectfully do not accept that these observations of Goldring LJ made good Upper Tribunal Judge Storey's conclusion. Receipt of support is a necessary but not sufficient condition. It is still necessary to determine that a family member is dependent in the sense of being in need of the assistance. I accept that the authorities clearly establish that it is irrelevant why he or she is dependent, whether because he has given his money away or because he is unwilling to work (save possibly where an abuse of rights can be established), but paragraph 62 in Pedro does not establish that dependency is determined by the mere fact that the EU national makes resources available to the dependent relative.
30. I confess that even without the assistance of the judgment in Reyes, I would have thought that the concept of dependency must mean that the claimant is not financially independent and therefore requires support. Upper Tribunal Judge Storey rejected the analysis in part because he did not consider that there was a principled basis for concluding that such a person was not a dependant whilst someone who refused to get a job could be a dependant. Sullivan LJ in SM (India) at paragraph 27 (produced above) had suggested that these situations might be distinguished, but the judge was not persuaded that they should be. He said this:

"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."

31. I see some force in the observation that there is no moral or policy justification for distinguishing between these two situations, but it seems to me that the distinction is now very firmly established in the authorities.
32. In my judgment, the critical question is whether the claimant is in fact in a position to support himself or not, and Reyes now makes that clear beyond doubt, in my view. That is a simple matter of fact. If he can support himself, there is no dependency, even if he is given financial material support by the EU citizen. Those additional resources are not necessary to enable him to meet his basic needs. If, on the other hand, he cannot support himself from his own resources, the court will not ask why that is the case, save perhaps where there is an abuse of rights. The fact that he chooses not to get a job and become self-supporting is irrelevant. It follows that on the facts of this case, there was no dependency. The appellant had the funds to support herself. She was financially independent and did not need the additional resources for the purpose of meeting her basic needs.
33. I do not consider that this is a case where it would be appropriate to remit the matter to the Upper Tribunal because, in my view, on the facts there can only be one answer to the issue which we have to consider. Accordingly, I would uphold the appeal. I would conclude that she was not dependent on her relatives and was not therefore a family member within the meaning of Article 2.2 of the Citizens Directive.
34. LORD JUSTICE McCOMBE: I agree.
35. LORD JUSTICE RYDER: I also agree.