Introduction

The case of Reyes v. Secretary of State for the Home Department ([2013] UKUT 314) is a pivotal decision from the Upper Tribunal (Immigration and Asylum Chamber) that addresses the intricate nuances of dependency determination under the Immigration (European Economic Area) Regulations 2006 (2006 Regulations). The appellant, a Filipino national, sought to obtain a residence card as a dependent direct relative of an EEA national residing in the United Kingdom. This case focuses particularly on two critical issues:

• Whether a person's dependency can be inferred solely based on their unlawful presence in the UK.
• Whether establishing dependency at the date of application suffices if the individual no longer meets dependency criteria at the decision date.

The appellant had remained in the UK unlawfully after his initial visitor visa expired, despite previous refusals of his applications to stay as a dependent relative of his daughter and her EEA national husband. This case delves into the legal interpretations and procedural correctness in evaluating dependency under EEA regulations.

Summary of the Judgment

The Upper Tribunal examined whether the appellant qualified as a dependent under regulation 7(1)(c) of the 2006 Regulations. The core determination hinged on whether dependency should be assessed based on the date of the decision (using evidence presented to the respondent) or the date of the hearing on appeal (using evidence presented to the tribunal).

The First-tier Tribunal had previously dismissed the appellant's appeal, citing insufficient evidence of dependency on his daughter and son-in-law. The Upper Tribunal identified errors in the First-tier Tribunal's approach, particularly in the interpretation and application of dependency criteria. The Upper Tribunal concluded that dependency must be assessed at the date of the hearing based on all relevant evidence, emphasizing a present-focused evaluation rather than a retrospective one.

Ultimately, the Upper Tribunal set aside the First-tier Tribunal's decision, dismissing the appellant's appeal due to the failure to substantiate ongoing dependency at the hearing date, despite initial recognition of past dependency.

Analysis

Precedents Cited

The judgment extensively references key precedents that shape the interpretation of dependency under EEA regulations:

• Moneke (EEA OFMs) Nigeria [2011]: Emphasizes that dependency is a factual determination encompassing financial, physical, and social conditions.
• Lebon C-316/85 [1987]: Establishes that dependency results from material support by a Community national and should not be confined to financial dependence alone.
• Jia v Migrationsverket Case C-1/05 [2007]: Clarifies that dependency must be genuine and not contrived, influenced by the principle of effectiveness.
• SM (India) v Entry Clearance Officer [2009]: Highlights the need for a broad, fact-specific approach in assessing dependency.
• Secretary of State for the Home Department v Islam & Anor [2012]: Further elucidates the Court's approach to dependency, reinforcing its requirement to be genuine and not based solely on legal formalities.

These cases collectively underscore a holistic and present-focused assessment of dependency, moving beyond mere financial reliance to consider the overall circumstances of the individual.

Legal Reasoning

The Upper Tribunal's legal reasoning pivots on several foundational principles:

• Factual Test of Dependency: Dependency is determined by assessing the entirety of the individual's circumstances, including financial, physical, and social factors, rather than a simple financial dependency metric.
• Present Dependency: The relevant assessment of dependency is anchored in the present moment—specifically, the date of the decision or hearing—not the date of the initial application.
• Effectiveness Principle: Interpretations of dependency must ensure the effectiveness of the free movement provisions, ensuring that genuine dependencies are recognized without being unduly restricted by legal technicalities.
• Holistic Examination: Courts must consider the nature of the relationship and the interdependence between family members to determine genuine dependency.

Applying these principles, the Tribunal found that previous dependency, while relevant for context, did not suffice to establish ongoing dependency at the hearing date, especially in light of the appellant's employment and failed evidence submission regarding his self-sufficiency.

Impact

This judgment has significant implications for future cases involving dependency under EEA regulations:

• Temporal Focus: It reinforces that dependency must be present at the time of the decision or hearing, thereby preventing individuals from relying solely on past dependency to secure their status.
• Evidence Standards: The decision elevates the standard of evidence required to demonstrate ongoing dependency, necessitating comprehensive and contemporaneous documentation of support.
• Procedural Clarity: By clarifying that the relevant date for dependency assessment is the hearing date on appeal, it provides clearer guidance for both applicants and adjudicators in preparing and presenting cases.
• Policy Considerations: The case highlights potential issues with administrative practices, such as the issuance of work permissions during application processing, prompting considerations for policy adjustments to prevent abuses.

Overall, the judgment ensures a more rigorous and accurate assessment of dependency, aligning legal interpretations with the substantive rights and realities of EEA family members.

Complex Concepts Simplified

Dependency under EEA Regulations

Dependency refers to the reliance of a family member on another (typically an EEA national) for essential living needs. Under the EEA regulations, categorizing someone as dependent grants them rights to reside and possibly work in the host Member State.

Regulation 7(1)(c) Explained

Regulation 7(1)(c) specifically pertains to dependent direct relatives in the ascending line (such as parents or grandparents) or those of the spouse or civil partner of an EEA national. To qualify, the dependent must genuinely rely on the EEA national for their essential needs.

Present vs. Past Dependency

The crux of the case lies in understanding that dependency must be assessed based on the individual's status at the current moment (date of decision/hearing) rather than their status at the time of application. This ensures that only those who are actively dependent continue to benefit from their dependent status.

Essentials of Dependency Determination

• Financial Support: Material support is a key component but not the sole criterion.
• Holistic Assessment: Courts consider various factors, including social and physical reliance, to determine genuine dependency.
• Burden of Proof: The appellant must provide adequate evidence to demonstrate current dependency.

Conclusion

The Upper Tribunal's decision in Reyes v. Secretary of State underscores the necessity for a present-focused and comprehensive evaluation of dependency under EEA regulations. By clarifying that dependency must be substantiated at the time of the decision or hearing, the judgment ensures that only genuinely dependent individuals retain their rights under these provisions. This aligns legal processes with the objective of maintaining familial unity without compromising the integrity of immigration control. Future cases will likely draw on this precedent to navigate the complexities of dependency determinations, emphasizing the importance of timely and thorough evidence to support claims of reliance.