SM (India) v Entry Clearance Officer (Mumbai)

Factual and Procedural Background

The appellants, three adult Indian citizens residing in India, appealed against decisions of the Asylum and Immigration Tribunal ("AIT") dismissing their appeals against refusals to issue them with EEA family permits under Regulation 12 of the Immigration (European Economic Area) Regulations 2006 ("the Regulations"). Two appellants are sisters, whose father, the sponsor, is a Portuguese national exercising treaty rights in the United Kingdom since December 2006. The third appellant is a first cousin of his sponsor, also a Portuguese national residing and working in the United Kingdom since 2002.

The appellants' applications for entry clearance were refused, their appeals dismissed, and some appeals ordered for reconsideration. On reconsideration, the AIT panel upheld the earlier dismissal for the sisters, concluding no material error of law by the Immigration Judge, who had found no evidence they could not obtain work or had enquired about employment in India. In the cousin's case, the Senior Immigration Judge concluded he was not a "family member" nor dependent on the sponsor, rejecting claims of dependency and entitlement under the Regulations.

Legal Issues Presented

1. Whether the appellants qualify as "family members" under the Directive 2004/38/EC and the Immigration (EEA) Regulations 2006 by virtue of dependency on the Union citizen sponsor.
2. The proper interpretation and application of the concept of "dependency" under EU law, specifically as clarified in Jia v Migrationsverket and related case law.
3. Whether appellants not qualifying as "family members" under Article 2.2 of the Directive may be entitled as "other family members" under Article 3.2.
4. The scope and effect of the Court of Appeal’s decision in Bigia v Entry Clearance Officer and its implications for the appellants' rights under the Regulations.
5. The appropriateness of remitting the appeals to the AIT for reconsideration versus allowing the appeals outright.

Arguments of the Parties

Appellants' Arguments

• The appellants contended that they were dependents of their Union citizen sponsors and thus entitled to EEA family permits under the Directive and Regulations.
• They challenged the AIT’s interpretation of dependency, arguing that the test should not exclude them based on the absence of evidence about their attempts to obtain work in India.
• They relied on the Court of Appeal’s decision in Bigia v Entry Clearance Officer to assert that prior lawful residence requirements in another Member State were incompatible with the Directive.
• They argued for outright allowance of their appeals rather than mere remittal.

Respondent's Arguments

• The Secretary of State accepted that the appeals of the two sisters should be remitted to the AIT for reconsideration but resisted the appeal of the cousin.
• Relied on the established test for dependency under EU law from Jia, emphasizing that dependency must be based on need rather than choice.
• Argued that the appellants’ failure to prove inability to support themselves in their country of origin was determinative.
• Submitted that the "fraud or abuse" exception in Community law could exclude claimants artificially creating dependency for immigration advantage, though this was not fully argued on the facts.
• Maintained that the cousin appellant’s appeal should not be remitted as factual findings indicated no genuine dependency.

Table of Precedents Cited

Court's Reasoning and Analysis

The court carefully analyzed the concept of dependency under EU law, focusing on the interpretation provided by the European Court of Justice in Jia. It emphasized that dependency requires a factual situation of material need in the state of origin, not merely a choice to rely on the sponsor. The court found that the AIT panel had materially erred by applying an incorrect interpretation from its previous decision in FP and AP, which had been superseded by Jia.

The court also considered the Secretary of State’s concession, grounded in the Court of Appeal’s decision in Bigia, that prior lawful residence requirements in the Regulations conflict with the Directive. This concession affected the appellants’ entitlement to have their appeals reconsidered under the correct legal framework.

Regarding the cousin appellant, the court identified errors of law in the AIT’s determination, particularly its reliance on the absence of prior residence in Europe and its misapplication of dependency tests. However, the court found insufficient factual findings to allow outright dismissal or allowance and emphasized that questions of recent dependency and factual assessments must be made by the Tribunal on remittal.

The court declined to fully address the Secretary of State’s arguments about abuse or fraud exceptions to dependency claims, noting that such issues require detailed factual findings and were not previously raised.

Overall, the court concluded that the appeals of the two sisters and the cousin should be remitted to the AIT for reconsideration applying the correct legal principles and making sufficient factual findings concerning dependency and family member status under the Directive and Regulations.

Holding and Implications

DISPOSED OF: Both appeals are allowed and remitted to the Asylum and Immigration Tribunal for reconsideration.

The court’s decision directs that the AIT must apply the correct legal test for dependency as established by the ECJ in Jia, rejecting the Tribunal’s prior incorrect interpretation. The appellants must have their appeals reconsidered with adequate factual findings on their dependency status and family member eligibility under the Directive and the Regulations.

The ruling does not set new precedent but clarifies that prior lawful residence requirements are incompatible with the Directive and that dependency must be assessed based on material need in the state of origin. It underscores the necessity for detailed factual inquiry in such immigration cases and the inappropriateness of dismissing appeals without such findings.