Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: EA/00103/2015

THE IMMIGRATION ACTS

Heard at Field House
Decision & Reasons Promulgated
On 20 January 2017
On 25 January 2017

Before

DEPUTY UPPER TRIBUNAL JUDGE SHERIDAN

Between

MOHAMMAD TAGHI JAHANGIRI MAJD
(ANONYMITY DIRECTION NOT made)

Appellant
and

ENTRY CLEARANCE OFFICER

Respondent

Representation

For the Appellant: Mr N. Ata of Ata & Co Solicitors
For the Respondent: Mr P. Nath, Home Office Presenting Officer

DECISION AND REASONS

1. The appellant is a citizen of Iran, born on 19 January 1942, whose wife and children are Swedish nationals living in the UK.

2. The appellant applied for admission to the UK under the Immigration (European Economic Area) Regulations 2006 ("2006 Regulations") as a family member of his wife. The application was refused and the appellant appealed. His appeal was heard by First-tier Tribunal Judge Shergill who, in a decision promulgated on 6 June 2016, dismissed the appeal. The appellant now appeals against that decision.

3. The factual background to this appeal is that the appellant is elderly and in poor health. He lives alone in a small village in Iran without any family or close friends to support him. His family (comprising of his wife, four children and grandchildren) all live in the UK and want their father/husband/grandfather to be able to join them in order that they can provide him with the support and assistance he needs. The appellant is financially self sufficient and is not in receipt of financial support or regular payments from his wife or children.

Decision of the First-tier Tribunal

4. Although the appellant initially applied for admission to the UK as a family member of his wife, at the First-tier Tribunal it was proposed that one of appellant's daughters would be his sponsor and the hearing proceeded on that basis.

5. The judge directed himself that the task before him was to determine whether the appellant was genuinely dependent on his daughter, who he accepted was a qualified person under Regulation 6 of the 2006 Regulations.

6. At paragraph 11 the judge stated that dependency was a purely factual test. He cited Reyes (EEA Regs: dependency) [2013] UKUT 00314, emphasising the passages therein that refer to the need for "an examination of all the factual circumstances" and a "case-by-case" analysis.

7. At paragraph 21 the judge stated: that:

"The problem that the appellant faces is that the state of the law with regards to dependency all has some connection to that dependency being at the very least in part financially based under Regulation 7."

8. In paragraph 23 the judge stated that he needed "to look, at least in part, at financial issues when assessing dependency." He added:

"I would also stress that the quality of the evidence before me in relation to medical issues is low and that would undermine physical and social conditions being assessed properly in any event".

9. The judge then found that the appellant did not meet the dependency requirement under the 2006 Regulations.

10. The grounds of appeal argue that the judge erred in law by dismissing the appeal solely on the basis that the appellant was not financially dependent on the sponsor. The contention made in the grounds, and argued by Mr Ata at the hearing, is that a family member can be dependent on an EEA national within the meaning of the 2006 Regulations even if that dependency does not take the form of financial dependency. Mr Ata argued that the EEA Regulations do not state that "financial dependence" is required and would have done so if the meaning was limited in this way. He referred to the case of Secretary of State for the Home Department v Islam & Anor [2012] EUECJ C-83/11 where there is a reference to "economic or physical dependence," (emphasis added) which he argued indicates dependence could exist even without economic support.

11. A further argument made in the grounds and by Mr Ata is that the judge failed to make clear findings about the non-financial dependency of the appellant, in view of his age, medical difficulties and care needs.

12. Mr Nath's response was to highlight and draw my attention to the paragraphs in the decision where the judge has considered the appellant's age and vulnerable condition (paragraph 16), emotional and physical issues (paragraph 17) and health condition (paragraph 18). Mr Nath argued that the judge had included within the decision sufficient information about the factual matrix and, having directed himself properly as to the law, reached a reasoned decision.

13. Neither party was able to draw my attention to any cases which have addressed the question of whether dependency can exist where the dependent person has no financial dependence on the sponsor. Nor could either party identify any cases where a person found to be dependent under the 2006 Regulations had not been financially dependent on the sponsor.

Consideration

14. The issue in dispute before the First-tier Tribunal was whether the sponsor's father can be regarded as her direct dependent relative in the ascending line within the meaning of Regulation 7(1)(c) of the 2006 Regulations.

15. Mr Ata criticises the judge's comment, at paragraph 21, that the state of law connects dependency to being in part based on a financial test. If, by this statement, the judge was implying there is a legal rather than factual test as to dependency I would accept there is an error (although not a material one, for the reasons given below). However, the judge's comment at paragraph 21, read in context, is in my view no more than an observation that in the reported cases where dependency has been found there has been a financial aspect.

16. I am satisfied that the judge approached the case in the correct way. He identified the relevant case law, notably Reyes, and made clear that the applicable test, and the test being applied to determine if the appellant was dependent on the sponsor, was a purely factual one. The judge then proceeded to apply the test, finding there to be an absence of financial dependency or evidence to support a finding of dependency in other ways.

17. The appellant is unwell, elderly and living alone. The quality of his life would no doubt improve if he were able to live with his family in the UK (or, indeed, if they travelled to Iran to be with him). It may be that were the appellant and his daughter to live in the same country (whether that be Iran, Sweden or the UK) he would become dependent on her as a consequence of the physical, emotional and social support she may provide. However, the test under Regulation 7(1)(c) is not whether the appellant would be dependent on the sponsor if they lived in the same country. Rather, it is whether, as a matter of fact, he is dependent on her.

18. It is clear from an examination of the factual circumstances that the appellant is not dependent on his daughter (or other family in the UK). They do not support him financially. Nor do they support him physically or in day to day activities. Although they would no doubt like to provide such support, the fact that they live in a different country (and do not visit him regularly) means that as a practical matter they are unable to, and therefore as a matter of fact do not, support the appellant in such a way that he can be described as being dependent on them. Accordingly, I am satisfied that the judge has not made an error of law.

Decision
A. The decision of the First-tier Tribunal did not involve the making of a material error of law and shall stand.
B. The appeal is dismissed.

Signed

Deputy Upper Tribunal Judge Sheridan

Dated: 24 January 2017