Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: IA/13681/2015

THE IMMIGRATION ACTS

Heard at Field House
Determination & Reasons Promulgated
On 21 April 2017
On 24 April 2017

Before

UPPER TRIBUNAL JUDGE KEKIĆ

Between

OSADEBAMWEN EDOKPAYI
(anonymity order not made)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr W Evans of Counsel, instructed by Templeton Legal Services
For the Respondent: Mr D Clarke, Senior Home Office Presenting Officer

DETERMINATION AND REASONS
1. The appellant challenges the determination of First-tier Tribunal Judge Beach dismissing his appeal against the respondent’s refusal to issue him a permanent residence card under the EEA Regulations 2006. He is a Nigerian national born on 12 December 1987 who arrived here to visit his EEA family member (his father) on 27 January 2007. On 22 March 2007, he applied for, and subsequently obtained, a residence card valid for five years from 5 September 2007. The applicant then overstayed and on 3 December 2014 applied for a permanent residence card which was refused on 23 March 2015 under Regulation 15(1)(b), with reference to 7(1). The respondent noted that the appellant’s documentary evidence demonstrated that he had been living apart from his father until February 2014 and had failed to provide any evidence of dependency upon him. He was advised that if he wished to remain on private and family life grounds, he should make a charged application on this basis.
2. The appeal came before First-tier Tribunal Judge Beach at Taylor House on 17 March 2016. The appellant was unrepresented. The judge heard evidence from the appellant and his father. He made findings as to dependency during the relevant period of March 2011 – March 2016. He considered the documentary evidence and found that the appellant had not established that he lived with his father throughout the relevant period and that, rather, the evidence showed that he had been living with his cousin. He reminded himself that that did not, however, necessarily mean that he was not dependent upon his father. He found, however, that there was no evidence of dependency, that the appellant had been supported by a government grant rather than his father during his studies and that he had not suggested that his father had paid for his rent. He took account of the evidence of the appellant’s employment noting that he only earned a little less than his father. He found that the appellant’s earnings were over what he would receive in public funds and that it could not, therefore, be said that he was unable to support himself. He concluded that dependency had not been established. The judge dismissed the appeal under the EEA Regulations and confirmed that there was no article 8 appeal before him.
3. The appellant sought and obtained permission to appeal on the following grounds: (1) that the judge had failed to apply the principles in Reyes [2014] EUECJ C-423/12 which established that a direct descendant of an EU citizen could still be regarded as a dependant even if in employment as a different position would infringe article 23 of the Directive; (2) that the judge should have distinguished the decision in Lim [2015] EWCA Civ 1383 as that case addressed the issue of dependency in the country of origin and (3) that there was a failure to consider the appellant’s claim of a private and family life in clear breach of article 7 of the Charter of Fundamental Rights.
The Hearing
4. At the hearing before me on 21 April 2017, I heard submissions from the parties. The appellant was in attendance.
5. Mr Evans relied upon his skeleton argument and his grounds. He acknowledged that the ECJ judgment in Reyes had not been before the judge but pointed out that the judge had referred to Lim which itself referred to Reyes. He submitted that the court had held that taking employment did not undermine the dependency of a family member and that article 23 afforded individuals some element of independency. He submitted that if the judge had accepted there was dependency between September 2011 and the date of hearing, he should have considered whether the applicant had a continuing right of residence under reg. 14. Mr Evans also submitted that an inability to raise article 8 in an EEA appeal did not prohibit an appellant from raising article 7 of the Charter. It had been held to be a matter to be considered in removal cases. Given the changes in the statutory appeals scheme, it would be reasonable to raise it as an issue in a case where there were no removal directions but where a decision to remove would in any event not give rise to an appeal. He asked that the decision be set aside and that the appeal be allowed on the evidence already submitted.
6. Mr Clarke responded. He submitted that the grounds were misconceived. The ECJ judgment of Reyes addressed the issue of employment but made it plain that dependence must exist and that an applicant must not be in a position where he could support himself. It was incumbent on the appellant to demonstrate that he needed support to meet his essential needs. The judge had properly considered the evidence put forward and reasonably concluded that the appellant did not live with his father and was not dependent upon him. He noted that there were no details of monies given to the appellant by his father and that the evidence given by the father was vague on the issue of support. The judge did not find that employment precluded the appellant from dependency. He undertook a thorough assessment and concluded that the appellant could support himself. That was the exact issue raised in Lim.
7. Mr Clarke submitted that the issue of the appellant having retained rights of residence was not raised at the hearing or in the grounds and no section 120 notice had been served. The appeal was under the old statutory regime. Article 7 had not been raised. The appellant was asking the Tribunal to consider an argument never previously made to the judge and an application never made to the respondent. The determination should be upheld.
8. Mr Evans replied. He stated that the judgments relied on by the respondent focused on dependency in the country of origin. The appellant lived with his father and remained dependent despite his employment. The judge did not consider his right to work. Section 120 related to appeals under the Immigration Rules which were not argued here. The appellant claimed to be his father’s dependant at the date of hearing and so article 7 should have been considered. It would also have been sensible for the judge to have considered reg 14.
9. At the conclusion of the hearing I reserved my determination which I now give.
Findings and conclusions
10. The judge was required to determine whether the appellant had resided in the UK with the EEA national in accordance with the Regulations for a continuous period of five years. Essentially, that meant whether the appellant had remained dependent upon his father for the period between March 2011 and March 2016. Dependency has been defined by the courts and a host of authorities is included in the determination of Reyes (EEA Regs: dependency) [2013] UKUT 00314 (IAC) at paragraph 18. Dependency must be genuine and not contrived. Material support for the family member must be provided by the EEA national although there is no need to determine reasons for that support. The family member should not be in a position to support himself. Determination of dependency is a factual test and must not be reduced to a bare calculation of financial dependency but should be a holistic examination of a number of factors including financial, physical and social circumstances, bearing in mind the underlying objective of maintaining the unity of the family (paragraph 19: Reyes). In the context of EU law, the test of dependency is not whether a person is wholly or mainly dependent, but whether he is reliant upon others for essential living needs (paragraph 22).
11. It is plain from the determination that the judge considered all the evidence put forward and did not restrict himself to matters of finance. He properly found that the appellant had not been living with his father during the five-year period and no challenge is made to that finding. There was no evidence, as the judge noted, that the appellant’s father had paid his rent whilst he was living elsewhere and indeed the appellant’s evidence was that he had been in receipt of a government grant whilst he was studying and that “everything was paid for by the government” (at paragraph 12). The judge found that the appellant’s father could give no details of support, maintaining that he had no evidence but that he fed him and provided him with money for necessities. The judge found that the appellant had also been in employment, that his income had increased with each year and that although he earned less than his father, it was not by a substantial amount. He calculated that the appellant’s employment generated an income greater than he would receive in benefits and so concluded that the appellant was not reliant upon his father for essential living needs.
12. I have taken note of the argument made about employment. However, it is plain from the determination that the judge did not decide that the appellant was not dependent upon his father simply because he was employed. He reached that decision because there was no evidence that the appellant was dependent upon his father for his essential needs. That was a finding of fact supported by the material before him and his assessment of the evidence and his conclusions disclose no errors of law. There was no need for the judge to consider the ECJ judgment of Reyes. It was not placed before him, it was not argued and it was not referred to in Lim (the cited paragraph refers to the Upper Tribunal’s decision on Reyes which pertains to another appellant). Nor is it relevant to the issues in this appeal. It gave approval to an individual’s search for work but it remains the case that even if employment is found, there is still a need to establish a situation of “real dependence” (at paragraph 20). Thus, even if the judge had specifically dealt with the ECJ decision, it would have made no difference to the outcome of the appeal. The judge did not find that the appellant was prohibited from taking employment. Nor did he dismiss the appeal because he found that the appellant’s employment meant that he could not be dependent upon his father. He undertook a factual assessment of the evidence adduced and reached a wholly sustainable conclusion. The first two grounds are not made out.
13. With respect to the issue of private and family life, the judge was entitled to conclude that no article 8 appeal had been raised. He properly relied on the reasoning contained at paragraphs 49-75 of Amirteymour (EEA appeals; human rights) [2015] UKUT 00466 (IAC). The appellant was advised by the respondent when his applicant was refused that he should make a separate application on private and family life grounds if he so wished. He has not done so. Nor did he seek to pursue such an argument at his hearing although I appreciate he was unrepresented. The reliance in the grounds on article 7 of the EU Charter is no more than an attempt to argue article 8 of the ECHR. In the absence of any application on that basis having been made to the respondent or to the judge, it is difficult to see how such an argument can now be pursued. However, even if the judge had taken it upon himself to consider whether such a claim was made out, then on the evidence before him and given his findings as to the lack of dependency, and the absence of any evidence as to the nature of what private/family life was established here, no other outcome would have been possible.
14. Mr Evans also argued that the judge should have considered the appellant’s continued right of residence under reg. 14(2). This is not an argument made in the grounds and there has been no application to amend the grounds so as to include it. I do not, therefore, consider it save to say that even if this had been an admissible argument, the judge had not, as asserted in paragraph 32 of Mr Evans’ skeleton argument, found that the appellant was dependent upon his father between September 2011 and March 2016. That is plain from paragraphs 27, 28 and 30.
15. The judge properly considered all the evidence and reached wholly sustainable findings and conclusions. No errors of law have been identified.
16. Decision
17. The appeal is dismissed.

Signed

Upper Tribunal Judge

Date: 21 April 2017