Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2021-001579
UI-2021-001581

First-tier Tribunal No: EA/01656/2021
EA/01662/2021

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On the 24 October 2023

Before

UPPER TRIBUNAL JUDGE HANSON
UPPER TRIBUNAL JUDGE BRUCE

Between

AZAD IZADEEN ANWAR
AHMED IZADEEN ANWAR
(NO ANONYMITY ORDER MADE)
Appellants
and

AN ENTRY CLEARANCE OFFICER
Respondent

Representation:
For the Appellant: Mr Akram on 7 March 2023 and Mr G Brown on 28 September 2023 instructed by Jiva Solicitors.
For the Respondent: Mr McVeety, a Senior Home Office Presenting Officer.

Heard at Manchester Civil Justice Centre on 7 March 2023 and 28 September 2023

DECISION AND REASONS

1. The Appellants appeal with permission a decision of First-tier Tribunal Judge Birrell, (‘the Judge’), promulgated on 30 June 2021, in which the Judge dismissed their appeals against the refusal of their applications for EEA Family Permits to join Zeki Awar (‘the Sponsor’), a citizen of the Netherlands, in the UK, as Extended Family Members (‘EFM’).
2. The refusal of the applications, which we set out in full as similar terminology is appearing in a number of refusals, reads:

You state that your Brother is a Dutch national. You have provided evidence that your sponsor holds a Dutch passport.
To evidence your relationship with your Brother, you have submitted a birth certificate for yourself. However, you have not submitted any historical documents available or issued at the time of your sponsor’s birth to evidence their parentage. Without further historical documentary evidence or other credible documentation evidencing their parentage, I am not satisfied that you have provided sufficient evidence that your relationship with your sponsor is as stated.
Only those family members referred to under Article 2 of the Directive 2004/ 38/EC have an automatic right to join or accompany an EEA family member to another member state when that EEA national is exercising a Treaty right.
Article 3 of Directive 2004/38/EC provides the basis for a member state other relatives, such as ‘extended family members’ and determine the terms of entry and residence to such ‘beneficiaries’ in accordance with their own domestic legislation. (Articles 3 (2)).
The United Kingdom has transposed the terms of Article 3 into Regulation 8 of the Immigration (European Economic Area) Regulations 2016. As Regulation 8(4) makes clear, United Kingdom is allowed to set terms on when it will accept extended family members and allow them to reside in the United Kingdom as family members of an EEA national.
To meet the relevant EEA Regulation 8, you must demonstrate that you are an ‘extended family member’ of your EEA sponsor and that your EEA sponsor is a qualified person. This means relatives of the EEA national must be dependent upon their sponsor. Financial dependents should be interpreted as meaning that you need the financial support of the EEA national or his or her spouse/civil partner to meet your essential needs in the country where you are present and that the sponsor will be able to support you once in the UK.
On your application you state that your sponsor has resided in the UK since 22 August 2014 and that you are financially dependent on him. As evidence of this you have provided money transfer remittance receipts from your sponsor to you, however, it is noted that these transfers are dated immediately prior to your application (within the last 3 months). Unfortunately, this limited amount of evidence in isolation does not prove that you are financially dependent on your sponsor. I would expect to see substantial evidence of this over a prolonged period, considering the length of time your sponsor has been resident in the United Kingdom.
I would also expect to see evidence which fully details yours and your family’s circumstances. Your income, expenditure and evidence of your financial position which would prove that without the financial support of your sponsor your essential living needs could not be met.
Home Office records show that your sponsor has a wife and at least 5 dependent children. The submitted evidence shows that he earns a net income of approximately £689 per month, as stated on his latest HMRC tax return. Due to his low income, your sponsor also receives state benefits, namely, Universal Credit. I am therefore not satisfied that it is sustainable for your sponsor to financially support you, along with his own family in the UK. Therefore, after considering these factors, there is a risk that if you did arrive in the United Kingdom that you may become a burden on the public funds system of this country.
On the evidence submitted in support of your application and on the balance of probability, I am not satisfied that you are related as claimed; or dependent on your sponsor. I am therefore not satisfied that you are a family member in accordance with regulation 8 of the Immigration (European Economic Area) Regulations 2016.

I therefore refuse your EEA Family Permit application because I am not satisfied that you meet all of the requirements of regulation 12 (se ECG’s EUN2.23) of the Immigration (European Economic Area) Regulations 2016.

3. Having considered the evidence the Judge finds that the Appellants had produced sufficient evidence to establish the relationship was as claimed [9 – 11], that the Appellants are dependent upon the financial support of the Sponsor to meet their essential needs [17], but dismissed the appeals for the reason set out in that paragraph, which is in the following terms:

17. Looking at the evidence before me I accept that the Appellants have met the evidential burden of establishing that are related as claimed in that they are dependent on the financial support of the Sponsor to meet their essential needs. However given that the Sponsor’s own means are limited and his earnings are such that the state acknowledges that he is entitled to receive support I find that there is a real risk of the parties becoming an unreasonable burden on the social assistance system in the UK as there is no satisfactory evidence that the Appellants will be able to find employment within a reasonable time or afford the costs of accommodation in the UK.

4. The Appellants sought permission to appeal asserting:

The Judge has erred in:

a. Taking in account irrelevant factors and not allowing the appeal on the basis the positive findings of fact made.
b. Misdirecting herself in law on the issue of how the discretion under Regulation 12(4) operates.

Ground 1- Taking in account irrelevant factors and not allowing the appeal on the basis the positive findings of fact made.

3. Both refusal decisions raised the issue as to whether the requirements of Regulation 12 of the EEA regulations were met and in each of the decisions the refusals were on the basis that the respondent was not satisfied as to the relationship as claimed, nor that each of the A’s were dependent on the sponsor.
4. Notably the R had not refused the case under Regulation 13 of the EEA regulations, this regulation only arose at the hearing in discussions as to whether there was interplay, between the regulations when looking at the issue of the exercise of discretion conferred by Regulation 12(4) of the Regulations. Article 13 is concerned with the initial right of residence and it only relevance potentially was whether the issue on “unreasonable burden on the social assistance system” was established on the facts and whether this impacted on the issue of dependency being established.
5. The sponsor had given evidence that he only had to resort to Universal credit as a result of the Covid 19 pandemic and in any event his evidence was that the household income was sufficient for him to be able to support both his brothers.
6. The Judge found at paragraphs 10 -11 that the A’s had satisfied her that each of them were related as claimed.
7. Further with regard to the issue of dependency the Judge finds at paragraph 17 that, “Looking at the evidence before me I accept that the Appellant’s have met the evidential burden of establishing, they are related as claimed and that they are dependent on the financial support of the Sponsor to meet their essential living needs.”
8. The A’s contend that arguably given these findings the appeals of both appellants should have been allowed. Once the Judge had accepted this, notwithstanding, that it was on the basis of the Sponsor being in receipt of income that included Universal credit, then arguably she should have allowed both the appeals.
9. The law relating to dependency was succinctly set out by the Upper Tribunal in: EA/04864/2019:

“17. Article 3(2)(a) of Directive 2004/38 ('the Citizens Directive') requires the host Member State to facilitate entry and residence of family members other than spouses, civil partners and direct relatives in the ascending or descending line irrespective of their nationality who, 'in the country from which they had come', were dependents or members of the household of the Union Citizen having a primary right of residence. Article 3(2)(a) has been transposed domestically by regulation 8 of the Immigration (European Economic Area) Regulations 2016 ('the 2016 Regulations').
18. The defining criteria of an extended family member under regulation 8 is the requirement for there to be dependency upon the Union citizen or to be a member of the Union citizen's household.
19. As confirmed by the CJEU in ( C-83/11) Secretary of State for the Home Department v. Rahman EU:C:2012:519, [2013] QB 249 article 3(2) does not require Member States to grant every application for entry or residence submitted by family members of an EU citizen who do not fall under the definition in article 2(2) of the Citizens Directive, even if they are able to demonstrate dependence on that citizen. The method of entry under this route is therefore discretionary in nature.
20. In (C-1/05) Jia v Migrationsverket EU:C:2007:1, [2007] QB 545, at [43], the ECJ confirmed that dependence under article 1(1)(d) of Directive 73/148/EEC, a Directive concerned with the abolition of restrictions on movement and residence within the EC, must be interpreted to the effect that 'dependent on them' meant that members of the family of a Community national established in another Member State within the meaning of article 43 of the EC Treaty needed 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 came at the time when they applied to join the Community national.
21. In Bigia v. Entry Clearance Officer [2009] EWCA Civ 79, [2009] Imm AR 515, a matter concerned with the Citizens Directive, the Court of Appeal confirmed at [24] that where the question of whether someone is a 'family member' depends on a test of dependency, that test is as per [43] of the ECJ's judgement in Jia.
22. In Moneke (EEA - OFMs) Nigeria [2011] UKUT 341(IAC), [2011] Imm AR 928 the Tribunal confirmed at [41] and [42]:

41. Nevertheless dependency is not the same as mere receipt of some financial assistance from the sponsor. As the Court of Appeal made plain in SM (India) (above) dependency means dependency in the sense used by the Court of Justice in the case of Lebon [1987] ECR 2811. For present purposes we accept that the definition of dependency is accurately captured by the current UKBA ECIs which read as follows at ch.5.12:

"In determining if a family member or extended family member is dependent (i.e., financially dependent) on the relevant EEA national for the purposes of the EEA Regulations:

Financial dependency should be interpreted as meaning that the person needs financial support from the EEA national or his/ her spouse/civil partner in order to meet his/her essential needs - not in order to have a certain level of income.

Provided a person would not be able to meet his/her essential living needs without the financial support of the EEA national, s/he should be considered dependent on that national. In those circumstances, it does not matter that the applicant may in addition receive financial support / income from other sources.

There is no need to determine the reasons for recourse to the financial support provided by the EEA national or to consider whether the applicant is able to support him/herself by taking up paid employment.

The person does not need to be living or have lived in an EEA state which the EEA national sponsor also lives or has lived."

42. We of course accept (and as the ECIs reflect) that dependency does not have to be "necessary" in the sense of the Immigration Rules, that is to say an able bodied person who chooses to rely for his essential needs on material support of the sponsor may be entitled to do so even if he could meet those needs from his or her economic activity.

Ground 2-Misdirecting herself in law on the issue of how the discretion under Regulation 12(4) operates.

10. The A’s contend that it is unclear whether there is in fact an interplay between the issue of “becoming an unreasonable burden on the social assistance system in the UK” referred to under regulation 13 and the discretion conferred by regulation 12(4).
11. The R had not refused the case under regulation 13 and arguably the Judge erred in fact and law by stating at paragraph 2 of the decision that the Respondent has also refused the applications under regulation 13. The issue of regulation 13 arose only in discussions at the hearing. In effect the respondents case was that no dependency had been evidenced that it was “sustainable for the sponsor to support both his family and the appellants”. That was an issue of fact which the Judge arguably determined in each of the A’s favour.
12. So far as relevant Regulation 12 provides:

“12.—(1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and—

(4) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national (the relevant EEA national) who applies for one if—

(a)the relevant EEA national satisfies the condition in paragraph (1)(a);

(b)the extended family member wants to accompany the relevant EEA national to the United Kingdom or to join that EEA national there; and

(c)in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit.”

13. The A contends that in assessing whether “in all the circumstances “of the case this imports the issue of discretion which is for the ECO rather than the Judge to consider.
14. The A contends that taking into account regulation 13 in the manner that the Judge did was impermissible and the Judge erred in her approach.
15. In any event the A would contend that it had not been established on the evidence that there was a “real risk of the A’s becoming an unreasonable burden on the social assistance system in the UK. “, and further it is unclear whether the right of initial residence conferred by Regulation 13 should be a relevant factor to consider in the context of a refusal under Regulation 12 so far as extended family members under Regulation 8 of the regulations is concerned.

The Law

5. The provisions of the Immigration (European Economic Area) Regulations 2016 (as amended) (‘the 2016 Regulations’) that concern us are regulations 8, 12 and 13, which read:

“Extended family member”
8.— (1) In these Regulations “extended family member” means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies a condition in paragraph (1A), (2), (3), (4) or (5).
(1A) The condition in this paragraph is that the person—
(a) is under the age of 18;
(b) is subject to a non-adoptive legal guardianship order in favour of an EEA national that is recognised under the national law of the state in which it was contracted;
(c) has lived with the EEA national since their placement under the guardianship order;
(d) has created family life with the EEA national; and
(e) has a personal relationship with the EEA national that involves dependency on the EEA national and the assumption of parental responsibility, including legal and financial responsibilities, for that person by the EEA national.
(2) The condition in this paragraph is that the person is—
(a) a relative of an EEA national; and
(b) residing in a country other than the United Kingdom and is dependent upon the EEA national or is a member of the EEA national’s household; and either—
(i) is accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom; or
(ii) has joined the EEA national in the United Kingdom and continues to be dependent upon the EEA national, or to be a member of the EEA national’s household.
(3) The condition in this paragraph is that the person is a relative of an EEA national and on serious health grounds, strictly requires the personal care of the EEA national or the spouse or civil partner of the EEA national.
(4) The condition in this paragraph is that the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national.
(5) The condition in this paragraph is that the person is the partner (other than a civil partner) of, and in a durable relationship with, an EEA national or the child (under the age of 18) of that partner, and is able to prove this to the decision maker.
(6) In these Regulations, “relevant EEA national” means, in relation to an extended family member—
(a) referred to in paragraph (2), (3) or (4), the EEA national to whom the extended family member is related;
(b) referred to in paragraph (5), the EEA national who is the durable partner of the extended family member.
(7) In paragraphs (2), (3) and (4), “relative of an EEA national” includes a relative of the spouse or civil partner of an EEA national.
(8) Where an extensive examination of the personal circumstances of the applicant is required under these Regulations, it must include examination of the following—
(a) the best interests of the applicant, particularly where the applicant is a child;
(b) the character and conduct of the applicant; and
(c) whether an EEA national would be deterred from exercising their free movement rights if the application was refused.

Issue of EEA family permit
12.— (1) An entry clearance officer must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and—
(a) the EEA national—
(i) is residing in the United Kingdom in accordance with these Regulations; or
(ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and
(b) the family member will be accompanying the EEA national to the United Kingdom or joining the EEA national there.
(2) An entry clearance officer must issue an EEA family permit to a person who applies and provides evidence demonstrating that, at the time at which the person first intends to use the EEA family permit, the person—
(a) would be entitled to be admitted to the United Kingdom because that person would meet the criteria in regulation 11(5); and
(b) will (save in the case of a person who would be entitled to be admitted to the United Kingdom because that person would meet the criteria for admission in regulation 11(5)(a)) be accompanying to, or joining in, the United Kingdom any person from whom the right to be admitted to the United Kingdom under the criteria in regulation 11(5) is derived.
(3) An entry clearance officer must issue an EEA family permit to—
(a) a family member who has retained the right of residence; or
(b) a person who is not an EEA national but who has acquired the right of permanent residence under regulation 15.
(4) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national (the relevant EEA national) who applies for one if—
(a) the relevant EEA national satisfies the condition in paragraph (1)(a);
(b) the extended family member wants to accompany the relevant EEA national to the United Kingdom or to join that EEA national there; and
(c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit.
(5) Where an entry clearance officer receives an application under paragraph (4) an extensive examination of the personal circumstances of the applicant must be undertaken by the Secretary of State and if the application is refused, the entry clearance officer must give reasons justifying the refusal unless this is contrary to the interests of national security.
(5A) An EEA family permit issued under this regulation may be issued in electronic form.
(6) An EEA family permit issued under this regulation must be issued free of charge and as soon as possible.
(7) But an EEA family permit must not be issued under this regulation if the applicant or the EEA national concerned is not entitled to be admitted to the United Kingdom as a result of regulation 23(1), (2) or (3) or falls to be excluded in accordance with regulation 23(5).
(8) An EEA family permit must not be issued under this regulation to a person (“A”) who is the spouse, civil partner or durable partner of a person (“B”) where a spouse, civil partner or durable partner of A or B holds a valid EEA family permit.
Initial right of residence
13.— (1) An EEA national is entitled to reside in the United Kingdom for a period not exceeding three months beginning on the date of admission to the United Kingdom provided the EEA national holds a valid national identity card or passport issued by an EEA State.
(2) A person who is not an EEA national but is a family member who has retained the right of residence or the family member of an EEA national residing in the United Kingdom under paragraph (1) is entitled to reside in the United Kingdom provided that person holds a valid passport.
(3) An EEA national or the family member of an EEA national who is an unreasonable burden on the social assistance system of the United Kingdom does not have a right to reside under this regulation.
(4) A person who otherwise satisfies the criteria in this regulation is not entitled to a right to reside under this regulation where the Secretary of State or an immigration officer has made a decision under regulation 23(6)(b) (decision to remove on grounds of public policy, public security or public health), 24(1) (refusal to issue residence documentation etc), 25(1) (cancellation of a right of residence), 26(3) (misuse of right to reside) or 31(1) (revocation of admission), or an order under regulation 23(5) (exclusion order) or 32(3) (deportation order), unless that decision or order, as the case may be, is set aside, revoked or otherwise no longer has effect.
6. The 2016 Regulations were revoked on 31 December 2020 although regulation 8 continued to apply to an appeal which was pending on Implementation Period Commencement Day, by virtue of paragraphs 5 and 6 of Schedule 3 to the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations 2020/1309.
7. Regulations 12 and 13 were not preserved and the family permit route was closed on 30 June 2020, but no submissions were made to us on his point, presumably as by virtue of Article 10(3) of the Withdrawal Agreement the respondent is required to issue a ‘product’ to all those who EEA family permit applications was successful, even though the family permit route is now closed – see p11 of the respondent’s guidance entitled EU Settlement Scheme Family Permit and Travel Permit, version 12, and [7]-[10] of Begum v Secretary of Secretary of State for the Home Department [2021] EWCA Civ 1878.)

Discussion

8. The point we are being asked to consider is not, arguably, a new point as the discretionary nature of whether to grant entry to an extended family member (EFM) is settled law. What is new is that the Tribunal has not considered in a reported decision, how to approach the question of future dependency.
9. Although the decision of the ECO does not in terms cite regulation 13(3), it was accepted before us that the reference to the Appellants becoming a burden on the social assistance system of the UK is a reference to this provision. All parties have approached this appeal on the basis the Judge dismissed the appeals in reliance on regulation 13(3). The lawfulness of such an approach, and the relevance of the UK based Sponsor’s own financial circumstances when assessing the lawfulness of the respondent’s exercise of discretion under regulation 12, is the subject of this guidance by the Upper Tribunal.
10. We find that the ECO unlawfully applied the test in regulation 13(3).That provision is not applicable as it clearly refers to those who have already entered the United Kingdom and have become a burden on the social assistance system. The provision also refers in terms only to EEA nationals and their family members not to extended family members. We find the Judge erred in law in refusing the appeals by reference to this provision for the same reason.
11. We accept that by virtue of regulation 7(3) an extended family member who has been issued with an EEA family permit, a registration certificate or a residence card must be treated as a family member, provided certain conditions are met, but the issue in this appeal, as in many similar appeals, is that the ECO maintains the applicant is not entitled to an EEA family permit, registration certificate, or residence card.
12. The case was re-listed as a result of it being confirmed by Mr McVeety that there appeared to be a discrepancy between the submissions he made to the Panel on 7 March 2023 and the Secretary of State’s position confirmed by the Policy Team, which was communicated in writing after the hearing.
13. The Secretary of State’s written submissions read:

Does a refusal under regulation 15(4) apply to EEA family permit applications?

No – regulation 15(4) is for making a public policy decision to restrict a right of permanent residence. So it would only be considered when deciding an application for a document certifying permanent residence or permanent residence card, or in a deportation or exclusion case where the person already has a right of PR.

There are other public policy provisions for other scenarios. But a public policy decision would not be made in the case of someone applying as an extended family member unless the person has already been documented as an extended family member. If the person was applying for an EEA family permit, that suggests they were probably not yet documented under the EEA Regulations.

Tribunal’s written request

When considering, under regulation 12(4)(c) of the EEA Regulations, whether it appears to the entry clearance officer (‘ECO’) appropriate to issue an EEA family permit to an extended family member who meets the criteria of regulation 8, regulation 12(5) requires an ‘extensive examination’ of the applicant’s personal circumstances. Regulation 8(8) specifies three factors which are required to form part of that extensive examination, but it is not an exhaustive list. The ECO is to consider any factor relevant to the question of whether it is appropriate to issue the document. Before issuing a document, the ECO must be satisfied on the balance of probabilities that it is appropriate to do so.

Where a person has been found to fall within regulation 8 because they were dependent on an EEA national who was exercising EU free movement rights in the UK (before EU law ceased to apply in the UK at 11pm on 31 December 2020), it is submitted that the ECO is entitled to consider, as part of the extensive examination which will inform whether it is appropriate in all the circumstances to issue an EEA family permit, the provenance of the funds which are meeting the person’s essential needs, for example to establish whether the person is dependent on the EEA national, or dependent on state financial support via the EEA national.

In circumstances where the EEA national’s income is modest and they already require financial support from the state to meet their own essential needs (and those of their family members already in the UK), it is reasonable to conclude that the EEA national is also unable to finance the extended family member’s essential needs without that state support. It would be remiss of the ECO not to take into account the burden on the UK taxpayer which already exists, and the risk of exacerbating that burden by facilitating the extended family member’s entry to and residence in the UK, together with any other relevant factors (including but not limited to those set out at regulation 8(8)), when considering whether it is appropriate to issue the document.

In this case, given the EEA national was already reliant on state support to meet his own and his immediate family’s needs, the First-tier Tribunal was entitled to give little credence to the claim that the appellants were confident of securing employment on arrival in the UK given their total lack of employment experience and inability to speak English and to find there was no evidence to substantiate the claim that a landlord had agreed to house the appellants rent-free for as long as they needed to find employment. This is in addition to the EEA national financing the appellant’s other essential needs (such as food and utility bills) from his Universal Credit payments.

14. Regulation 12(4) of the 2016 Regulations provides that an EEA family permit may be issued to an EFM of an EEA national if three conditions are met, being:

The EEA national is residing in the UK in accordance with the 2016 regulations, or will be travelling to the UK within six months of the date of application and will be residing in the UK in accordance with the regulations.
the extended family member wishes to accompany the EEA national to the UK would join them there.
in all the circumstances, it appears to be appropriate to issue the EEA family permit.

15. In Rahman [2012] CJEU Case-83/11 the Court of Justice of the European Union (CJEU) considered whether, having met the defining criteria for an EFM, the applicant thereafter had an automatic right to enter and reside with the Union citizen in the host state. The Court found that Article 3 Directive 2004/38/EC did not automatically entitle an EFM, who meets the defining criteria, to join and reside with a Union citizen in a host Member State. All that Article 3 requires of a Member State is that it should make it possible for an EFM to obtain a decision upon his application that is founded upon an extensive examination of his personal circumstances and, in the event of refusal, to justify the decision with reasons. It follows that the host country has a wide discretion with regard to the selection of factors that are taken into account. However, the host Member State must ensure that its legislation contains criteria for the exercise of that discretion which are consistent with the normal meaning of the term ‘facilitate’ and all the words relating to dependents used in Article 3 (2), and which do not deprive that provision of its effectiveness. Examples of appropriate considerations will be the extent of economic and physical dependence and the degree of relationship between the family member and the Union citizen whom he wishes to accompany or join.
16. The national legislation in the UK is to be found in the 2016 Regulations (as amended).
17. Modernised Guidance provided to caseworkers is available in the publication entitled Free Movement Rights: extended family members of EEA nationals, version 7.0 published on 27 March 2019.
18. The guidance divides the process of considering an application by an EFM into four stages. Stage 1 requires consideration of the status of the EEA sponsor, Stage 2 consideration of the relationship, Stage 3 qualifying conditions, and Stage 4 an extensive examination of personal circumstances.
19. It was submitted by Mr Brown that what is required at this stage of the assessment is consideration of the extensive examination of the personal circumstances of the appellant only. We accept that as a general proposition, but not as an absolute, as it is important not to lose sight of the fact that the 2016 Regulations incorporated into domestic legislation Directive 2004/38/EC (‘the Free Movement Directive’). A material element therefore to be considered as part of the extensive examination of all the circumstances is the effect the decision has on the EEA national exercising their free movement rights. That requires the decision-maker to consider whether the EEA national will be deterred from exercising their free movement rights if the application by the EFM is refused in light of the facts and circumstances of the relationship and dependency in each case.
20. It is also necessary for the decision-maker to consider the question of whether the grant of the application is conducive to the public good. Extended family members do not benefit from the protection granted to family members on the grounds of public policy, public security or public health until they have been issued with a document under the regulations, meaning at this stage consideration should be focused on whether there is any evidence of any factors weighing against the admission of the individual on the basis their presence is not conducive to the public good. The guidance makes it mandatory to refuse an application if refusal is justified on grounds of public policy, public security or public health grounds.
21. Decision-makers are also required to consider evidence of criminality, either in the UK or abroad, and whether there is evidence of any adverse immigration history.
22. The final category of “any other reasons” advises the decision-maker that they must consider if there are any other reasons why it is not in the interests of the public good to issue the applicant with a registration certificate or residence card. We find this confers a broad discretion upon the decision maker.
23. In terms of the public good, the Secretary of State for the Home Office has responsibility for the protection of the public good in the United Kingdom. The public good refers to issues that benefit all members of the society. That will include management of the economic aspects including the burden upon society as a whole as a result of claims made upon the public purse, through benefits or otherwise.
24. We do not find anything irrational, unlawful, or contrary to an individual’s rights under the Directive, for a decision-maker considering an application for leave to enter the UK by a EFM to take into account the overall impact of that person’s entry to the UK, individually or cumulatively if they have family members, upon any aspect of society, including the economic well-being of the UK.
25. Whilst it is clearly right to say that the ‘detailed examination of all the circumstances’ must be focused on the applicant himself, we are not persuaded that this requires the decision maker to ignore clearly foreseeable consequences flowing directly from the appellant’s entry to the UK in the future. If they are to stay with the sponsor who is, as a result of his or her own financial situation, in receipt of public funds or housing allowance, and where this would be increased as a result of the EFM’s entry to the UK, we find that this falls within the scope of matters a decision-maker is reasonably entitled to consider.
26. Another argument that has been raised elsewhere is that the Regulations place no restriction on how a Sponsor may spend the money which they received by way of public funds. This is an argument that was considered by the Tribunal previously in relation to the maintenance requirement of the Immigration Rules and whether a person in receipt of public funds could meet the same if they are solely dependent upon means tested benefits. The finding on that occasion is that there is no restriction on how an individual who receives public funds chooses to spend them. The hope is always that they spend them to meet the needs of the family or themselves, if appropriate, to ensure the standard of living they received does not drop below a minimal accepted standard. The argument we are considering, however, addresses another issue which is whether it is lawful for a decision-maker to consider the impact upon the EEA national sponsor if the EFM joins them in the UK. It may be that if there is real evidence the EEA national Sponsor will use a proportion of the funds provided to meet other accepted needs of their family in the UK, hence possibly dropping the standard of living for those family members below the acceptable minimum level, there may be a strong public interest in refusing to exercise discretion in the EFM’s favour. That is however a fact specific issue.
27. Mr Brown provided the Upper Tribunal with a summary of his arguments after the hearing, by email, and the following form:

I confirm that I maintained that based on the positive findings of fact made by the Judge with regard to the Regulation 8 issue that the appeal should be allowed.

On the question of the issue of whether the future circumstances of an applicant are relevant in the exercise of discretion under Regulation 12(5) and who and when that should be conducted, I submitted that the expressed policy of the respondent is clearly that I, .e expressed policy. It will be a matter for the Tribunal to determine what it makes of that expressed policy.

What is clear however is that any examination of the facts in determining that future exercise of discretion must include factors such as the sponsors evidence as to additional income [ in this case the sponsor said that he would work additional hours as a taxi driver if needed income from other sources see statement dated 23.2.2021 para 6 “ Furthermore the money I have regularly used this far to maintain the Appellants will be used to maintain them in the UK. Therefore , it should be accepted I am more than capable of maintaining the Appellants. Moreover , I would be capable of doing more work to increase my income if necessary, too.”]
Also the evidence of the sponsors daughter [Miss Dirok Anwar is also of relevance. She confirmed that she was in employment . She said in her statement “ Secondly , as I derive an income ,I use this to contribute towards the overall cost of our family’s maintenance and accommodation. Thus, this eases the burden on my father and allows him to meet all his costs comfortably. I would like to go on record to state that ai am happy to use my income to help my father maintain our family as well as our uncles for the foreseeable future.

Additional oral evidence was that each of the appellants would find jobs after their arrival.

I expressed an uncertainty as to the timing of any “extensive examination “. Is the extensive examination to be limited to the facts as presented on application or on facts as found after an appeal.

I also expressed concerns about the extent of representations that could be made at first instance about the apparent exercise of this discretion.

It was not incumbent on the Judge to carry of out the extensive examination under regulation 12(5).
That examination involves wide ranging and fact sensitive examination by the ECO of the personal circumstances including issues mentioned in Regulation 8 (8) of the 2016 regulations. That examination should potentially be conducted to the prism of relevant findings of fact made by the Judge at first instance.

In this case the evidence that the sponsor would take additional work, his daughter would continue to provide financial support and that each of appellants would get jobs would decrease any risk that the appellant’s would become a burden of the public health system of the UK.

I confirm that I invited the Tribunal to allow the appeals on that basis that each of the Appellants were related as claimed and dependant on their EEA sponsor. It would be a then [and is a matter] for the ECO to determine whether the family permit should be issued in light of the decision of the FTT.

28. It was not disputed before us that a decision-maker is not lawfully entitled to refuse to issue a Family Permit on the basis an applicant may, at some point in the future, become an unreasonable burden on the social assistance system of the UK without sufficient evidence of this fact. Such a suggestion is speculative. We do find, however, that if there is clear evidence that an applicant will become such a burden, that may form part of the consideration of whether discretion should be exercised in an applicant’s favour.
29. In relation to a specific submission made by Mr Brown that any assessment of possible future consequences is speculative we to a certain extent agree. Without the benefit of a crystal ball enabling the decision-maker to look into the future there may be a certain element of speculation, but it must be speculation based upon a factual or evidential basis. For example, in a case involving a minor applicant who is in education who seeks to come to the UK as an EFM to join an EU national sponsor, intending to continue with their education in the UK, the EFM is unlikely to be able to obtain work or make a positive economic contribution to the household of the EU national sponsor. In some cases it may be that there is evidence that some form of contribution may be realistically made giving rise the question of whether that is sufficient. That, again, is a question of fact. In a case in which an assertion is made that the EFM intends to work, it may depend upon whether such an intention is realistic in all the circumstances. For example, does the individual have experience which will enable them to obtain employment in the UK job market; does the individual speak sufficient English; is there a realistic and credible job offer available that will produce sufficient income to allay the fears of the decision-maker?
30. We also accept it is important that the decision maker does not treat examples of the discretionary factors as requirements.
31. We also heard submissions in relation to the right of appeal. The only permitted ground of appeal is that the decision breaches the appellant’s rights under the EEA Treaties, (see regulation 36 and Schedule 2 EEA Regulations).
32. If discretion has not been exercised at all, or properly, possibly as a result of a mistake of fact, we find the appropriate remedy is to allow the appeal on the grounds that the appellant’s rights under the EEA Treaties are breached either because, for example, the decision-maker got the facts wrong or failed to undertake the required detailed assessment correctly.
33. We agree with Mr Brown that if the discretion has not been exercised by the decision-maker a Tribunal cannot consider the matter for itself. See Macastena v SSHD [2018] EWCA Civ 1558.
34. If discretion has been exercised following the assessment being undertaken in a rational and comprehensive manner, supported by adequate reasons, it is unlikely that the decision will breach an applicant’s rights under the Treaties.

Conclusion

35. It is clear from a reading of the refusal that the ECO in this appeal has not undertaken the required extensive examination of the personal circumstances of the Appellants.
36. The only ground of appeal available to the Appellants is that the decision is in breach of their rights under the EU Treaties. Our jurisdiction is limited to expressing that conclusion and we have no authority to consider how the discretion ought to have been exercised or whether it should have been exercised differently.
37. There is no challenge to the finding concerning the nature of the relationship or that the Appellants are dependent upon their EEA national Sponsor which shall be preserved findings. We find the Judge has erred in law in a manner material to the decision to dismiss the appeals and substitute a decision to find that the decision is in breach of the Appellants rights under the EU Treaties in that no lawful consideration of regulation 12 has been undertaken.
38. It will be for the respondent to consider, with reference to Article 10(3) of the Withdrawal Agreement whether she should grant a document to the Appellants who the Judge accepted were the extended family members of a qualified person.

Notice of Decision

39. The First-tier Tribunal materially erred in law. We set that decision aside. We substitute a decision to allow the appeal on the basis the refusal of the ECO is in breach of the Appellants rights under the EU Treaties in that no lawful consideration of regulation 12 has been undertaken.

C J Hanson
Judge of the Upper Tribunal
Immigration and Asylum Chamber