Automated Summary
Key Facts
The appellant, a 25-year-old Bangladeshi citizen, appealed against a 2016 residence card refusal based on claimed dependency on her mother, an EEA national working in the UK. The First-tier Tribunal found no dependency due to the appellant's higher income (£156/week net from ISS + £50/week tuition) compared to her mother (£165–175/week net). The Upper Tribunal later found an error in law, noting the Judge incorrectly assessed accommodation costs by splitting rent notionaly and failed to address whether the mother provided free accommodation. Key facts included the mother paying £2,100/month rent, utilities, and food for a household of six, with the appellant living rent-free. The father, in Rome, sent £2,000 in 2018. The Judge accepted the appellant's evidence but erred in concluding she could afford accommodation costs independently.
Issues
- The primary legal issue was whether the First-tier Tribunal Judge correctly determined that the appellant was not dependent on her mother for the purposes of the Immigration Acts. The Judge considered the appellant's earnings and concluded she could afford a modest contribution to rent, thereby negating dependency. The Upper Tribunal found this approach flawed, emphasizing that the Judge failed to properly assess the actual provision of accommodation by the mother and the role of housing benefits in sustaining the household.
- A secondary issue was the Judge's treatment of the mother's housing benefits. The respondent argued the benefits primarily supported the household, but the Upper Tribunal concluded that these benefits enabled the mother to maintain the family home, including providing accommodation for the appellant. This dependency on benefits was not properly factored into the dependency assessment, further undermining the Judge's conclusion.
Holdings
- The First-tier Tribunal's decision dismissing the appellant's appeal on the basis that she had not established dependency on her mother involved an error of law. The Judge incorrectly assessed dependency by focusing on the appellant's ability to afford a modest contribution to rent rather than whether she actually received accommodation support from her mother. The provision of rent-free accommodation by the mother, combined with the mother's reliance on benefits to maintain the household, should have been sufficient to establish dependency, as the benefits 'flow through' to enable the mother to support her family.
- The appeal is allowed, and the First-tier Tribunal's decision is set aside. The Upper Tribunal remade the decision, substituting it with a determination that the appellant's evidence of rent-free accommodation and the mother's benefits-based household support satisfied the dependency requirement under the Immigration Acts.
Remedies
- The appeal is allowed and the decision is remade, substituting the First-tier Tribunal's decision with one that allows the appellant's appeal based on established dependency.
- The decision of the First-tier Tribunal dismissing the appellant's appeal on dependency grounds has been set aside due to an error of law.
Legal Principles
The Upper Tribunal held that the First-tier Tribunal erred in law by incorrectly assessing the burden of proof regarding the appellant's dependency. The Judge in the First-tier Tribunal focused on the appellant's hypothetical ability to afford rent contributions rather than evaluating whether she actually depended on her mother for essential living needs, including accommodation. The correct legal principle requires the sponsor (EEA national) to provide direct financial support for the applicant's essential needs, and the applicant must demonstrate this dependency through evidence, not speculative affordability.
Cited Statute
Immigration Acts
Judge Name
- Upper Tribunal Judge Lindsley
- The Hon. Mr Justice Andrew Baker
Passage Text
- 2. We therefore set aside that decision. 3. This appeal is therefore allowed and we re-make the decision of the First-tier Tribunal, substituting for it a decision allowing the appellant's appeal.
- We agree with Mr Slatter that, in substance, the Judge asked and answered the wrong question, namely whether the appellant, if required, could afford a modest contribution towards her mother's rental costs. Finding that she could do so, and cover her other essential needs, from her earned income, was erroneously treated as negativing dependency.
- In the appellant's Grounds, it was argued that the Judge should have treated the appellant as responsible for 50% of the rent, since she and her mother were the only adults in the household, the others being her mother's minor children. No detailed calculation is needed to see that the appellant could not afford £1,050 per month in rent, let alone that amount in rent plus utilities and other essentials. Therefore, the conclusion that the appellant had not proved her dependency was flawed by an incorrect treatment of accommodation costs.