Automated Summary
Key Facts
The appellant, an Indian national, applied for an EEA family permit as a dependent of her sister, a French national in the UK, under Regulation 8 of the 2016 EEA Regulations. The initial appeal was dismissed by First-tier Tribunal Judge Aziz on 6 April 2022, who found insufficient evidence of dependency under Regulation 8(2). However, Upper Tribunal Judge Mandalia set aside this decision due to a material error of law, as the tribunal failed to consider Regulation 8(3), which applies to extended family members requiring personal care for serious health grounds. Based on unchallenged findings that the appellant suffers from a moderate intellectual disability and needs full-time care from her sister, the appeal was remade and allowed under Regulation 8(3).
Issues
The central issue was whether the First-tier Tribunal correctly applied Regulation 8(3) of the 2016 EEA Regulations, which defines extended family members requiring personal care due to serious health grounds. The Upper Tribunal found that the First-tier Tribunal failed to address this condition, leading to a material error of law. The appeal was ultimately allowed under Regulation 8(3) based on unchallenged findings that the appellant's intellectual disability necessitated her sister's care.
Holdings
- The Upper Tribunal remade the decision and allowed the appeal. The appellant, an Indian national, was granted an EEA family permit as an extended family member under Regulation 8(3) of the 2016 Regulations. The court concluded that her sister (the EEA sponsor) provides essential personal care due to her moderate intellectual disability and mental impairment, and no other family members in India can fulfill this role.
- The Upper Tribunal found that the First-tier Tribunal's decision was vitiated by a material error of law. The error arose because the First-tier Tribunal failed to consider the condition in Regulation 8(3) of the 2016 Regulations, which requires an extended family member to strictly require the personal care of an EEA national on serious health grounds. This omission necessitated remaking the decision.
Remedies
The appeal is allowed under the EEA Regulations 2016 as preserved by the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 (Consequential, Saving, Transitional and Transitory Provisions) (EU Exit) Regulations (SI 2020 1309), granting the appellant a family permit as an extended family member based on serious health grounds requiring personal care.
Legal Principles
The Upper Tribunal found a material error of law in the First-tier Tribunal's decision, which failed to consider Regulation 8(3) of the 2016 EEA Regulations regarding dependency on serious health grounds. The appeal was remade and allowed based on this corrected legal application.
Cited Statute
- Immigration (European Economic Area) Regulations 2016
- Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020
Judge Name
- First-tier Tribunal Judge Adio
- Upper Tribunal Judge Mandalia
- First-tier Tribunal Judge Aziz
Passage Text
- The appellant suffers from a moderate level of intellectual disability and moderate impairment in developmental functioning and socioadaptive functioning. Given her cognitive capacity, it is mandatory that she live in a supervised environment otherwise it would be detrimental for her physical and mental well-being.
- What I do find on the evidence before me is that following the appellant's husband's death in May 2020, that the appellant needed someone to look after her because of her intellectual impairment and because of a deterioration in her mental health... Her life in the United Kingdom is on hold whilst she continues to remain in India. She is not providing any financial support, because she is living with the appellant in India and acting as a carer for her.
- I am satisfied that the decision of First-tier Tribunal Judge Aziz is vitiated by a material error of law and must be set aside. As to disposal, the standard directions issued to the parties require the parties to prepare on the basis that if there is an error of law in the decision of the First-tier Tribunal, the Upper Tribunal will go on to remake the decision.