Many thanks to the encyclopedic John O of NCADC for this information. The Court of Appeal has allowed an appeal against the reasoning of the tribunal in AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048 and has found that in European Community free movement law, dependency is a question of fact. There should be no inquiry into how or why the situation of dependency arose, as long as there is as a matter of fact a relationship of dependency.

The judgment is not yet available on BAILII (link to follow here when it does appear) but was reported in The Times, from which I think I’m probably allowed to quote:

LORD JUSTICE SULLIVAN said that the Home Secretary had rightly conceded that the Asylum and Immigration Tribunal had erred in finding, in reliance upon its decision in AP(India) and Another v Secretary of State for the Home Department ([2007] UKIAT 48) of June 13, 2007, that the Court of Justice of the European Communities in Jia v Migrationsverke (Case C-1/05) ([2007] QB 545) had cast doubt on its earlier decision in Centre public d’aide sociale de Courcelles v Lebon (Case 316/85) ([1987] ECR 2811), so that regard was now to be had to “need”.

There was nothing in the Jia case to suggest that the court was departing from the proposition in the Lebon case that, for the Citizens’ Directive at least, the test being different under certain applicable rules, the status of a dependent member of a worker’s family was the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker’s support.

It followed that the decision in AP (India) should not be followed in so far as it suggested a different notion of dependence from the Lebon test.

The cases were remitted to the tribunal.

This is yet another example of wilful tribunal conservatism being overturned again on appeal. The tribunal is remarkably consistent in getting it wrong in this area of law.