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Dependency under EU law: education as an essential living need
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In the recent case of Singh v Secretary of State for the Home Department  EWCA Civ 1054;  7 WLUK 328, the Court of Appeal turned its attention back to the EU law concept of “dependency”. The appeal was brought by an extended family member of an EEA national when the Secretary of State’s refused to issue him with a residence card under the Immigration (European Economic Area) Regulations 2016. The case turned on the First-tier Tribunal’s approach to the financial support the sponsor (the EEA national) had provided towards the appellant’s education.
The facts of the case are straightforward. The appellant Mr Singh, an Indian national, came to the United Kingdom in June 2012 having been granted leave to enter as a Tier 4 general student. After the expiry of his immigration permission he made five unsuccessful applications for a residence card on the basis that he was dependent on his uncle, and should consequently be considered an extended family member under the rules. The most recent of these applications and the subsequent appeals was considered by the Court of Appeal in this case.
The First-tier Tribunal dismissed Mr Singh’s appeal. It found that he was not dependent on his uncle before moving to the UK in July 2012 as he had sufficient alternative income available so that he was not in need of his uncle’s financial support to cover his essential living needs. The case progressed to the Upper Tribunal and then the Court of Appeal because of one short sentence in the First-tier Tribunal’s judgment. In this sentence the tribunal recognised that Mr Singh had received some financial support from his uncle which was used towards his education, but categorised this as an “additional benefit”. It was incapable of founding a relationship of dependency between Mr Singh and his uncle.
The case eventually reached the Court of Appeal on the following two questions of general principle:
- whether or not education is an essential need for the purpose of dependency; and
- whether or not a “global” or “singular” approach is to be applied when assessing dependency.
Interestingly, neither of these became the true issue before the Court of Appeal as the parties and the court were agreed on the correct approach to both questions (more on this below). Rather, the issue was whether the First-tier Tribunal had erred in law in its assessment of the support provided by Mr Singh’s uncle towards his education.
Education as an essential living need
The Court of Appeal agreed with the parties that education can be – but not necessarily always is – an essential living need. A fact-sensitive analysis is required
Mr Singh’s appeal ultimately failed before the Court of Appeal, not because education could not have constituted an essential living need, but because this had not been argued by Mr Singh before the First-tier Tribunal. The focus of Mr Singh’s evidence and his representative’s submissions had been that the support provided by his uncle went towards his food and accommodation which the Tribunal rejected. There has been no submission before the First-tier Tribunal that his education constituted an essential living need. In these circumstances, the tribunal was entitled to find that this support was irrelevant for the question of dependency.
The approach: singular vs global
The hearing before the Upper Tribunal involved a discussion as to whether it is sufficient for a person asserting to be dependent to show that any funds received from their sponsor covered only one of their essential living needs (e.g. food, heating, accommodation or education (“the singular approach”)) or whether the funds would need to meet all of their essential living needs as a whole (“the global approach”). The Upper Tribunal held that the global approach is correct approach to adopt.
You will be relieved to hear that the Court of Appeal decided the global approach should not be followed as it was “not a helpful way of looking at the matter”. Instead, the correct approach had previously been set out in two cases.
By the CJEU in Rahman  CJEU Case 83-11, at paragraph 23:
“23. …it is incumbent upon the competent authority, when undertaking that examination of the applicant’s personal circumstances, to take account of the various factors that may be relevant in the particular case…”
And by the Court of Appeal in SM (India) v ECO (Mumbai)  EWCA Civ 1426, at paragraph 28:
“28. In reality, people’s circumstances, their lives and their lifestyles are not always quite so straightforward, and any attempt to draw a bright line between determining whether an applicant has a need for material support to meet his “essential needs” and where there is recourse to support, it being unnecessary to determine the reasons for that recourse, is best considered not on the basis of hypothetical examples but on a case-by-case basis, with the benefit of clear and sufficient factual findings by the AIT.”
The question in every case involves an analysis of all of the relevant factors. There may be scenarios where, for example, a sponsor provides support which enables an applicant to afford one essential living need and others where a sponsor is providing support which covers more than one or all of a person’s essential living needs.
This judgment is a helpful reminder of the correct legal test and approach to dependency under EU law. The question is not only whether a sponsor provides financial support but whether that support is needed to cover a person’s essential living needs. An applicant is well-advised to explain and evidence what the financial support from the sponsor is used for. Where it is less clear whether what is covered by a sponsor’s support counts as an essential living need, such as in the case of education, a detailed explanation should be provided for why it falls within this category of support. As ever, context matters. For example, it will no doubt be easier to argue that primary school fees fall within a child’s essential living needs as opposed to post-graduate education.