Reading judgments from the Upper Tribunal on the EEA Regulations often feels like going back in time. A lot of the recent case law has clarified points of law in favour of migrants but almost all have come far too late to be useful.
The latest case of Chowdhury (Extended family members: dependency)  UKUT 188 (IAC) gives us the worst of both worlds. It comes to us years later than it should have and has the scope to dramatically restrict the ability of extended family members to qualify for EU settled status. In this case, the Upper Tribunal has confirmed that extended family members need to show there has not been a break in their dependency on their EU citizen sponsor.
Background: extended family members in EU law
A short history lesson: when the 2004 Free Movement directive came into force, it created two categories of relative who could, in effect, be sponsored by an EU citizen moving country. There were “family members” and “other family members” (also called “extended family members”). The former included spouses, civil partners, children and parents. The latter included “durable partners”, as well as more distant relatives like aunties/uncles, nephews and cousins who needed to show dependency on the EU citizen sponsor.
Both sets of people had rights under EU free movement law. That was for the simple reason that if you can’t take your family with you to another member state, you’d be discouraged from exercising your free movement rights in the first place. “Family members” had pretty much unfettered access like their EU national sponsors but “other family members” had more restricted rights. A member state was only under an obligation to “facilitate entry and residence”. That, as the Upper Tribunal puts it in Chowdhury, meant that governments:
may lay down particular requirements as to the nature and duration of dependence, in order to satisfy themselves that the situation of dependence is genuine and stable.
End of history lesson.
Can dependency disappear and be resurrected?
In this case, Mr Chowdhury claimed he was dependent on his great uncle (i.e. he was an “other family member”). Under regulation 8 of the EEA Regulations, satisfying the Home Office of this required proof that “[Mr Chowdhury] has joined [his great uncle] in the United Kingdom and continues to be dependent upon him”. This case was decided under the EEA Regulations 2006, but the same wording appears in the 2016 version.
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The Home Office refused Mr Chowdhury’s application for a residence card, saying that he had provided no evidence about his dependency for a period of several years from 2011, during which time he was living in the UK.
Mr Chowdhury’s argument was that even if he stopped being dependent for a while, dependency “can be resurrected”. During that gap, he argued, a person doesn’t stop being an extended family member.
The Home Office argument, which the tribunal ultimately accepted, harked back to the underlying rationale of free movement rights for family members. Its representative pointed out that the great uncle’s free movement rights would not be undermined here because Mr Chowdhury had come to the UK on his own and was only intermittently dependent.
The tribunal agreed:
There had clearly been a break in the appellant’s dependency upon the sponsor following the appellant’s departure from Bangladesh. The ability of [the great uncle] to exercise his rights of free movement was not in any way dependent upon the ability of the appellant to remain in the UK. The appellant arrived in the UK independently… and has been able to live in the UK for several years without being a dependent of [his great uncle].
It therefore dismissed Mr Chowdhury’s appeal.
This decision is likely to have quite a damaging impact on the rights of extended family members. In effect, once you arrive in the UK, you are expected to be immediately dependent or residing with the EU citizen sponsor (even if you are on a different category of visa). That fallacy throws out so many questions:
- What would stop an extended family member from leaving the UK and entering again solely to meet the definition of joining their EU national sponsor and then becoming dependent?
- Does this mean that most other extended family members who are on a different type of visa will be prevented from applying for a residence card from within the UK? Almost all categories of visas would require evidence of having suitable accommodation and being able to maintain oneself without recourse to public funds. If, for example, a foreign national student in London was living here with his parents paying his fees, and he later decides to move in with his EU national brother, he would be prevented from applying because he would not have been able to show dependency or residence with his brother from the moment he arrived in the UK.
- What happens if an extended family member takes up a temporary job for a month and didn’t rely on family support? Would they stop qualifying? What constitutes a “break in dependency”?
And while the judgment is about the EEA Regulations, it also has implications for extended family members who are looking to apply for pre-settled or settled status. Under the rules in Appendix EU, a “dependent relative” needs to have a “relevant document” (basically a residence card or a permanent residence card). Those documents can only be issued under the EEA Regulations — so if prevented from qualifying for them, dependent relatives are essentially shoved out of the EU Settlement Scheme as well.