EEA National present dependency
Posted: Sun Aug 23, 2015 2:34 am
Hi,
Just got confused regarding the EEA national dependency requirement. So far I knew it should be past dependency and it has to be anywhere other than the UK. But in a case law (
Reyes (EEA Regs: dependency) [2013] UKUT 314 (IAC)) I read it can be present dependency. I quote from the case itself:
''19. From the above, we glean four key things. First, the test of dependency is a purely factual test. Second, the Court envisages that questions of dependency must not be reduced to a bare calculation of financial dependency but should be construed broadly to involve a holistic examination of a number of factors, including financial, physical and social conditions, so as to establish whether there is dependence that is genuine. The essential focus has to be on the nature of the relationship concerned and on whether it is one characterised by a situation of dependence based on an examination of all the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family. It seems to us that the need for a wide-ranging fact-specific approach is indeed enjoined by the Court of Appeal in SM (India): see in particular Sullivan LJ’s observations at [27]-[28]. Third, it is clear from the wording of both Article 2.2 and regulation 7(1) that the test is one of present, not past dependency. Both provisions employ the present tense (Article 2.2(b) and (c) refer to family members who “are dependants” or who are “dependent”; regulation 7(c) refers to “dependent direct relatives…”). Fourth (and this may have relevance to what is understood by present dependency), interpretation of the meaning of the term must be such as not to deprive that provision of its effectiveness.
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33. As already noted, the test of dependency as found in regulation 7 (and also in regulation
is expressed in the present tense: see [19] above. As a result the appellant would only have been entitled to succeed in his application to the respondent if he had been able to show on the basis of evidence produced to the respondent that he was dependent as at the date of decision.''
Now is it okay if someone shows his dependency as started within the UK; not in some other country. Will he be successful for merely showing a dependency here in the UK?
If someone can also explain this caselaw and response of Home Office to this decision at the Upper Tribunal.
It will be helpful if someone can explain the matter with authority.
Regards
Masud
Just got confused regarding the EEA national dependency requirement. So far I knew it should be past dependency and it has to be anywhere other than the UK. But in a case law (
Reyes (EEA Regs: dependency) [2013] UKUT 314 (IAC)) I read it can be present dependency. I quote from the case itself:
''19. From the above, we glean four key things. First, the test of dependency is a purely factual test. Second, the Court envisages that questions of dependency must not be reduced to a bare calculation of financial dependency but should be construed broadly to involve a holistic examination of a number of factors, including financial, physical and social conditions, so as to establish whether there is dependence that is genuine. The essential focus has to be on the nature of the relationship concerned and on whether it is one characterised by a situation of dependence based on an examination of all the factual circumstances, bearing in mind the underlying objective of maintaining the unity of the family. It seems to us that the need for a wide-ranging fact-specific approach is indeed enjoined by the Court of Appeal in SM (India): see in particular Sullivan LJ’s observations at [27]-[28]. Third, it is clear from the wording of both Article 2.2 and regulation 7(1) that the test is one of present, not past dependency. Both provisions employ the present tense (Article 2.2(b) and (c) refer to family members who “are dependants” or who are “dependent”; regulation 7(c) refers to “dependent direct relatives…”). Fourth (and this may have relevance to what is understood by present dependency), interpretation of the meaning of the term must be such as not to deprive that provision of its effectiveness.
……………………………………………………………………………………………………….
33. As already noted, the test of dependency as found in regulation 7 (and also in regulation
is expressed in the present tense: see [19] above. As a result the appellant would only have been entitled to succeed in his application to the respondent if he had been able to show on the basis of evidence produced to the respondent that he was dependent as at the date of decision.''Now is it okay if someone shows his dependency as started within the UK; not in some other country. Will he be successful for merely showing a dependency here in the UK?
If someone can also explain this caselaw and response of Home Office to this decision at the Upper Tribunal.
It will be helpful if someone can explain the matter with authority.
Regards
Masud