UI2022002299

In Lim - ECO (Manila) [2015] EWCA Civ 1383 Lord Justice Elias, with whom McCombe LJ, and Ryder LJ agreed, said, at [25], it is not enough simply to show that financial support is in fact provided by the EU citizen to a family member. The family member must need the support from his or her relatives in order to meet his or her basic needs. The correct test was set out at paragraph [32] of the decision. The critical question is whether the individual is in fact in a position to support themself. That is a simple matter of fact. If they can support themself, there is no dependency, even if he/she is given financial material support by the EU citizen. Those additional resources are not necessary to enable them to meet their basic needs .

More recently, in Latayan v SSHD [2020] EWCA Civ 191 , Jackson LJ said:

Whether the appellant is dependent on the sponsor is therefore a factual question for the judge to assess on the evidence before the Tribunal. The burden rested upon the appellant.

Judge Freer noted, as Mr Williams submits, at paragraph [28] of his decision that " ..The total combined household income and expenditure of this large family is wholly opaque..". He clearly had regard to the gas and electricity bills that were relied upon by the appellant, and was entitled to say that those bills, do not without more, show dependency. It is true as Mr Chohan submits that the bills are endorsed as having been paid in cash, but they are addressed to the appellant's father, Abdul Rashid, not the appellant. Judge Freer said at paragraph [30] that it is certainly possible, that the funds received by the appellant go, in whole or in part, for 'family support'. At paragraph [37], Judge Freer found that the appellant has no dependency for his necessities of life at all, but could be giving money to his sister or his parents or all of them. At paragraph [38], Judge Freer said:

It is clear from the authorities that it is not enough simply to show that financial support is in fact provided by the EU citizen to the family member. Families often send money to each other, even regularly, across international borders and that can be for a whole range of reasons. Here, there is a requirement of dependency to meet essential living needs, not just evidence of regular money transfers or evidence of money transfers over a prolonged period.

Although Judge Freer commented that the appellant is very probably exercising a dependency of choice, I am satisfied that that is immaterial to the outcome of the appeal. Reading the decision as a whole, it is clear Judge Freer was satisfied that there have been transfers of funds, but was not satisfied that the appellant has established that on balance, the funds are necessary to enable the appellant to meet his basic needs. His accommodation is plainly taken care of by the fact that he lives with his parents in accommodation owned by them. Beyond evidence of money transfers, even over a lengthy period, there a distinct and noticeable absence of any evidence to support the claims made by the appellant that he requires the financial support to meet his essential needs. It was the paucity of the evidence regarding the essential living needs of the appellant and how they are met that was of concern to the Judge.

A judge is not required to give reasons for their reasons. I accept a full breakdown of the expenses incurred is not required and that in a cash economy, it will very often be difficult to obtain receipts to substantiate the expenditure, but plainly some breakdown that is supported by cogent evidence to support the claim that essential living needs are met by the money transfers is capable of going a long way to discharging the burden upon an applicant that they need the material support of the Community national in order to meet their essential needs. Here, there was a very broad and vague claim set out by the appellant in paragraph [11] of his witness statement that the sponsor decided to help him financially, and thus he became dependent on the sponsor. The evidence of the sponsor was that the appellant withdraws cash to spend on food. His living expenses were said to be food, clothing and medication. I pause to note that there is no evidence that the appellant himself has any particular health issues or requires regular medication and so the costs of medication must relate to the medication required not by the appellant, but by his father. The evidence, Judge Freer found, was lacking in circumstances where several members of the same family all live together, and the funds transferred appear to have been provided by way of support for the family generally, rather than to meet the essential living needs of the appellant. Reading the decision as a whole it is clear the judge did have in mind the correct test and the evidence of the appellant.

The decision is to be read looking at the substance of the reasoning and not with a fine-tooth comb in an effort to identify errors. Reading the decision as a whole, it is in my judgement clear there was a paucity of material evidence and it cannot be said that the Judge's analysis of the evidence that was before the Tribunal is irrational or perverse. I am satisfied that Judge Freer's decision is a sufficiently reasoned decision that was open to him on the evidence.

In my judgment, the grounds of appeal do not disclose a material error of law capable of affecting the outcome of the appeal.

It follows that I dismiss the appeal.

The appeal is dismissed

July 2023