Mr Butterworth on behalf of the Claimant made very detailed submissions. He referred me to Moneke at [41] and also to the decision in Flora May Reyas v Migrationsverket Case C-423/2012ECJ . He submitted that the First-tier Tribunal Judge had correctly directed herself in respect of the relevant case law at [21] and [22] of her decision and indeed the Judge there does refer not only to Reyas but also to Jia Case C1/05 , the judgment of the Court of Appeal in Bigia [2009] EWCA Civ 79 as well as the decision in Moneke (EEA - OFMs) Nigeria [2011] UKUT 341 (IAC) where the Tribunal expressly considered the issue of dependency in this context and confirmed that the test of dependency is whether the person needs financial support from the EEA national or his spouse in order to meet his essential needs.
Crucially at [41] the First-tier Tribunal Judge referred to the decision known as Moneke (1) which in turn referred both to the decisions of the Court of Appeal in SM (India) and the Court of Justice in Lebon [1987] ECR 2811 , and also made reference to the entry clearance instructions in force at that time, at chapter 5.12 which stated inter alia : " provided a person would not be able to meet his or her essential living needs without the financial support of the EEA national she/he should not be considered dependent on that national ". In those circumstances it does not matter that the Claimant may in addition receive financial support income from other sources.
The factual basis of this application is that the Claimant had worked whilst in the US. He found employment at a cell phone agency repairing phones in respect of which he was paid $9 an hour but his hours were not constant. Sometimes he only had six or nine hours a week, sometimes no hours at all, and therefore he only managed to meet this essential living needs with the financial assistance of his brother and sister-in-law.
The First-tier Tribunal Judge noted this evidence and she expressly found at [23] correctly in my view that:
" Dependency is a question of fact. I would consider essential needs to include food, clothing and accommodation. I would not consider gym membership, computers or an expensive mobile phone to be essential needs. For the appellant to show that he continues to be dependent he must show that he was dependent before coming to the UK, and that the support is continuing."
And at [25] she found
" On the evidence about £1200 was sent to the appellant yearly, sometimes more, sometimes less. Even reducing this by 50% to exclude Mr Powar's contribution, it is a significant amount. The frequency of remittances varied according to the appellant's needs, which suggests to me that the appellant was dependent on his brother and sister-in-law at the times when he could not meet his essential living needs. This included material help paying his rent when his hours of work were not enough to pay his rent and bills."
And as a consequence the judge went on to find at [26] that the requirements of Regulation 8(2)(a) and (c) had been met.
In light of [51] of Moneke I find that whilst the Claimant was not continuously and solely dependent upon his EEA national sister-in-law and brother immediately prior to his entrance to the United Kingdom, he was, as First-tier Tribunal Judge Phelan found, dependent upon them for his essential living needs between 2010 and 2014 to the extent that he would not have been able to manage without the money that they remitted to him.
Notice of Decision
For those reasons I find that there is no material error of law in the decision of the First-tier Tribunal Judge which I uphold. The appeal by the Secretary of State for the Home Department is accordingly dismissed.
No anonymity direction is made.
Signed Date
Deputy Upper Tribunal Judge Chapman