The Court of Appeal (CoA) was faced with the question of whether a university education could constitute an essential living need and if a three-year gap would interrupt such dependency.
Background:
Mr. Tipu is a Bangladeshi citizen who arrived in the UK in March of 2010 on a student visa. The visa was extended until September 2016. He applied for an EEA residence card in November 2019 as an extended family member of his cousin Mr Md Salim Ahmed – a Portuguese citizen since 2000.
Mr. Salim Ahmed supported Mr. Tipu while living in Bangladesh before coming to the UK through a money transfer. The transfers were intended to support Mr. Tipu in his education. Mr. Tipu completed his secondary education and started university in Bangladesh. He then came to the UK as a student in 2010. Mr. Tipu’s evidence was that for his first year in the UK, Mr. Ahmed still sent him money, about £250 every two to three months, for his education and other expenses such as travel, books, clothing and some food. Mr. Salim Ahmed also paid for Mr. Tipu’s studies at four colleges until 2014. He had also stayed with another relative, Mr. Fuhad Ahmed, who provided accommodation and some food. After Mr Salim Ahmed moved to the UK in March of 2011, the appellant had lived with him. He has covered all of the appellant's living expenses since 2011, and gave him £50 a week as pocket money throughout this period.
Mr. Tipu did not obtain any qualifications from his studies as “the colleges all had their licences revoked and, in the end, he gave up trying to study.” He also gave no explanation as to what he had done since 2014.
The application was refused in November 2020. An appeal was launched which was dismissed by the First-tier Tribunal (FTT) in November 2022. He subsequently appealed to the Upper Tribunal (UT) and, although the UT found that the FTT had made an error on a point of law, it ultimately dismissed the appeal.
Decision:
The Court first analysed the essential living needs and then addressed the interruption in support. The Court rejected the argument that education was an essential living need, as it is a question of facts and not law, as held in SM (India) v Entry Clearance Officer (Mumbai) [2009]. Lord Justice Bean noted, “It is certainly not obvious to me that the cost of university will always be an essential living need, whether or not the university course follows immediately on the completion of secondary education.”
Regarding dependency within the context of the Immigration (European Economic Area) Regulations 2016, the Court noted that the Court of Justice of the European Communities in Jia that a dependent has to “need the material support of that Community national or his or her spouse in order to meet their essential needs.”
The Court also rejected the argument that any reduction in dependency between 2008 and 2011 did not affect Mr. Tipu’s status. The Court of Justice of the European Union has made it clear that the dependency “must be continuous, not intermittent.” In Chowdhury v Secretary of State for the Home Department [2021], the CoA made it clear that “the phrase ‘and continues to be..’ in Regulation 8(2)(b)(ii) of the 2016 Regulations refers to a "persisting state of affairs". The adjective "stable" denotes a "durable condition or state of affairs, not an intermittent one separated by a period of time other than could reasonably be adjudicated to be ¬de minimis.” The continuous dependency was defeated by the two-year gap, from 2008 to 2010, a period during which Mr. Salim Ahmed, only paid for the university fees in Bangladesh.
Implications:
This case provides a detailed analysis of what constitutes dependency under the Immigration (European Economic Area) Regulations 2016. Based on established case law, financial support covering education fees could result in dependency, but it is based on the facts of the case rather than the law. There is also a perceived difference between dependency in childhood and adulthood.
Moreover, the dependency must be continuous. Despite the sponsor paying university fees, it was not sufficient. A three-year gap was considered sufficient to break continuity and, therefore, the applicant did not qualify as an extended family member.
