EEA dependency, Extended Family Members & Procedural Fairness

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Hi and welcome to this latest immigration law update video. In this video, I wanted to look at a new case called Abdi. This case concerns extended family members, EA dependency, and importantly procedural fairness in appeals before the First Tier Tribunal.

So, I've shared my screen. It's the case of Abdi and others v. Entry Clearance Officer [2023] EWCA Civ 1455, and it's from the 7th of December 2023 decision of the Court of Appeal, judgment given by Lord Justice Popplewell. This case concerned Somali Nationals who were brother and sister, and also there was a third appellant who was the son of one of the other appellants. The sponsor was a Dutch national, so he was the brother of the first and second appellants and the uncle of the third appellant. They'd applied for EA family permits as extended family members. They were refused on the sole question of dependency, and lots of appeals, whether they're under the old EA regulations or under the settlement scheme, often concern the sole issue of dependency.

So, this is an important case. Helpfully, Lord Justice Popplewell summarizes the meaning of dependency at paragraph four, and this is a paragraph worth citing in your representations or in your argument. He says this: "In this context, 'dependent' means that the applicant needs the material support of that EA family member to meet their essential living needs."

And you'll see at paragraph four, he cites SM India and the case of Gia. "In order to establish dependence, it is not necessary to establish that the EA family member is the sole source of funds from which the applicant meets essential living needs. The support must be material in the sense that without it, the applicant could not meet their essential needs." This is recognized in the Home Office guidance, and he cites the guidance from the time. It says this: "The applicant does not need to be dependent on the EA National to meet all or most of their essential needs. For example, an applicant is considered dependent if they received a pension which covers half of their needs and money from their EA national sponsor which covers the other half." So, helpful summary of the meaning of dependence.

They then go through the refusal letters, and the sole issue was the question of dependency. The appeal came before the First Tier Tribunal. It was a video hearing before the First Tier Tribunal by CVP Ashia. The sponsor gave evidence. There was no presenting officer, so the Home Office didn't have a representative. But Judge Bartlett, the First Tier Tribunal judge, asked the sponsor some questions. In her judgment, look at paragraph 10, Judge Bartlett found that she was not satisfied that Ashia was actually the source of the funds sent or used by the appellant. There was, therefore, and she dismissed the appeal finding that dependency was not therefore established.

And there was, therefore, an appeal to the Upper Tribunal on the basis that the First Tier Tribunal judge had acted unfairly by making these credibility points against Ashia without them being put to Ashia and without them having been relied upon by the Home Office. Because, as you'll see earlier from paragraph nine, the judge had said she taken the refusal letter as the Home Office submissions.

The hearing in the Upper Tribunal came before Upper Tribunal Judge Norton Taylor. And look at paragraph 14, while he concluded it would have been much better if the judge had raised these matters at the hearing, he found that there was no procedural unfairness. And even if there had been, it wouldn't have made a difference to the outcome. This then led, paragraph 16, to an appeal to the Court of Appeal. And I'm going to focus on ground one because this is the ground that was successful. They didn't deal with ground two. There was no need before the Court of Appeal. And that was that the Upper Tribunal had erred in finding that there would be no procedural unfairness.

Now, the Home Office submitted a respondent's notice. And the first point the Home Office made, well, there was no evidence before the EPO Tribunal of what actually happened before the First Tier in terms of a transcript, a recording, a witness statement from Council, and therefore it was not open to them to challenge what had happened on fairness grounds. In the alternative, the Home Office argued, well, in any event, the judge, it wasn't incumbent on the judge to put these doubts to the sponsor.

Paragraph 19, Lord Justice Popplewell found that the respondent's view was hopeless in terms of what had happened before the First Tier Tribunal because there would be no challenge in the Upper Tribunal as to what happened. In fact, it was conceded there would be no Rule 24 notice. Look at paragraph 20, and if the Home Office was going to challenge what had happened, they should have put this in a Rule 24 notice, and it wasn't disputed by the senior presenting officer at the hearing. Paragraph 22, there was no reason in these circumstances for Council to have produced a witness statement or for them to have obtained the transcript.

And in any event, paragraph 25, Lord Justice Popplewell says, well, there was evidence. There was the FTT decision itself, and there was also what was said by Council at the Upper Tribunal hearing. Look at paragraph 25. "That is evidence upon which the court is entitled to rely. And they rely on a case going back to 1895. It happens frequently that courts or tribunals sitting on appeal inquire as to what happened below and are told the position by Council. In the absence of any reason to question what Council says, the court can proceed on the basis of what they are told by Council in fulfillment of their professional duty." So, that's very helpful.

In any event, by the time the case had got to the Court of Appeal, the appellant had produced a transcript which supported the fact that the judge had led Council to believe that the only issue was dependency. The Court of Appeal go on then to address ground one and the fairness point, and at paragraph 28, Lord Justice Popplewell says, there is a wealth of authority on the circumstances in which a failure to raise a point at a hearing amounts to procedural unfairness, both generally and in the context of immigration cases. And at paragraphs 29-33, there is a helpful summary of the case law on procedural fairness. So, if you're challenging a decision on procedural fairness grounds, look at paragraphs 29 to 33.

Lord Justice Powell then says, applying those principles, I have little hesitation in concluding that the failure by the FTT judge to give the appellant and Ashia an opportunity to address the point on which she decided the case was unfair. It had not been raised in the refusal letters at all, so there was no reason for them to produce evidence in relation to that. The Home Office had submitted, well, this point would have been an obvious point which had to be addressed in any event by the appellants. But at paragraph 35, the Court of Appeal disagreed with that. Effectively, what was being argued by the Home Office is Ashia was a conduit for other people's money.

And there's a really helpful comment in relation to EA dependency at paragraph 35. Lord Justice Popplewell says this: "There is, to put it at the lowest, considerable doubt whether, as a matter of law, the source of the money is of any relevance to the question of dependency." So, this was not a case, paragraph 36, where it was an obvious point which had to be addressed. The Court of Appeal also reject the Home Office argument that the point that they would have made no material difference to the outcome. This was not a case where on remission, remission would be pointless because it would inevitably lead to the same result. So again, the Court of Appeal reject the Home Office argument in relation to materiality.

So, in those for those reasons, the appeal was successful on ground one, and the matter was remitted to the First Tier Tribunal. So, this is a case that is helpful in terms of procedural fairness, questions of dependency, and the source of funds in EA extended family member cases. So, do have a look further. I'll put the link below the judgment below the video. I'll put the link to the judgment. I hope it's helpful to you.

Thanks a lot.