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© Pathfynder Limited 2017. Pathfynder Solicitors is a trading name of Pathfynder Limited, a company registered in England and Wales with company registration number 10170947. The registered address is King House, 5-11 Westbourne Grove, London, W2 4UA. Authorised and regulated by the Solicitors Regulation Authority, SRA No. 629672.




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EEA dependant visasRegulation 7 of the Immigration (European Economic Area) Regulations 2006 (the ‘EEA Regulations’) permits certain dependent family members of EEA nationals to reside in the UK, provided the EEA national is exercising Treaty Rights.

What is meant by ‘dependent’ however has not always been clear. The EEA Regulations do not define the term and as such we must look to case law for guidance.

Recently, the case of Lim v Entry Clearance Officer Manilla [2015] EWCA Civ 1383 brought further clarity to the matter.

The Court of Appeal considered Lim’s case and found as follows:

Appeal History

Lim won in the First Tier Tribunal and Upper Tribunal. The case then proceeded to the Court of Appeal.

Case facts

Lim was a Malaysian citizen, aged 60. She sought entry clearance as a family member of an EEA national, namely her Finnish son-in-law.

Lim had her own home in Malaysia, valued at £80,000, which she owned in her sole name free of any mortgage. She lived with her mother and ten year old grandchild, for whom she was the guardian. She formerly worked as a laboratory analyst and had money in an Employee’s Provident Fund, a compulsory savings and retirement plan for private sector workers in Malaysia. In February 2012 this was worth in excess of £55,000. She could withdraw this sum in full at any time. She also had a small amount of savings of approximately £1,650.

Following her retirement, her living expenses were £150 to £200 per month. Since early 2012, the daughter married to the Finnish son-in-law had been sending her remittances of £450 per quarter. She used this to meet her expenses and as such did not have to draw on her capital. She could have met her essential needs by drawing on her retirement savings for at least 10, possibly 20 years but she did not wish to draw upon that fund because she wanted to pass it on as an inheritance to her children and grandchildren.

Court’s reasoning

In cases concerning dependants in the ascending line of EEA nationals (at para 32, per Lord Justice Elias):

‘…the critical question is whether the claimant is in fact in a position to support himself, and Reyes now makes that clear beyond doubt, in my view. That is a simple matter of fact. If he can support himself, there is no dependency, even if he is given financial material support by the EU citizen. Those additional resources are not necessary to enable him to meet his basic needs. If, on the other hand, he cannot support himself from his own resources, the court will not ask why that is the case, save perhaps where there is an abuse of rights. The fact that he chooses not to get a job and become self-supporting is irrelevant. It follows that on the facts of this case, there was no dependency. The appellant had the funds to support herself. She was financially independent and did not need the additional resources for the purpose of meeting her basic needs.’

Decision

The Court concluded that Lim was not a dependent family member.

It is interesting to see the Court distinguish between dependency by choice and dependency as a matter of fact. Dependency by choice clearly will not suffice but the Court may have missed an opportunity to provide further guidance on dependency as a matter of fact as it is not always clear which side an applicant falls on.

In this case, Lim had intended to pass on her lifetime savings to her children and grandchildren by way of an inheritance, thereby retaining her savings during her lifetime. This, the Court found, made her dependent by choice.

If Lim had drawn down her retirement savings, sold her house and made an inter vivos gift of the cumulative amount, as an alternative method of passing her wealth down to her children and grandchildren, would this have made her dependent as a matter of fact? Similarly, what would the position be if Lim had disposed of her assets in some other way, for example by making a donation to charity or by spending the money in some other way?

We look forward to receiving further guidance from the Court on these points.


Written by Shahjahan Ali

Please note that this article is for information only and should not be taken as legal and/or financial advice. Immigration law changes regularly and it may be the case that this page has not been updated to take into account the latest changes. If you would like advice on your personal circumstances, please feel free to contact us.

Dependent family members of EEA nationals - 10 Oct 2016