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SM (India) V Same

SM (India) V Same

Before Lord Justice Ward, Lord Justice Etherton and Lord Justice Sullivan

Where a person sought a right of entry and residence as a dependant of a European Union citizen, it was not a requirement to ask whether the claimed dependency arose from a need for the support of such a citizen.

The Court of Appeal so stated, inter alia, when allowing the appeals of:

(i) OQ and NQ from the dismissal by the Asylum and Immigration Tribunal on June 18, 2008, of their appeals against the refusal by an immigration judge of their appeal against an entry clearance officer’s refusal to issue EEA Family Permits; and (ii) SM from the dismissal by the same tribunal on July 23, 2007, of his appeal against a similar refusal.

The claimants, who came from India and had relatives who were EU nationals, sought entry to the United Kingdom in reliance, inter alia, upon Parliament and Council Directive 2004/38/EC (OJ April 30, 2004 L158/77), the Citizens’ Directive, article 3(2) of which provided for states to facilitate entry and residence for “any other family members … who, in the country from which they have come, are dependants of members of the household of the Union citizen having the primary right of residence…”

Mr Nazir Ahmed for OQ and NQ; Mr Zainul Jafferji for SM; Mr Robert Palmer for the Secretary of State for the Home Department.

LORD JUSTICE SULLIVAN said that the Home Secretary had rightly conceded that the Asylum and Immigration Tribunal had erred in finding, in reliance upon its decision in AP(India) and Another v Secretary of State for the Home Department ([2007] UKIAT 48) of June 13, 2007, that the Court of Justice of the European Communities in Jia v Migrationsverke (Case C-1/05) ([2007] QB 545) had cast doubt on its earlier decision in Centre public d’aide sociale de Courcelles v Lebon (Case 316/85) ([1987] ECR 2811), so that regard was now to be had to “need”.   There was nothing in the Jia case to suggest that the court was departing from the proposition in the Lebon case that, for the Citizens’ Directive at least, the test being different under certain applicable rules, the status of a dependent member of a worker’s family was the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker’s support.

It followed that the decision in AP (India) should not be followed in so far as it suggested a different notion of dependence from the Lebon test.

The cases were remitted to the tribunal.

Source: Timesonline, published on 7th December, 2009.

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