Extended family members can’t have any breaks in dependency on EU citizen sponsor

Reading judgments from the Upper Tribunal on the EEA Regulations often feels like going back in time. A lot of the recent case law has clarified points of law in favour of migrants but almost all have come far too late to be useful.

The latest case of Chowdhury (Extended family members: dependency) [2020] UKUT 188 (IAC) gives us the worst of both worlds. It comes to us years later than it should have and has the scope to dramatically restrict the ability of extended family members to qualify for EU settled status. In this case, the Upper Tribunal has confirmed that extended family members need to show there has not been a break in their dependency on their EU citizen sponsor.

In this case, Mr Chowdhury claimed he was dependent on his great uncle (i.e. he was an “other family member”). Under regulation 8 of the EEA Regulations, satisfying the Home Office of this required proof that “[Mr Chowdhury] has joined [his great uncle] in the United Kingdom and continues to be dependent upon him”. This case was decided under the EEA Regulations 2006, but the same wording appears in the 2016 version.

The Home Office refused Mr Chowdhury’s application for a residence card, saying that he had provided no evidence about his dependency for a period of several years from 2011, during which time he was living in the UK.

Mr Chowdhury’s argument was that even if he stopped being dependent for a while, dependency “can be resurrected”. During that gap, he argued, a person doesn’t stop being an extended family member.

The Home Office argument, which the tribunal ultimately accepted, harked back to the underlying rationale of free movement rights for family members. Its representative pointed out that the great uncle’s free movement rights would not be undermined here because Mr Chowdhury had come to the UK on his own and was only intermittently dependent.

The tribunal agreed:

There had clearly been a break in the appellant’s dependency upon the sponsor following the appellant’s departure from Bangladesh. The ability of [the great uncle] to exercise his rights of free movement was not in any way dependent upon the ability of the appellant to remain in the UK. The appellant arrived in the UK independently… and has been able to live in the UK for several years without being a dependent of [his great uncle].

And while the judgment is about the EEA Regulations, it also has implications for extended family members who are looking to apply for pre-settled or settled status. Under the rules in Appendix EU, a “dependent relative” needs to have a “relevant document” (basically a residence card or a permanent residence card).

Those documents can only be issued under the EEA Regulations — so if prevented from qualifying for them, dependent relatives are essentially shoved out of the EU Settlement Scheme as well.