Tanveer Hasan Tipu v Secretary of State for The Home Department [2025] EWCA Civ 215

[2025] EWCA Civ 215Case No CA-2023-002548
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL (IAC)
UPPER TRIBUNAL JUDGE LINDSLEY
UT-2023-000525
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 05/03/2025
Before
LORD JUSTICE BEANLADY JUSTICE ANDREWSLADY JUSTICE FALK
Between
TANVEER HASAN TIPUAppellantSECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Zane Malik KC&Asad Maqsood (instructed by Wildan Legal Solicitors) for AppellantAndrew Byass (instructed by Government Legal Department) for RespondentHearing Hearing date: 27 February 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]The Appellant is a citizen of Bangladesh born on 1 March 1986. He arrived in the UK in March 2010 with a Tier 4 student visa which he extended until September 2016. At this point he overstayed his leave to remain in the UK. The present case concerns an application for an EEA residence card which he made on 27 November 2019 as an extended family member of his cousin Mr Md Salim Ahmed. This was refused in a letter from the Home Office dated 30 November 2020. An appeal against this decision was dismissed by First-tier Tribunal Judge Gaskell after a hearing on 23 November 2022.[2]The Appellant was granted permission to appeal to the Upper Tribunal. An error of law hearing took place before UTJ Lindsley, who in a decision issued on 23 June 2023 found that the FTT decision had indeed involved the making of an error on a point of law. She set aside the FTT decision and adjourned the remaking of the appeal. She held the substantive hearing on 12 September 2023 and by a reserved decision issued on 1 October 2023 dismissed Mr Tipu’s appeal from the Home Secretary’s decision. It was not suggested by either party before us that we should examine the FTT decision or the error of law found by Judge Lindsley at the previous hearing.[3]There is no challenge to the findings of primary fact made by the judge. What follows is a summary of what appear to me to be the most significant evidence and findings.

The evidence of the Appellant and his sponsor as set out by the judge

[4]Mr Tipu is the first cousin of his sponsor Mr Salim Ahmed, and was supported by his sponsor whilst living in Bangladesh prior to coming to the UK: this is evidenced by money transfer documentation from Western Union. The sponsor chose to do this as Mr Tipu was a “good and dedicated student” and his parents could not afford to support him continuing in education as they were very poor. Mr Salim Ahmed sent money from Portugal, where he was working. The money paid for education related costs which included the school fees, uniforms, books, stationery, travel costs, and tutoring fees. The Appellant continued his education, completing his secondary education and starting university in Bangladesh. It is his understanding that Mr Salim Ahmed became a Portuguese citizen in 2000 (thereby becoming a dual national of Bangladesh and Portugal).[5]After the Appellant started university in Bangladesh it was an option to travel abroad. He applied firstly for a working holiday maker visa to come to the UK in 2008 but this was refused. His sponsor visited the UK in 2009 and suggested that he should get a student visa for the UK, and said that he (the sponsor) intended to relocate there. The Appellant gave the address of his uncle, Mr Fuhad Ahmed, as the address for this application as Mr Fuhad Ahmed lived in the UK and it was agreed between them that he could do this: Mr Salim Ahmed was at that stage still in Portugal. The Appellant then applied to come to the UK as a student, and as already noted his entry clearance was granted in 2010.[6]The Appellant's evidence was that when he came to the UK for the first year Mr Salim Ahmed still sent him money for his education and other expenses such as travel, books, clothing and some food, the sums sent being about £250 every two to three months. Mr Fuhad Ahmed provided accommodation, paid the house bills and paid for some food.[7]The Appellant's evidence was that Mr Salim Ahmed also paid for his studies at the four colleges (London College of Accountancy, London North College, IMO Bedford College and Universal College) which he attended between 2010 and 2014. He accepted that he did not obtain any qualifications from these studies as the colleges all had their licences revoked and in the end he gave up trying to study. The Appellant gave no explanation for what he has done in the UK since 2014.[8]After Mr Salim Ahmed moved to the UK in March 2011 the Appellant 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. The college fees were about £2000 per annum. In short, he has covered much of the Appellant's expenses since Mr Tipu was 14 years old.[9]The judge accepted that the Appellant had shown on the balance of probabilities that he lived with Mr Salim Ahmed from the time of the latter’s entry to the UK in March 2011. She also found that the evidence of the witnesses called by the Appellant was credible “on the core aspects of the place of residence of the Appellant and the provision of financial support to the Appellant by Mr Salim Ahmed”. She noted, however, that there was no evidence of any significance called on what the Appellant had actually been doing since he stopped studying in 2014 and indeed “during significant periods of time from 2011-2014 when his colleges were closed down by way of withdrawal of their licences.” The evidence was that he had obtained no qualifications in the UK.

Conclusions reached by the judge

The judge held as follows:

[10]- “27. As per Sohrab [Sohrab (continued household membership) Pakistan [2022] UKUT 00157 (IAC)] a person seeking recognition as an "extended family member" ("EFM") under regulation 8(2) of the Immigration (European Economic Area) Regulations 2016 must establish a relevant connection with their EEA sponsor in the country of origin, and in the UK. The relevant connection may be through being a dependent of the EEA national sponsor, or through being a member of the EEA national's household. The relevant connection may change between the country of origin and the UK, as held in Dauhoo (EEA Regulations - reg 8(2)) [2012] UKUT 79 (IAC). There must not be a break in dependence or household membership from the country of origin to the UK, other than a de minimis interruption. As per Jia v Migrationsverket [2007] CJEU Case C-1/05 the test for dependency is whether the sponsor has and does provide material support for the appellant's essential living needs. The Court of Appeal in Singh [Singh v Secretary of State for the Home Department [2022] EWCA Civ 1054 [2022] Imm AR 1630] did not determine on the facts of that case whether education was an essential need, as that issue had not been raised before the First-Tier Tribunal, but found that it was in principle capable of being an essential need. It was indicated that it would need a wide ranging examination to determine whether education amounted to an essential living need in any particular case. ...29. My first task is to consider whether the appellant was a dependent on the sponsor prior to entering the UK and for the first year whilst he lived in this country. It is not argued that he was part of the sponsor's household during this time. I find, based on credible witness evidence before me and some documentary receipts from Western Union, that from the year 2000 to 2011 the sponsor, Mr Salim Ahmed provided funds to the appellant which were to enable him to continue in education. I find that the appellant's family were very poor and otherwise the appellant would have had to leave school at the age of 14 years and start working on the land like his parents. Whilst Mr Mazunder [counsel then instructed by the Appellant] tried to persuade me that Mr Salim Ahmed had paid for primary education I do not find that this was the case. I find that it was at the point of the commencement of his secondary education that he paid for the appellant to continue, as this was point where he might otherwise have been permitted to stop his education. Mr Salim Ahmed wanted this bright child to have a better future, and so, I find, took responsibility for funding his education at private secondary schools with all the costs that entailed which included school fees, cost of materials such as books and paper, travel costs and uniform costs. He did not need to pay for accommodation costs or for food when the appellant lived with his parents in Bangladesh as they could provide these things. I find that when the appellant moved to the UK between March 2010 and March 2011 the sponsor also did not need to pay accommodation costs and bills as these were paid by Mr Fuhad Ahmed, the appellant's uncle. I find that the sponsor only paid a minimal amount for the appellant's food during this time (through occasional shopping out of support funds sent), and [the] majority was paid for by Mr Fuhad Ahmad.30. The question arises as to whether this financial provision for education for the appellant by Mr Salim Ahmed was for an essential living need. I was not given any considered help by the representatives on this issue. No reference was made to any framework in which I should consider whether the education provided was an essential living need. I note that Article 28 of the Convention on the Rights of the Child recognises a child's right to education. Article 26 of the Universal Declaration of Human Rights gives a right to education which should be free in the elementary and fundamental stages. Article 13 of The International Covenant on Economic, Social and Cultural Rights recognises a right to free primary education. Article 2 of Protocol No.1 to the European Convention on Human Rights concerns the right to education.31. I conclude given the weight given in international law to the right for a child to access education and the context of the evidence before me, namely the very poor living chances that the appellant would have had aged 14 years given his parents' difficulty making a living from their subsistence farming, that an education beyond the primary stage, which would enable him to have a more than hand to mouth existence reliant on the charity of wider family, should be seen as having been an essential living need when it was first funded in the year 2000. The appellant did not have an option, such as some might have had from wealthier backgrounds of entering a family business or being sponsored via an apprenticeship in a trade or profession, or other option where he could have adequate provide a future for himself beyond near abject poverty [sic] without at least a basic secondary education.32. However I cannot find that the appellant's education continued to [be] essential after the completion of the secondary stage and at the point when the appellant ceased to be a child and became an adult. I was not provided with any proper time line by the appellant or his representatives setting out his Bangladeshi education, but the evidence was that prior to his coming to the UK the appellant had entered university in Bangladesh and that he had a sufficient level of English to apply for international studies. Once in the UK he was accepted on courses to complete a graduate diploma in business management, an extended diploma in business and administrative management and the ACCA chartered accountants' examinations from the documents before me. I find that the appellant had passed the point when his essential living needs included education whilst in Bangladesh, at least at the point when he entered university education. I find that at this point his education ceased to be an essential living need. I find that education was clearly not an essential living need for the appellant in 2008 when he applied to the UK for entry clearance to come to this country as a working holiday maker. At this point in time I find he had, in his own estimation, sufficient educational skills to travel and work internationally. I find therefore that funds sent/provided by Mr Salim Ahmed for the appellant's education from 2008 to 2014 cannot be classed as making him a dependent, as they were not a material contribution to the appellant's essential living needs.33. I find that the appellant has been a member of his cousin and sponsor, Mr Salim Ahmed's, household since 2011 when he entered the UK from Portugal and when they started to share the house at Elgar Close. The problem for the appellant is, however, that there is a very significant gap between the time when he was a dependent on Mr Salim Ahmed for his essential living needs, which, as set out above, in this case consisted of the provision of essential education between 2000 and 2008, and the point when he became a member of his household in 2011. This is a gap of three years. As set out in Sohrab , which in turn relied upon the decision of the Court of Appeal in Chowdhury v SSHD [2021] EWCA Civ 1220, it is only permissible for there to be a de minimis interruption in the dependency or household membership.34. As there should be a stable and continuous state of dependency or household membership and not an intermittent one separated in time I find that the appellant cannot meet the test as set out in retained EEA law from Regulation 8 of the Immigration (EEA) Regulations 2016 as there was no state of dependency or household membership by the appellant on his sponsor, Mr Salim Ahmed, between 2008 and 2011.”

Permission to appeal to this court

[11]The Appellant applied for permission to appeal on two grounds:- “1. The Upper Tribunal erred in law in holding that the Appellant was not dependent on the sponsor from 2008-2011 and, in particular, proceeding on the basis that funding for education during that period was not a material contribution to his essential living needs. 2. The Upper Tribunal erred in law in holding that the Appellant who, on its findings was dependant on the sponsor until 2008 and a member of his household from 2011 does not qualify as an extended family member because of that gap.”[12]By an order made on 29 May 2024 Nugee LJ granted permission to appeal, but wrote:- “I have real doubts whether there is any error of law in the UT’s well-reasoned decision, but I accept that the Appellant’s two grounds raise arguable points with a real prospect of success. I also accept they each raise an important point of principle, namely:(i) whether dependency can be shown by establishing financial support for tertiary education and(ii) whether a gap of three years between a sponsor meeting essential needs and an applicant living in a sponsor’s household defeats a claim where the sponsor is in fact supporting the applicant throughout.”

The 2016 Regulations

[13]EU Directive 2004/38/EC, often referred to as the Citizens’ Directive, was issued to facilitate freedom of movement within the European Union. Article 2, defining what are usually called “direct” family members, is not relevant to this case. Article 3, headed “Beneficiaries”, creates certain rights for other family members of EU citizens who are “dependants or members of the household” of a Union citizen with the primary right of residence in a Member State.[14]The Immigration (European Economic Area) Regulations 2016 (SI 2016 No. 1052) gave effect to the 2004 Directive in English law. Regulation 8 confers rights on “an extended family member”, defined as a person who satisfies one of a number of conditions. The relevant condition for present purposes is that set out in Regulation 8(2), namely that the person is a relative of an EEA national; is residing in a country other than the UK; is “dependent on the EEA national or is a member of the EEA national’s household”; and either:
“(i) is accompanying the EEA national to the United Kingdom or wants to join the EEA national in the United Kingdom; or (ii) has joined the EEA national in the United Kingdom and continues to be dependent on the EEA national or to be a member of the EEA national’s household.”
[15]The term “dependency” was also used in Council Directive 73/148, the predecessor of the 2004 Directive. It was authoritatively construed by the Court of Justice of the European Communities (as it then was) in Jiav Migrationsverket [2007] QB 545. The Court held that to be “dependent” on a Community national, family members had to “need the material support of that Community national or his or her spouse in order to meet their essential needs” in the state of origin of those family members or the state from which they have come when they apply to join the Community national. The test of needing the sponsor’s “material support in order to meet essential needs” remains the authoritative interpretation of the word “dependent” in the Regulations, as is common ground between Mr Malik KC for the Appellant and Mr Byass for the Home Secretary. The applicability of the 2016 Regulations to this case is not affected by the UK’s withdrawal from the European Union.[16]The judge found, and it is not challenged, that from 2011 onwards the Appellant in this case was a member of the sponsor’s household. The judge also found, and again this is undisputed, that the Appellant was dependent on the sponsor within the Jia definition while attending primary and then secondary school in Bangladesh. It is not clear when he left school; but there are clear findings that by 2008, when he was aged 22, he had already started a university course in Bangladesh. It is also not in dispute that an extended family member may move from being a dependant of the sponsor to being a member of the sponsor’s household or vice versa without losing his status as an extended family member, as held by UTJ Storey in Dauhoo [2012] UKUT 79 (IAC). So the critical question, as the judge held, is whether the Appellant was dependent on the sponsor, in the Jia sense, between 2008 and 2011.

Ground 1: Essential living needs

[17]Mr Malik submitted that it was desirable that this court should give authoritative guidance on what are or are not essential living needs. He submitted that food, shelter and clothing are always essential living needs. So far as education is concerned he suggested that there should be three categories. Category 1 would be the cost of attending school, which (where it has to be paid for) should always be regarded as an essential living need. Category 2 would be where the pupil leaves school and goes on immediately to university or other tertiary education without taking any break and before beginning a working career. This too, he argued, should be regarded as an essential living need. Category 3, which he conceded would be more difficult, was where the individual leaves school, begins a career and then returns later to university or other tertiary education. He submitted that the judge erred in drawing a bright line between secondary education and university.[18]Mr Byass did not dispute that education can in principle constitute an essential living need. He did not argue that in no circumstances can tertiary education ever qualify. He simply argued that the judge was well entitled to find that the cost of tertiary education on the facts of this case (at any rate from 2008 onwards) was not an essential living need.[19]In SM (India) v Entry Clearance Officer (Mumbai) [2009] EWCA Civ 1426 at [28] Sullivan LJ said:- “In reality, people's circumstances, their lives and their lifestyles are not always quite so straightforward, and any attempt to draw a bright line between determining whether an applicant has a need for material support to meet his "essential needs" and where there is recourse to support, it being unnecessary to determine the reasons for that recourse, is best considered not on the basis of hypothetical examples but on a case-by-case basis, with the benefit of clear and sufficient factual findings by the AIT.”[20]With respect to Mr Malik, I consider that his request to us to lay down categories of what education is or is not an essential living need is misconceived. Whether the cost of a particular individual’s education is an essential living need is a question of fact, not of law. Suppose, for example, a boy or girl is attending school in a jurisdiction where (for a child of the relevant age) such attendance is compulsory and free. In the evenings or at weekends the child receives private tutoring which is paid for by the sponsor. It would be difficult to say that as a matter of law such tutoring will always be an essential living need. 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. As Sullivan LJ said in SM (India), these issues should be considered on a case-by-case basis with the benefit of clear and sufficient factual findings by the tribunal.[21]In the present case, Judge Lindsley was not saying that the age of 18 is a cut off point; nor that there are no circumstances in which tertiary education can qualify. What she was saying was that by 2008 the Appellant was 22 years old, had started a university course in Bangladesh and had applied to the Home Office for a visa to enter the UK as a working holiday maker. On those facts, the judge was clearly right to find that in paying his college fees in Bangladesh in the period from 2008-2010, or in the UK in 2010-2011, the sponsor was not meeting the Appellant’s essential living needs.[22]Mr Malik sought to rely on the decision of this court in Lim v Entry Clearance Officer, Manila [2015] EWCA Civ 1383. At [32] Elias LJ said:- “In my judgment the critical question is whether the claimant is in fact in a position to support himself or not. ... 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.” This does not give any support to the Appellant in the present case.[23]I would therefore reject the first ground of appeal.

Ground 2: Interruption

[24]Mr Malik’s fallback argument is to argue that any reduction in dependency between 2008 and 2011 did not affect the Appellant’s status as an extended family member of the sponsor. He argues that the purpose of the Directive and the Regulations is to confer rights on extended family members who have a genuine and stable family relationship with the sponsor who is an EU citizen. He relies on the CJEU judgment in Secretary of State for the Home Department v Rahman [2013] QB 249, in which the court said at [32] that the objective of Article 3 of the 2004 Directive is “maintain the unity of the family in a broader sense” by:- “facilitating entry and residence for persons who are not included in the definition of family member of a Union Citizen contained in Article 2(2) of Directive 2004/38 but who nevertheless maintain close and stable family ties with a Union Citizen on account of specific factual circumstances, such as economic dependence, being a member of the household or serious health grounds.”[25]I do not consider that this assists Mr Malik’s case. In Rahman itself the court went on to emphasise at [38] and [40] of its judgment that member states have a discretion to lay down in their domestic legislation particular requirements as to the nature and duration of dependence, providing that those requirements are consistent with the normal meaning of the words relating to the dependency referred to in the Directive. That plainly means that in a dependency case it is not enough to show that there are close and stable family ties between the EU citizen and the applicant for a residence card. There must be economic dependency in the Jia sense, that is to say the provision of material support which is required to meet the applicant’s essential living needs, and this state of affairs must be continuous, not intermittent.[26]If there had previously been any doubt about this it was made clear beyond argument by the decision of this court in Chowdhury v Secretary of State for the Home Department [2021] EWCA Civ 1220; [2021] 1 WLR 5544. Macur LJ, with whom Stuart-Smith LJ and Sir Stephen Richards agreed, held that the object of the 2004 Directive was to enable free movement rather than family reunification and the jurisprudence of the Luxembourg court did not support the possibility of intermittent dependence. 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”. Referring to para [32] of Rahman, Macur LJ said she did not interpret it as engaging the possibility of an intermittent dependency. She also emphasised that EU law clearly recognises that emotional familial ties will not suffice.[27]Mr Malik valiantly sought to distinguish Chowdhury on the basis that in that case, during a gap of approximately three years, the sponsor was not supporting the applicant at all, whereas in the present case Mr Salim Ahmed was paying college fees in Bangladesh from 2008-2010 and possibly not only college fees but additional small sums in the UK from 2010-2011. But this attempt to distinguish Chowdhury is unsustainable. What must continue without more than de minimis interruption is dependency in the Jia sense, that is to say, the receipt of material support required to meet the recipient’s essential living needs.[28]That interpretation of Chowdhury is the same one as was reached by a Presidential panel of the Upper Tribunal (Immigration and Asylum Chamber) in Sohrab (continued household membership) Pakistan [2022] UKUT 00157 (IAC). In that case, moreover, one appellant had a 10 month break in household membership and the other a 7 month break. The Upper Tribunal held that: “The required stability of household membership was absent at the relevant times. The duration of the break was clearly more than de minimis”.[29]Mr Malik drew our attention to findings made by the judge about support provided by the sponsor in 2010-11, by which time the Appellant was in London. This included not only college fees but money for travel, books and some food (though most food was provided by Mr Fuhad Ahmed). I do not consider that these payments make any difference to the analysis; and, even if they did, the Appellant’s case on continuous dependency would still be defeated by the gap of two years from 2008 to 2010 during which the sponsor was only paying for his university fees in Bangladesh.[30]In the result, ground 2 also fails.

Conclusion

[31]I do not consider that there was any error in the clear and careful judgment of UTJ Lindsley. I would therefore dismiss the appeal.[32]I agree.[33]I also agree.