Lamenting that it was “unfortunate” that the Immigration (European Economic Area) Regulations 2006 (“the regulations”, which transpose Directive 2004/38/EC or the “Citizens Directive” into domestic law) failed to set out “what the Home Office believed the law to be” (para 48), in MR and Others (EEA extended family members) Bangladesh  UKUT 449 (IAC) the Upper Tribunal (“UT”) referred six questions to the Court of Justice of the European Union (“CJEU”). Following Advocate General Bot’s opinion of 27 March 2012 in relation to this matter, the CJEU (Grand Chamber) has recently given its ruling on 5 September 2012.
On 31 May 2006 a Bangladeshi national (Mahbur Rehman) married an Irish national (Roisin Patricia Rahman) working in Northern Ireland. Subsequently, MR, FI and MR – the brother, half-brother and nephew (referred to by the UT and hereunder as “the respondents”) of Mahbur Rehman – applied for EEA family permits to reside in the UK as Mr and Mrs Rahman’s dependants. On 27 July 2006, the Entry Clearance Officer in Bangladesh refused the applications but the respondents won on appeal and arrived in the UK.
In January 2008, the respondents applied for residence cards to confirm their right to reside in the UK but the applications were refused by the Secretary of State for the Home Department (“SSHD”) in December 2008 because she thought that the respondents had not proved that they had resided with Mrs Rahman, the relevant Union citizen, in the same EEA Member State before she came to the UK, or that they continued to be dependent on her or were members of her household in the UK. However, in April 2009 a first instance immigration judge held that the respondents were “dependants”. Thus, for the exercise of discretion, their applications had to be considered under regulation 17(4) and (5).
The SSHD sought reconsideration of the respondents’ dependency. In response, it was submitted that the respondents satisfied the terms of regulation 8(2)(a) and (c) because they were residing in an EEA state in which the EEA national also resided and continued to be dependent upon the EEA national.
Upon reconsideration the UT stayed the proceedings. At para 30, the UT confessed that national case law left it “in a state of uncertainty” and it referred the following questions to the CJEU:
1. Does Article 3(2) [beneficiaries; other family members] of Directive 2004/38/EC require a Member State to make legislative provision to facilitate entry to and or residence in a Member State to the class of other family members [described in the regulations as “extended family members”] who are not nationals of the European Union who can meet the requirements of Article 10(2) [issue of residence cards; required documents] ?
2. Can such other family member referred to in Question 1 rely on the direct applicability of Article 3(2) of Directive 2004/38/EC in the event that he cannot comply with any requirements imposed by national legislative provisions?
3. Is the class of other family members referred to in Article 3(2) and Article 10(2) of Directive 2004/38/EC limited to those who have resided in the same country as the Union national and his or her spouse, before the Union national came to the host state?
4. Must any dependency referred to in Article 3(2) of Directive 2004/38/EC on which the other family member relies to secure entry to the host state be dependency that existed shortly before the Union citizen moved to the host state?
5. Can a Member State impose particular requirements as to the nature or duration of dependency referred to in Article 3(2) of Directive 2004/38/EC by such other family member so as to prevent such dependency being contrived or unnecessary to enable a non-national to be admitted to or continue to reside in its territory?
6. Must the dependency on which the other family member relies in order to be admitted to the Member State continue for a period or indefinitely in the host state for a residence card to be issued or renewed pursuant to Article 10 of Directive 2004/38/EC and if so how should such dependency be demonstrated?
Court of Justice of the European Union
In relation to the above, the CJEU (see paras 18 – 26) considered questions 1 and 2 together and ruled that on a proper construction of Article 3(2) of Directive 2004/38/EC:
- the Member States are not required to grant every application for entry or residence submitted by family members of a Union citizen who do not fall under the definition in Article 2(2) of that directive, even if they show, in accordance with Article 10(2) thereof, that they are dependants of that citizen;
- it is, however, incumbent upon the Member States to ensure that their legislation contains criteria which enable those persons to obtain a decision on their application for entry and residence that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons;
- the Member States have a wide discretion when selecting those criteria, but the criteria must be consistent with the normal meaning of the term “facilitate” and of the words relating to dependence used in Article 3(2) and must not deprive that provision of its effectiveness; and
- every applicant is entitled to a judicial review of whether the national legislation and its application satisfy those conditions.
Likewise, examining questions 3 and 4 together (see paras 27 – 35), the CJEU took the view that:
In order to fall within the category, referred to in Article 3(2) of Directive 2004/38, of family members who are ‘dependants’ of a Union citizen, the situation of dependence must exist in the country from which the family member concerned comes, at the very least at the time when he applies to join the Union citizen on whom he is dependent.
In connection to question 5 (see paras 36 – 40), the Court found that:
On a proper construction of Article 3(2) of Directive 2004/38, the Member States may, in the exercise of their discretion, impose particular requirements relating to the nature and duration of dependence, provided that those requirements are consistent with the normal meaning of the words relating to the dependence referred to in Article 3(2)(a) of the directive and do not deprive that provision of its effectiveness.
In respect of question 6 (see paras 41 – 45), the CJEU ruled that:
The question whether issue of the residence card referred to in Article 10 of Directive 2004/38 may be conditional on the requirement that the situation of dependence for the purposes of Article 3(2)(a) of that directive has endured in the host Member State does not fall within the scope of the directive.