The last post had shed a little bit of light on the decision of the Court of Justice of the European Union (“CJEU”) in relation to six questions which were referred to it by the Upper Tribunal (“UT”) in MR and Ors  UKUT 449 (IAC). This post aims to expand upon the legal rationale espoused by the CJEU in making its decision. Any question related to other family members (“OFMs”, who are third country nationals) is inevitably connected to article 7 of the Charter of Fundamental Rights of the European Union (“CFR”), which like article 8 of the ECHR, provides everyone with the right to respect for his or her private and family life, home and communications. This post takes a closer look at Advocate General Bot’s opinion and the CJEU’s ruling.
The AG’s Opinion (March 2012)
In relation to the questions referred, Advocate General Bot (“the AG”) noted that the first five questions were admissible. But he thought that the sixth question was “hypothetical” (para 26, see below). For the AG, the threefold purpose of the reference was to:
(i) determine the ambit of the facilitation obligation pursuant to article 3(2) of Directive 2004/38/EC (“the Citizens Directive” or “the directive));
(ii) ascertain whether article 3(2) only covered OFMs who had resided in the same state as the Union citizen and were depending on him shortly before he moved to the host Member State; and
(iii) inquire, in fact seek clarification, as to the possibility for Member States to make the issue or renewal of a residence permit subject to conditions as to the nature or the duration of the dependency which must exist between the applicant and the Union citizen.
Moreover, case law identified four principles of interpretation. Firstly, in Tsakouridis (European citizenship)  EUECJ C-145/09 the CJEU established a rule that Union citizens cannot derive less rights from the directive than from the instruments of secondary legislation which it amends or repeals. (Thus, the Citizens Directive – which codifies and consolidates one regulation and nine directives – could not be less generous than its predecessors.)
Secondly, following Metock and Others (Area of Freedom, Security and Justice)  EUECJ C-127/08 the provisions of the Citizens Directive must be given a teleological and appropriate interpretation having regard to their objective.
Thirdly, in light of Lassal (European citizenship)  EUECJ C-162/09, provisions relating to a fundamental principle like the free movement of persons should be interpreted broadly and must not be deprived of their effectiveness. Conversely, in Kempf v Staatssecretaris van Justitie  EUECJ R-139/85, the CJEU adopted a rule that limitations on the freedom of movement should be interpreted strictly.
Fourthly, subsequent to Ziolkowski (Freedom of movement for persons)  EUECJ C-424/10 the need for a uniform application of EU law and the principle of equality exacted that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an independent and uniform interpretation throughout the Union.
The bulk of the opinion (paras 40 – 79) is devoted to responding to the first question: ascertaining (a) whether under article 3(2) of the Citizens Directive Member States were required to facilitate the entry and residence of OFMs where such persons met the requirements of article 10(2); and (b) the nature of measures required to achieve this. It was noted that Union citizens who did not work and who did not have sufficient resources to enjoy a right of residence for more than three months, under article 7, and who could claim a derived right of residence in their capacity as family members were also relevant.
Characterising the scope of article 3(2) as “relatively uncertain” and noting the importance of the provision in relation to article 2(2) which sets out persons considered to be “family members”, the AG examined two constructs of Union citizenship and rejected both these “extremist” approaches (para 50). Under the broad interpretation article 3(2) may be construed as obliging Member States to take steps to establish the existence, in principle, of an individual right of entry and residence for the Union citizen’s OFMs who are dependants or members of his household. Conversely, subject to a strict interpretation, article 3(2) may be interpreted to be a mere invitation which is not legally binding: while entry and residence was to be facilitated there were no penalties for failure to act.
The broad interpretation was unsatisfactory because Members States must facilitate entry and residence of OFMs in accordance with national legislation which meant that the said rights were a matter for Member States’ internal law: the Citizens Directive’s preamble (recital 6) confirmed this conclusion. The strict interpretation was also inadequate because the rights provided by article 3(2) were “not in the order of wishful thinking” (para 56). Rather, Member States – “whatever the extent of the latitude which they are allowed” – were bound by article 3(2).
Moreover generating a comparative perspective from the words of article 4(2) and 3 of Directive 2003/86 (under which Member States “may authorise” the entry and residence of relatives in the ascending line, of adult unmarried children, if they are unable to provide for their needs, and of the unmarried partner of the sponsor, being a national of a non-member country), at para 58 the AG thought that the words of article 3(2) of the Citizens Directive – “shall facilitate” – imposed an actual obligation on Member States to adopt the measures necessary to facilitate entry and residence for OFMs. (But “the substance and precise scope of that obligation still remain to be determined.”)
The AIRE Centre’s view – that where the requirements of article 10(2)(e) were discharged, and other requirements under national legislation remained unfilled, article 3(2) gave rise to a “presumption of entry” by virtue of which it was for the national court to decide whether the national provisions are sufficient to give full effect to the presumption – was not shared (para 63) by the AG because (i) article 3(2) did not contain a presumption but a precondition for its application; and (ii) the phrase “in accordance with its national legislation” within article 3(2) was in conflict with a direct right of entry arising from the Citizens Directive.
It was noted that Member States were, with an express reference to national legislation, allowed “enormous latitude” in discharging the facilitation obligation. “[O]nly a certain degree of harmonisation by means of a measure containing only minimum requirements” was required (para 64), and a presumption of admission was unavailable: thus, differences between Member States in relation to the conditions governing entry and residence for individuals falling under article 3(2) were allowable.
The AG, para 67, explained that Member States may not directly exclude from the facilitation measures “family members in the direct line beyond a certain degree of relationship, or even collaterals, or the partner with whom the Union citizen has a durable relationship.” Equally, the scope of the facilitation obligation could not be indirectly undermined “by laying down conditions which have the purpose or effect of excluding certain categories of beneficiaries.”
For the AG, the margin of discretion given to Member States was limited in two ways (paras 68 – 70). Firstly, the principles developed in case law culminating in McCarthy (European citizenship)  EUECJ C-434/09 the national measure in question must not result in unjustifiably impeding the exercise by the Union citizen of his right of free movement and residence. In circumstances where the Union citizen had to leave the host state or the Union altogether, a serious impediment did exist. In light of Dereci & Ors (European citizenship)  EUECJ C-256/11, a denial of the genuine enjoyment of the substance of the rights attaching to Union citizenship, which entailed recognising a right of residence for family members, was a substantive rule in EU law because the genuine enjoyment of Union citizens’ right of residence effectively conferred a right of residence on the members of his or her family. Secondly, Member States’ margin of discretion is limited by their duty to respect the right to private and family life, under article 7 of the CFR that had (under article 6(1) TEU) the same legal value as the Treaties.
In Dereci, the CJEU held that the right to respect for private and family life was impaired by refusing the right of residence to third country nationals who were members of the Union citizen’s family: article 7 CFR corresponded to article 8 ECHR and both had the same meaning and scope. Following Strasbourg’s broad conception and approach to private and family life and stressing that “family” could not be defined using “variable geometry” (the fact that the family members were not from the EU did not matter), at para 77 the AG noted that right to private and family life (which could not be varied by secondary law) was enjoyed by everyone falling within article 3(2) of the Citizens Directive. In defining the scope of the fundamental right to private and family life, the notion of family cannot vary according to the strict definitions under the provisions of secondary law.
In answering whether OFMs who were unable to satisfy national legislative provisions could rely on article 3(2), the AG thought that provision could be used to challenge – “disapply” the requirements narrowing its scope – any incompatibility between domestic law and article 3(2) which limited the scope of beneficiaries’ rights (paras 80 – 85).
Questions 3 and 4
The third question referred inquired whether the category of OFMs is restricted to persons who have lived in the same state as the Union national (or spouse) prior to the latter’s arrival in the host Member State.
The AG construedarticle 3(2)(a)to preclude national legislation which limits the scope of that provision in relation to OFMs who resided in the same State as the Union national prior to the latter coming to the host Member State. The wording of article 3(2)(a) – “country from which they have come [meaning the family members and not the Union citizen]”, including both EU and other states – could not be interpreted as referring only to the EU State from which the Union citizen who has exercised his free movement comes (paras 91 – 92).
Moreover, in Jia (Free movement of persons)  EUECJ C-1/05 – a case on Directive 73/148, repealed by the Citizens directive – rather than subordinating the existence of dependency to a condition of the Union citizen and family member living in the same state, the CJEU ruled that a “dependent” family member’s status was a question of factual (material) support coupled with the exercise of a Union citizen’s (or spouse’s) right of free movement. Equally, it was held that the need for material support for family members must exist, “at the time when they apply to join the Union citizen”, either in their state of origin or from (the state) where they came. Inevitably, the AG (para 98) could not find any reason to embrace a different definition – which would make this classification reliant on a residence condition in the same state as the Union citizen – of “dependant” for the purposes of article 3(2)(a).
The fourth question queried whether dependency on the Union citizen or spouse needed to exist shortly before the former moved to the host Member State.
The AG explained that the notion of “dependant” does not imply that dependency existed shortly before the Union citizen moved to the host Member State. For example where (i) dependency existed when the Union citizen settles in the host Member State but is subsequently interrupted article 3(2) is not satisfied; and (ii) dependency results after the Union citizen’s entry into the host state, it was possible to consider the family member as being “dependent” (an example of a nephew who recently lost his parents and depended for care on his Union citizen uncle was offered by the AG, para 99).
The fifth question sought to ascertain whether Member States were entitled to subject entry and residence of OFMs to particular requirements in relation to the length and nature of the dependency contemplated in article 3(2)(a). The answer followed from the answers to questions 1 – 4.
Having examined the question, the AG concluded that article 3(2)(a) did not preclude Member States’ national legislation which subjected the entry and residence of a third country national to conditions – which ensured the reality, effectiveness and duration of the dependency – connected to the nature and duration of dependency (para 105). Yet any conditions imposed must not only pursue a legitimate objective, they must also be suited to achieve that objective and do not go further than what is required to achieve it (para 108).
Thus, national legislation would have to cede ground to the “rights conferred by the EU legal order” which could not be deprived of its effectiveness. For example, it was explained that a national provision that expected more than 20 years’ dependence on the Union citizen (for a family member to benefit from a right of residence) would be “unacceptable” (para 106).
The CJEU’s Judgment (September 2012)
The Court’s decision is, of course, expressed in similar terms to the above.
Questions 1 and 2
Focusing on the discretionary nature of article 3(2) in comparison to the mandatory language of article 2(2) of the Citizens Directive, the CJEU concentrated on the words “shall facilitate” in article 3(2) to explain that it was clear that third country nationals with “a relationship of particular dependence” on the Union citizen enjoyed “a certain advantage” over other third country nationals who were not within the class of OFMs (paras 18 – 21).
In satisfaction of that obligation, Member States must enable beneficiaries/applicants to obtain a decision on their application that is founded on an extensive examination of their personal circumstances and, if refused, is justified by reasons: an in depth examination of individual cases was also corroborated by the preamble (recital 6) to the Citizens Directive.
Owing to the drafting of article 3(2) – “in accordance with its national legislation” – Member States were allowed “wide discretion” in implementing their obligations. But any factors to be taken into account through national law would need to resonate with the natural meaning of “facilitate” and dependence mentioned in article 3(2) – the provision could not be deprived of its “effectiveness” (para 24).
The fact that article 3(2) was insufficiently precise to be relied upon directly by applicants to raise criteria which from the applicants’ perspective remained relevant in assessing their applications was offset by the possibility of judicial review of “whether the national legislation and its application have remained within the limits of the discretion set by that directive” (para 25, by analogy the Court referred to its case law: Kraaijeveld and Others  EUECJ C-72/95, Waddenvereniging and Vogelbeschermingsvereniging  EUECJ C-127/02 and Stichting Natuur en Milieu and Others  EUECJ C-167/09).
Questions 3 and 4
In relation to the third and fourth questions the CJEU held that in order to be covered by article 3(2) (family members who are “dependants” of a Union citizen), the dependence must exist in the state from which the family member in question comes minimally at the time when such a family member makes an application for entry (para 35).
In relation to interpreting the word “they” in articles 3(2) and 10(2)(e), the Court said this:
31 As the Advocate General has explained in points 91, 92 and 98 of his Opinion, there is nothing to indicate that the term ‘country from which they have come’ or ‘country from which they are arriving’ [‘pays de provenance’] used in those provisions must be understood as referring to the country in which the Union citizen resided before settling in the host Member State. On the contrary, it is clear, on reading those provisions together, that the country referred to is, in the case of a national of a third State who declares that he is a ‘dependant’ of a Union citizen, the State in which he was resident on the date when he applied to accompany or join the Union citizen.
Thus, in the Upper Tribunal proceedings it was for the respondents to prove that they were Mrs Patricia Rahman’s dependants in Bangladesh at the time they applied to join her in the UK (para 34). If they could prove their dependence that way pursuant to article 10(2), then the host Member State would have to facilitate their entry and residence under article 3(2).
In answering the fifth question the Court reemphasised the AG’s observation that in the exercise of discretion Member States may – in order to ascertain genuineness and stability – lay down in national legislation particular requirements about the nature and duration of dependence. But as noted above in para 24 of the judgment in relation to questions 1 and 2, the natural meaning of “facilitate” and dependence mentioned in article 3(2) meant that the provision’s effectiveness could not be sacrificed in the exercise of Member States’ discretion (para 39 –40).
The sixth question asked whether the grant of the residence card referred to in article 10 may be conditional on the requirement that the circumstance of dependence set out under article 3(2)(a) has endured in the host Member State.
The Court explained that neither article 3(2)(a) nor any other provision of the Citizens Directive settled the question. So the answer to the question did not fall within the scope of the Citizens Directive (paras 44 – 45).