When Is The Household Unit Of Measurement Fellow Member Of An Eu Citizen ‘Dependent On That Citizen?

By Chiara Berneri, Lecturer at BPP Law School

On the 16th of Jan 2014 the Court of Justice of the European Union (CJEU) farther clarified the circumstances nether which a household unit of measurement fellow member of an European Union citizen who moves to roughly other Member State tin live on considered a dependant inside the important of the Directive on the complimentary movement of European Union citizens (Directive 2004/38, or the ‘citizens’ Directive’).

The important of the give-and-take ‘dependant’ inwards the citizens’ Directive is important, because that Directive allows European Union citizens who displace to roughly other Member State to select amongst them or to live on joined yesteryear their spouse, registered partner (under surely conditions), descending straight relatives of the citizen or the citizen’s spouse/partner who are nether 21 or ‘dependants’, too the ascending directive relatives of the citizen or spouse/partner who are ‘dependants’. The Directive defines these people as the European Union citizen’s ‘family members’.

In Flora May Reyes v. Migrationsverket the applicant, Ms Reyes, a Philippines citizen who was born too had lived inwards the Philippines for all her life, applied for a residence permit inwards Sweden as a dependant household unit of measurement fellow member of her mother, a dual citizen of the Philippines too Germany, too her mother’s Norwegian cohabiting partner (who after married her mother). Ms. Reyes was too so 23 years one-time too had qualified as a nursing assistant inwards the Philippines, but had non been able to honor move there.

Her application was refused yesteryear the Migrationsverket (the Swedish immigration authority) since Ms Reyes could non test that the coin that she was constantly receiving from her woman bring upward too her mother’s partner when she was withal inwards the Philippines was used to render her basic needs inwards damage of board too lodging too access to healthcare (she had ever been theme on her grandmother during her childhood too adolescence). Moreover, she could non exhibit how her country’s social insurance too safety organisation could possess got provided for a individual inwards her conditions.

On appeal against this decision, the Gothenburg Administrative Court stated that, although it was evident that the basic needs of the applicant were met yesteryear her woman bring upward too step-father, her province of affairs could non live on regarded beingness such as she could non back upward herself inwards her province without their help. When the example reached the Stockholm Immigration Court of Appeal the latter decided to refer to the CJEU questions to clarify the Definition of a ‘dependant’ nether the citizens’ Directive. too inwards item (a) whether the individual concerned had to exhibit that he or she had applicant has to tried to obtain job or back upward inwards the abode province but that it was non possible, too (b) whether a individual who had a skillful gamble of finding a chore inwards the host province could withal live on considered a ‘dependant’ of the European Union citizen who was living there.

 The judgment

On the get-go enquiry the Court began yesteryear pointing out that, inwards gild to determine whether a household unit of measurement fellow member was ‘dependant’, the host Member State had to assess whether the applicant was non inwards a set to back upward herself either inwards the province of rootage or inwards the province inwards which she is applying for residency. Once this is established, at that spot is no demand to determine the reasons for that dependence.

This is because, reiterating the prior case-law of the Court, complimentary movement rules, similar those included inwards Directive 2004/38, must live on interpreted broadly. For these reasons, the fact that a Union citizen pays regularly a amount of coin to the applicant is plenty to exhibit that the latter is inwards a province of affairs of dependence and, therefore, the descendant does non possess got to exhibit that she tried unsuccessfully to honor move or back upward from the regime inwards the province of origin.

On this final point, the Court concluded that the potential requirement of proving the attempts to honor a chore or social assistance would dice far excessively hard for the descendent to obtain the correct of residence. On the minute question, the Court began yesteryear stating that dependence must be inwards the province from which the household unit of measurement fellow member comes. For this reason, the prospect of finding a chore inwards the host Member State does non possess got to deport upon the interpretation of the status of dependency. It concluded that the contrary solution would imply that the applicant, inwards gild to live on able to bask residency inwards the host Member State, should non apply for whatever job. However, this would expressly contradict Article 23 of the citizens’ Directive 2004/38, which authorises the household unit of measurement members of European Union citizens to accept upward job or self-employment inwards the host Member State.

Comments 

The judgment of the Court sheds roughly low-cal on the requisites necessary inwards gild to live on considered a dependant. Owing to this judgment an applicant merely has to test that he or she has been receiving fiscal back upward from the European Union citizen household unit of measurement fellow member that he or she wishes to join. Simply showing the regularity of the remittances seems to live on plenty to fulfil the requisite of dependency (see the Advocate-General’s Opinion, para. 59).

It should live on recalled that inwards practice, remittances to household unit of measurement members inwards developing countries from those household unit of measurement members who possess got established themselves inwards developed countries (like European Union Member States) is a key facet of immigration. Furthermore, the fact that the applicant, for age, personal weather or whatever other reasons, volition live on probable able to honor a chore inwards the host Member State does non count against fulfilling the dependency requirements.

This judgment finds its grounds inwards the before case-law of the Court, namely the Lebon and Jia cases. Lebon introduced the regulation that at that spot is no demand to investigate the reasons underpinning the province of affairs of dependency. Jia underlined that the province of affairs of dependency is established yesteryear referring to the necessity of cloth back upward inwards the State of rootage of the applicant.

The application of these 2 principles to the circumstances inwards Reyes further clarified the Definition of dependence. The Court expressly excluded whatever requirement to test that the household unit of measurement fellow member had to possess got unsuccessfully tried to honor a chore or to possess got tried to apply for social assistance. Moreover, since the necessity of cloth back upward has to live on established inwards the province of origin, it agency that the applicant tin dice economically independent inwards the host Member State. This is peculiarly relevant to people similar Ms. Reyes – immature people, at the start of their working life, who possess got undertaken farther or higher instruction (and so are instantly over 21) but who possess got non obtained a chore inwards their province of origin.

The indications of the CJEU appear to live on quite sudden too clear. Therefore, it is probable that national courts volition easily apply them.

The same interpretation of ‘dependants’ should logically live on applied to the category of ascending straight relatives, because they are as included inwards the Definition of the pith 'family members' inwards the citizens' Directive. H5N1 dissimilar handling of this grouping of household unit of measurement members would amount to unjustified discrimination.

H5N1 dissimilar consideration should apply for dependants referred to inwards Art. 3(2)(a) of the citizens’ Directive, namely those relatives of the European Union citizen who are non included inwards the Definition of ‘family member’ inwards the Directive, but whose correct of entry ‘shall’ live on be facilitated yesteryear the host Member State (on this category of persons, run across farther the Court’s judgment inwards Rahman). From the Advocate-General’s see inwards this example it is possible to sympathize why national courts cannot live on forced to apply the same interpretation of ‘dependants’ likewise to this grouping of household unit of measurement members. As he clearly pointed out, the provision concerning these household unit of measurement members inwards the citizens' Directive does non grant them the correct to reside amongst their European Union sponsor but merely obliges the host Member State to 'facilitate' their entry too residence. This agency that, potentially, Member United States are entitled to undertake an extensive exam of the personal life of the applicant. Perhaps this would hateful that the relatives belonging to this category could live on asked to test that they possess got tried to honor a chore or seek social assistance inwards their abode state.

Conclusions

With Reyes, the Court has begun to give to a greater extent than concrete guidance to national courts on how to apply the concept of dependence. This improvement was long awaited due to the lack of indications inwards whatever feel from the legislation. Given the novel evolution introduced yesteryear this example it is probable that inwards the hereafter other challenging questions on this effect volition arise.

Barnard & Peers: chapter 13

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