Sunday, 19 January 2014

When is the family member of an EU citizen ‘dependent' on that citizen?




By Chiara Berneri, Lecturer at BPP Law School

On the 16th of January 2014 the Court of Justice of the European Union (CJEU) further clarified the circumstances under which a family member of an EU citizen who moves to another Member State can be considered a dependant within the meaning of the Directive on the free movement of EU citizens (Directive 2004/38, or the ‘citizens’ Directive’).

The meaning of the word ‘dependant’ in the citizens’ Directive is important, because that Directive allows EU citizens who move to another Member State to bring with them or to be joined by their spouse, registered partner (under certain conditions), descending direct relatives of the citizen or the citizen’s spouse/partner who are under 21 or ‘dependants’, and the ascending directive relatives of the citizen or spouse/partner who are ‘dependants’. The Directive defines these people as the EU citizen’s ‘family members’.

In Flora May Reyes v. Migrationsverket the applicant, Ms Reyes, a Philippines citizen who was born and had lived in the Philippines for all her life, applied for a residence permit in Sweden as a dependant family member of her mother, a dual citizen of the Philippines and Germany, and her mother’s Norwegian cohabiting partner (who subsequently married her mother). Ms. Reyes was then 23 years old and had qualified as a nursing assistant in the Philippines, but had not been able to find work there.

Her application was refused by the Migrationsverket (the Swedish immigration authority) since Ms Reyes could not prove that the money that she was constantly receiving from her mother and her mother’s partner when she was still in the Philippines was used to supply her basic needs in terms of board and lodging and access to healthcare (she had always been dependent on her grandmother during her childhood and adolescence). Moreover, she could not show how her country’s social insurance and security system could have provided for a person in 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 by her mother and step-father, her situation could not be regarded being such as she could not support herself in her country without their help. When the case reached the Stockholm Immigration Court of Appeal the latter decided to refer to the CJEU questions to clarify the definition of a ‘dependant’ under the citizens’ Directive. and in particular (a) whether the person concerned had to show that he or she had applicant has to tried to obtain employment or support in the home country but that it was not possible, and (b) whether a person who had a good chance of finding a job in the host country could still be considered a ‘dependant’ of the EU citizen who was living there.

 The judgment

On the first question the Court began by pointing out that, in order to determine whether a family member was ‘dependant’, the host Member State had to assess whether the applicant was not in a position to support herself either in the state of origin or in the state in which she is applying for residency. Once this is established, there is no need to determine the reasons for that dependence.

This is because, reiterating the prior case-law of the Court, free movement rules, like those included in Directive 2004/38, must be interpreted broadly. For these reasons, the fact that a Union citizen pays regularly a sum of money to the applicant is enough to show that the latter is in a situation of dependence and, therefore, the descendant does not have to show that she tried unsuccessfully to find work or support from the authorities in the country of origin.

On this last point, the Court concluded that the potential requirement of proving the attempts to find a job or social assistance would make it excessively difficult for the descendent to obtain the right of residence. On the second question, the Court began by stating that dependence must exist in the country from which the family member comes. For this reason, the prospect of finding a job in the host Member State does not have to affect the interpretation of the condition of dependency. It concluded that the opposite solution would imply that the applicant, in order to be able to enjoy residency in the host Member State, should not apply for any job. However, this would expressly contradict Article 23 of the citizens’ Directive 2004/38, which authorises the family members of EU citizens to take up employment or self-employment in the host Member State.

Comments 

The judgment of the Court sheds some light on the requisites necessary in order to be considered a dependant. Owing to this judgment an applicant simply has to prove that he or she has been receiving financial support from the EU citizen family member that he or she wishes to join. Simply showing the regularity of the remittances seems to be enough to fulfil the requisite of dependency (see the Advocate-General’s Opinion, para. 59).

It should be recalled that in practice, remittances to family members in developing countries from those family members who have established themselves in developed countries (like EU Member States) is a central facet of immigration. Furthermore, the fact that the applicant, for age, personal conditions or any other reasons, will be likely able to find a job in the host Member State does not count against fulfilling the dependency requirements.

This judgment finds its grounds in the earlier case-law of the Court, namely the Lebon and Jia cases. Lebon introduced the principle that there is no need to investigate the reasons underpinning the situation of dependency. Jia underlined that the situation of dependency is established by referring to the necessity of material support in the State of origin of the applicant.

The application of these two principles to the circumstances in Reyes further clarified the definition of dependence. The Court expressly excluded any requirement to prove that the family member had to have unsuccessfully tried to find a job or to have tried to apply for social assistance. Moreover, since the necessity of material support has to be established in the state of origin, it means that the applicant can become economically independent in the host Member State. This is particularly relevant to people like Ms. Reyes – young people, at the start of their working life, who have undertaken further or higher education (and so are now over 21) but who have not obtained a job in their country of origin.

The indications of the CJEU seem to be quite sharp and clear. Therefore, it is likely that national courts will easily apply them.

The same interpretation of ‘dependants’ should logically be applied to the category of ascending direct relatives, because they are equally included in the definition of the core 'family members' in the citizens' Directive. A different treatment of this group of family members would amount to unjustified discrimination.

A different consideration should apply for dependants referred to in Art. 3(2)(a) of the citizens’ Directive, namely those relatives of the EU citizen who are not included in the definition of ‘family member’ in the Directive, but whose right of entry ‘shall’ be be facilitated by the host Member State (on this category of persons, see further the Court’s judgment in Rahman). From the Advocate-General’s opinion in this case it is possible to understand why national courts cannot be forced to apply the same interpretation of ‘dependants’ also to this group of family members. As he clearly pointed out, the provision concerning these family members in the citizens' Directive does not grant them the right to reside with their EU sponsor but simply obliges the host Member State to 'facilitate' their entry and residence. This means that, potentially, Member States are entitled to undertake an extensive examination of the personal life of the applicant. Perhaps this would mean that the relatives belonging to this category could be asked to prove that they have tried to find a job or seek social assistance in their home state.

Conclusions

With Reyes, the Court has begun to give more concrete guidance to national courts on how to apply the concept of dependence. This improvement was long awaited due to the lack of indications in any sense from the legislation. Given the new development introduced by this case it is likely that in the future other challenging questions on this issue will arise.


Barnard & Peers: chapter 13

29 comments:

  1. can a 28 years married person who have residence card FAMILY MEMBER OF EU CITIZEN which was got through portuguese father move with his portuguese father?

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    Replies
    1. Yes, as long as that person is dependent as defined by the CJEU case law discussed here.

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  2. thaks dear,
    As CJEU has clarified in McCarthy that dependent family member who have residence card of family member of EU citizen can accompany visa free with EU citizen to UK. will i also be eligible free visa free to UK for 3 months for visit with my father?

    best regards

    ReplyDelete
    Replies
    1. Yes, once the UK applies that judgment in practice (April 6th), although the UK authorities might conceivably ask for proof whether a 28 year old was still dependent.

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  3. Hi,

    Can parents who are capable to support themselves (financially) but want to apply for a schengen visa to travel with EU citizen be classed as Direct member under the Directive?

    Regards

    ReplyDelete
    Replies
    1. According to the case law if the parents receive support from the EU citizen they are dependents, and would then be covered by the Directive, assuming that they are living with that citizen.

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  4. I have appeal a rejection of moving to my spouse in Sweden , at the Migrationsverket court of appeal. We waited more than a year and got rejected. How long it will take so they make a decision? Will it time one year again or there is a min and max time for the appeal to answer.

    ReplyDelete
    Replies
    1. If you are talking about a non-EU spouse joining an EU citizen from another Member State, the EU citizens' Directive doesn't regulate that issue.

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  5. Hi,

    1. Is there any minimum time period during which period the parent has received financial support?

    2. Does it matter that the financial support to the parent has been only been sent for several months now and only occasionally when the parent is in the country of origin (which is outside of EU) and not visiting adult children in EU?

    3. Does this period when the parent is visiting the adult children with a visitor visa in EU considered as further evidence of dependency? When returning back to the country of origin the parent was always given money for financial support in the country of origin (but there is no evidence that this money was given), it is only now that the financial support is via bank transfer as a proof of financial support.

    4. Does it play role that the parent does not have any direct relative (i.e., the parent's parents, the spouse, brothers and sisters passed away) in the country of origin? The parent is thus emotionally dependant to the children in EU.

    5. Can the parent, who is now retired and gets state pension from the country of original (which is outside of EU) and thus is able to almost fully support financially still be considered dependant?

    Thanks and Kind Regards

    ReplyDelete
    Replies
    1. All very interesting questions, but the CJEU has not really addressed them. In my opinion, it could be argued that by analogy with Reyes, since the prospect of the family member finding a job is irrelevant, the possibility of other family members being able to support the person concerned is not relevant either. On the retirement pension point, 'dependence' surely does not apply only where the EU citizen supplies *all* of the financial needs of the person concerned. Perhaps by analogy with the case law on free movement of workers, there is a kind of de minimis rule, maybe a 'genuine and substantial' contribution. And I would imagine that a short duration of support might be relevant, but other factors could also apply. For instance, the family member might just recently have been widowed or retired or developed a long-term illness, and/or there is no other prospect of financial support for the foreseeable future.

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    2. Is it necessary for a british citizen, who wants to bring a direct ascendant ( 21+) to live in Germany, to be in Germany first or he can accompany the non-EEA family member to Germany from the non-EEA member's home country. If so what visa the non-EEA member should apply for initially?

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    3. I can't give advice on individual cases. As the law currently stands, there is no explicit rule about where the family member lived before (if the family member is covered by Article 2 of the citizens' Directive). People often apply for a Schengen visa in these situations but it's best to consult a lawyer to be sure of what you should do.

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  6. Dear Mr. Peers,

    I would like to extend the question above: Travelling with financially unindependent parents. I am an EU citizen and would like to travel with my non-EU parents to London. My argument for dependency was me covering ALL the costs of the trip. Would my parents then qualify for the EEA family member visa (whichrequires dependency of the family member on the EEA citizen)?

    Thank you very much for your response.

    ReplyDelete
    Replies
    1. I can't comment on individual cases. The criteria for 'dependence' were most recently set out in the Reyes judgment, which doesn't make specific reference to covering the costs of an individual trip as a factor.

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  7. I am a 71 years old American and have one child. She is married to a Swede and they have one child, my only grandchild. This is my only family. Why is emotional dependence not considered? Why is the only type of Dependence financial? A Family also provides companionship and a sense of belonging. The bond between a mother and her child is life -long and should not have to be sacrificed just because her child marries the man she loves and moves to his native country. This is heartless and cruel.

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    Replies
    1. I agree, although it seems clear from the case law that only financial dependence is legally relevant. But even despite that restriction, the rules are more generous than most national immigration laws in the EU.

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    2. If you compare the immigration policy of the Netherlands on parents where the man I love lives to the EU law which allows EEA family member permit, you would absolutely love the possibility it offers. The Dutch govt doesn't even consider you as a family member, it is like you shoulder the responsibility to raised your children, then once they reach 18, you are no use anymore and will become a nobody to your children. You have to wait to die alone in your home country. Now, how does that sound for being heartless and cruel?!

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  8. hi, I am a spanish citizen and i am inviting my dad ( filipino citizen) for 3 months holiday here in Spain, unfortunately, to my surprise the guard in the Spanish Embassy in Manila is referring my dad to go to VFS and VFS is asking him 3,000 or 60 euros. In my understanding of Royal Decree 240-2007 , Chapter II , Article 4 number 2, states that ¨2. Family members entering the country who are not nationals of a European Union Member State or of another state party to the Agreement on the European Economic Area must have a valid passport and, in addition, the relevant entry visa where required by Regulation (EC) No 539/2001 of 15 March 2001 listing the third countries whose nationals must be in possession of a visa when crossing the external borders and those whose nationals are exempt from that requirement. These visas shall be issued free of charge and preference shall be given to processing visas for family members who are accompanying or joining the EU citizen.¨ please correct me if I am right about the Family Member definition that I found ¨core family members of the EU/EEA citizens only, further defined as: spouses, registered partners/cohabitants under any EU/EEA law, direct descenders of both spouses/registered partners under the age of 21, and the parents of the EU/EEA member in addition to the parents of his/her spouse/registered partner¨
    so therefore in my opinion, my father should NOT pay visa fee am I right ? thank you very much in advance

    ReplyDelete
    Replies
    1. The law you refer to appears to implement the EU citizens' Directive. But that Directive only applies to EU citizens who have moved to another Member State. It wouldn't apply to a Spanish citizen in Spain, so the normal Schengen visa application fee of €60 applies.

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  9. Dear Sir/ma'am,
    I am a filipina married 47 to Spanish national last February 10, 2015, I am currently living in Lliria, Valencia. I have my sister who worked in Philippines consulate in Morroco. She is working in Morocco for about 20 years already. But her only wish is to retire and live with me in Spain. She is 65 years old and single. She supported me when I am in Philippines. I wish we could be together here in Spain. My husband is happy and willing if my sister is live with us. But the question is. Can I get or retire my sister here in Spain? Please help me. I wanted to know if there is possibility in her case.

    ReplyDelete
    Replies
    1. I can't give advice on individual cases. EU citizens are only covered by the EU citizens' Directive (ie the law discussed above) if they have moved to another Member State. A Spanish citizen who is living in Spain with a non-EU family member is therefore not covered by it. Equally the EU Directive on family reunion for third-country nationals only covers third-country national sponsors, not sponsors who are EU citizens who live in their own Member State.

      However, the CJEU case law says that the family reunion Directive *can* be used where a family consists of both EU and non-EU citizens - in that case the non-EU citizen can invoke it. But that Directive does not mention admission of siblings of non-EU citizens, only spouses, partners, children and parents (possibly also grand-children and grand-parents). Member States are free to set more favourable standards, so the admission of siblings is purely up to national law.

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  10. Dear Sir Madam,

    I am EU Citizen exercising my Residence rights as EU/EEA nationals in Ireland.
    My son non EU national over 25 years now joined me few years ago, we applied for residence permit with the EU 1 form and was approved for 5 years. He is due now for Permanent residence and we are trying to apply for that with the EU 3 form.
    My question is in regards to the Explanatory Leaflet for FORM EU3 as below, we have to provide Evidence of dependence on the EU citizen (if child is over the age of 21)
    -we could provide that when we applied for 5 years as I remit money for support monthly via western union and provided the receipt, but now he is a member of the household . How do we provide this evidence now when the applicant is already leaving the host states for 5 years
    He is currently in College doing FAS course and on job seeker allowance.
    Do they expect me to provide a receipt of the money that I give to my son in the living room ? I need more clarity on this question

    For a child, grandchild or descendent of the EU citizen: • Birth certificate for the applicant • A letter of consent from the absent parent/legal guardian permitting the child to reside in the State, if only one parent or legal guardian of the child is to reside in the State with the child • Evidence of dependence on the EU citizen (if child is over the age of 21)


    ReplyDelete
    Replies
    1. I can't give advice on individual cases, in particular on national implementation of EU law. From the EU law point of view it's necessary to show that a child was under 21 for some of the period and dependent (as defined by the CJEU case law) after that period. The CJEU case law points mainly to family financial support for the child, so providing as much evidence of that support as possible would fit those criteria.

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  11. Hi, I am Hungarian and I have a Filipina wife who have a son from her former husband.her son came here last year 20years old, and this year he will turn to 21 and he want to study this year. The situation is he have freeovement as family member until 21. Can we extend it until he finish study or as long he is living with us and descendants of my wife?can we appeal for it or if there's any chance ?
    Please

    ReplyDelete
    Replies
    1. I can't give advice in individual cases. In general the child or step-child of an EU citizen *who has moved to another Member State* is covered by EU free movement law (so entitled to stay in that Member State) even over the age of 21, as long as he or she is 'dependent' as defined in case law, including most recently the Reyes case discussed here.

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  12. Hello,

    My husband and I are Spanish citizens recently moved to live and work in Austria. My husband is working. My mother who is 82 and a USA citizen was recently disgnosed with a serious illness (partial complex seizures) and I have been taking care of her. She can not live alone.She is financially independent. As a beneficiary of Directive 2004/38ec can we get her a residence permit to live with us in Austria so I do not have to be separated from my husband and daughter and care for my mother in our home? If so how do I get the Austrian authorities to recognize our right?

    ReplyDelete
    Replies
    1. Thanks for your question. I can't give advice on individual cases. In general the case law has addressed what it means to be financially dependent, but not the converse question of whether a family member might be considered a 'dependent' with a right to stay with an EU citizen for medical reasons, despite financial independence. In this scenario it could be argued that the family member could only be considered financially independent if they could fully pay the costs of any necessary care indefinitely. Failing that it could be argued that the concept of 'dependent' includes those who are medically dependent, not just financially dependent. As a final alternative, Article 3(2) of the citizens' Directive refers explicitly to those who need medical support; it doesn't require Member States to admit such family but does require Member States to consider such applications and give reasoned decisions on them. The only ECJ case law on this optional clause to date is the judgment in a case called Rahman: http://curia.europa.eu/juris/document/document.jsf?text=&docid=126362&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=268044

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  13. In case of an adoption of child, can you then apply thst child through the directive 2004/38EC. If you for example take a situation where the eu citizen and the non eu citizen have lived in the host country, moved back the the eu citizens home country. ( under the directive ) is it then possibly to apply visum for example a family member or do you have to make use of that right while you live in the host country ? In other words it's to late while you have moved back to the home country.

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    Replies
    1. The EU legislation is silent on adoption. Arguably it defers to each Member State's family law rules on whether adoptions in that State or another State are valid, but it might also be argued that refusal to recognise an adoption might in some cases create a barrier to free movement that would have to be justified on objective grounds. There's no ECJ case law on the issue.

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