Nationals of the countries which make up the European Union (the "EU") are entitled to move freely within the Union to look for work, to study and to provide services. Their family members have similar rights too, regardless of their nationality, because if they did not the rights enjoyed by any "citizen" of the EU would be frustrated; a worker would be unwilling to move from one country to another to work if he or she was not permitted to be accompanied by his or her family members.

 

However the scope of the "free movement" rights  provided by European Community Law to the family members of EU citizens continues to be controversial. These rights are contained in Directive 2004/38/EC of the European Parliament and the Council – which is also called "The Citizens' Directive".

 

In each individual Member State of the European Union the rights set out in the Citizens' Directive are given effect by national legislation. In the UK this legislation is the Immigration (European Economic Area) Regulations 2006. The Regulations refer to the European Economic Area (the "EEA") because - as a result of other treaties with the European Union – nationals of Liechtenstein, Iceland, Switzerland and Norway enjoy the same rights of entry to the UK as do EU citizens.

 

In line with the Directive's Article 2.2 the Regulations confer rights on EEA nationals' "family members" – i.e. their spouses, civil partners and children under the age of 21 and also their parents and grandparents, if they are dependant upon the EEA national. They also confer rights, subject to conditions, upon EEA nationals' "extended family members". The Directive describes this group as:

 

"(a) any other family members, irrespective of their nationality, not falling under the definition in point 2 of Article 2 who, in the country from which they have come, are dependants or members of the household of the Union citizen having the primary right of residence, or where serious health grounds strictly require the personal care of the family member by the Union citizen"

 

Back in 2006 the Asylum and Immigration Tribunal considered the category of extended family members in AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048. The Tribunal's determination was issued in April of 2007.

 

The Tribunal looked at the European Court of Justice's (the "ECJ") decision in 316/85 Lebon [1987] ECR 2811, where the Court had found that the predecessor to the Citizens' Directive (which also required extended family members to be dependant upon the EU national they were seeking to join) didn't indicate that an extended family member's dependency upon an EU national had to be on the basis of necessity. All that was required was that the extended family member was dependent upon the EU national.

 

The Tribunal then looked at the ECJ's more recent decision in Jia v Migrationsverket, Case C-1/05, which came out on 9-1-2007.  The Tribunal found that in Jia the ECJ had said that the dependency had to be of necessity and not of choice. They said:

 

"the effect of the decision of the Court in Jia is to import into European law a requirement for dependence to be of necessity"

 

In the Tribunal's view this meant that extended family members of EEA nationals faced as tough a hurdle as the UK's Immigration Rules imposed on the non-immediate dependant family members of people settled in the UK.  This conclusion has effectively blocked applications from extended family members of EEA nationals who cannot prove that their dependency is one of necessity and not of choice for what is now nearly three years.

 

Recently the Tribunal applied the AP test of dependency in OQ (India) & Anor v Entry Clearance Officer (2009). It found that the Appellants could have supported themselves by paid employment and did not need to be dependant upon their EU national extended family member, and so it dismissed the appeals.

 

The Appellants appealed to the Court of Appeal. In an "ex tempore" judgment (given orally at the appeal hearing –  the written version is not yet available) the Court found that the Tribunal's interpretation of the ECJ's decision in Jia had been incorrect. The Directive (and therefore the Regulations) required dependency – but the issue was limited to the factual queston of whether there actually was such dependency; the law did not require that the dependency must be of necessity.

 

The appeals were therefore remitted to the Asylum and Immigration Tribunal for further reconsideration.
This is a highly significant development. It comes not long after the ructions caused to UK interpretations of European Union law by the ECJ's ruling in Metock, and is likely to result in a series of new judgments and decisions which cast AP and those which followed it into history.

 

Gherson's solicitors are ideally placed to advise in respect of rights of free movement for European nationals and their family members.