What free movement rights are for - Jia considered

Updated by Gherson on Friday 1 February 2008. | | | | | |

In KG (Sri Lanka) and AK (Sri Lanka) [2008] EWCA Civ 13 (25 January 2008) the Court of Appeal considered Article 3 (2) of Council Directive 2004/38/EC.  The entire Directive has been implemented into the domestic law of the United Kingdom by the Immigration (European Economic Area) Regulations 2006.  

The facts are straightforward.  KG and AK are Sri Lankan nationals.  They both unsuccessfully applied for asylum in 2000 and then remained in the UK without leave to remain.  Then in January 2006 KG’s brother (who had applied for asylum in Germany long before KG’s application in the UK) obtained citizenship in Germany.  Similarly AK’s cousin (his mother’s sister’s daughter) became a French citizen.  Like KG’s brother in Germany she had been recognised as a refugee in France many years earlier.  

Both AK’s brother and KG’s cousin became “Union Citizens” upon their obtaining the citizenship of Germany and of France.  They then came to the UK, as they are allowed to under the free movement rights enjoyed by Union Citizens.  So AK and KG then applied for residence permits in the UK claiming that they were family members of the Union Citizens concerned under the terms of Article 3 (2) (a) of the Citizens’ Directive.  The Directive provides for the issue of such documents to the family members of Union Citizens at its Article 10.  

The law is far more complicated, not least because of the fact that by Article 40 of the Citizens’ Directive Member States of the European Union are required to implement the Directive by national legislation - hence the Immigration (European Economic Area) Regulations 2006.  

Citizenship of the European Union was established by the Consolidated Version of the Treaty establishing the European Community.  At its Article 18 this provides:

“Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaty and by the measures adopted to give it effect.”
 
European legislation has always made provision for these rights also to be enjoyed by the family members of Union Citizens.  Article 2 (2) of the Citizens’ Directive says that family members of Union Citizens are:

“a) the spouse;

b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host member state treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; 
c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); 
d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b);”

Article 3 of the Directive includes other family members as beneficiaries of Union Citizens’ rights as follows:

“2. Without prejudice to any right to free movement and residence the persons concerned may have in their own right, the host Member State shall, in accordance with its national legislation, facilitate entry and residence for the following persons:

(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; 


(b)     the partner with whom the Union citizen has a durable relationship, duly attested. 

The host Member State shall undertake an extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people.”

The Immigration (European Economic Area) Regulations 2006 transpose these provisions of the Directive.  (It should be noted that the European Economic Area, or the “EEA” comprises both the countries comprising the European Union and Norway, Iceland and Liechtenstein) as follows:

8. (1) In these Regulations "extended family member" means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).

(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and-
(a) the person is residing in an EEA State in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;

(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.


(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner.

(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom. 

(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national. 

(6) In these Regulations "relevant EEA national" means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).

The problem for the Appellants AK and KG was of course that they did not satisfy the requirements of regulation 8 (2) (a).  They had not been residing with the Union Citizens in “an EEA state in which the EEA national also resides.”   Instead they had come to the UK from Sri Lanka.  

Accordingly AK and KG’s argument before the Court of Appeal was that the Citizens’ Directive had not been properly transposed into UK law.  The Directive, and Article 3 (2) of it in particular, did not require them to have been living in an EEA State with their Union Citizen relatives prior to their coming to the UK.  

To resolve this issue the Court of Appeal considered first the history of European legislation establishing free movement rights. It located within the Citizens’ Directive a clear echo of previous European legislation to the effect that the rights of free movement were concerned not with enabling (initially)  workers (by reference to the workers’ rights contained in Article 10 of Regulation 1612/68) to travel to the Union’s territory but instead to enable travel and establishment of the worker (and his or family) within the territory.  

The Court noted that the existence of this principle  was however not conceded at all by counsel for either Appellant, who supported  their positions by reference to the European Court of Justice’s (the “ECJ”’s) judgments in Mouvement contre le Racisme, l'Antisemitisme et la Xenophobie ASBL (MRAX) v Belgium (C459/99) (2003) 1 WLR 1073, Commission of the European Communities v Spain (C157/03) (2005) ECR I-2911   Minister voor Vreemdelingenzaken en Integratie v Eind (C-291/05) and Carpenter v Secretary of State for the Home Department ( C-60/00) ECJ [2002] ECR I-6279; [2002] INLR 439)

Quoting from the ECJ’s judgment the Court of Appeal said that the ECJ in  Commission v Spain had:

“made explicit what had been at least implicit in MRAX, that
the right of entry into the territory of a Member State granted to a third country national who is the spouse of a national of a Member State derives from the family relationship alone.”

(It is perhaps worth remembering that the Asylum and Immigration Tribunal in its determination last year in GC (Citizens' Directive: UK National's Spouse) China [2007] UKAIT 00056 (now at  [2007] Imm AR 667 - with some apparent reluctance - reached a conclusion similar to this in respect of the judgments in MRAX and in Carpenter).

Having said this however the Court emphasized that both MRAX and Commission v Spain were concerned with the movement of spouses of Union Citizens – and that nothing in those judgments could be taken as casting any light on the rights of extended family members like the Appellants KG and AK to enter the EU or the EEA.

The Court did not waver from its conviction as to the function of free movement rights being to enable workers and or citizens to move within the EU.  This, ultimately is what determined its reading of the words “the country from which they have come” in Article 3 (2) (a) of the Citizens’ Directive as necessarily referring to an EEA state.  

But what did concern the Court was a submission from counsel for KG inviting the panel to consider the circumstances of hypothetical EEA nationals living outside the EEA for long periods or who had indeed never lived inside the EEA.  What if such a person, for example a Portuguese national living somewhere like Daman, Diu or Goa, places which for 450 years were part of Portuguese India, wished to come to the EEA (to a state different to Portugal) accompanied by dependent extended family member? Clearly the rights conferred by the Citizens’ Directive must apply to both the Union citizen and to his dependent family member – even though neither would be entering the EEA from another EEA state – as Regulation 8 (2) (a) requires.    

This submission was designed to attack the central premise that runs through this judgment of the Court of Appeal, and which has informed most of the Asylum and Immigration Tribunal, Immigration Appeal Tribunal and the Court of Appeal’s decisions on free movement of EEA nationals and their families – which is that the free movement legislation is exclusively concerned with movement within the EU and not with the movement of people to the EEA.  

The Court addressed it directly at the end of its judgment, stating:

"68.    In most cases, including those addressed in these appeals, the country relevant to the rights of the Union citizen will indeed be a member state, because his rights will be based on movement, which the jurisprudence indicates will normally be movement within the Community.   That however leaves the so far unresolved position of the Union citizen who wishes to enter a member state other than his own, being a person who has never lived in his own member state, or has lived in a third country for a substantial period of time:  see §§ 29-31 above.   The most that can be said about the impact of such cases is that, provided Community law sees the need to accommodate them under the freedoms of movement of Union citizen, they would undermine the position of Regulation 8(2)(a) in interpreting article 3(2)(a) of Directive 2004/38 as requiring “the country from which they have come” as necessarily being an EEA state."
   
The submission was made as part of the argument that the aims of the Citizens’ Directive were not limited to facilitating the free movement of workers / citizens within the community by prohibiting States from preventing  the family members of its nationals from accompanying them – but that the reunification of families was also an objective.  The submission was also supported by the contents of recital 6 of the Directive, which says that the provisions as to the family members described in Article 3 (2) have been included:

“in order to maintain the unity of the family in a broader sense”

The Appellants’ position was also supported by the decision of the ECJ in Jia v Migrationsverket (C-1/05), in which the ECJ had directly addressed the question of:

"whether Community law, in the light of the judgment in Akrich, requires Member States to make the grant of a residence permit to a national of a non-Member State, who is a member of the family of a Community national who has exercised his rights of free movement, subject to the condition that the family member has previously been lawfully resident in another Member State"

This question had been put to the ECJ due to the confusion caused by its earlier judgment in Akrich (Case no C-109/01) in which the ECJ had stated:

“…the national of a non-Member State, who is the spouse of a citizen of the Union, must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated.”

The ECJ in Jia also had before it the Advocate-General’s opinion on this point – drawn from his consideration of the judgments in MRAX, Commission v Spain and Akrich. Basically his view was that the principle contained in the above quotation was of general application. 

(Plainly Regulation 8 (2) (a) (in the case of the family members described in Article 3 of the Citizens’ Directive – for Article 2 family members the corresponding provision of the Regulations is 12 (1) (b) (i)) is the implementation of this part of the ECJ’s judgment in Akrich, and of the Advocate-General’s opinion).    

In Jia the ECJ stated, in answer to the question put to it:

"The answer to Question 1(a) to (d) must therefore be that, having regard to the judgment in Akrich, Community law does not require Member States to make the grant of a residence permit to nationals of a non-Member State, who are members of the family of a Community national who has exercised his or her right of free movement, subject to the condition that those family members have previously been residing lawfully in another Member State"

Counsel for the Appellant KG is said by the Court of Appeal to have submitted that this was effectively the end of the Akrich principle (and by implication, that Article 8 (2) (a) of the Regulations did not reflect the requirements of the Citizens’ Directive).  The ECJ had distanced itself from that decision.  It had moreover rejected the Advocate-General’s view as to the general application of the principle taken from the Akrich judgment.  

The Court of Appeal emphatically disagreed with this interpretation of the Jia judgment, stating that:

•    the question as formulated could only have been answered negatively, as the ECJ had done.  Community law could not possibly require the domestic law of Member States to be more restrictive than it already was.

•    By not adopting the Advocate-General’s approach the ECJ had not indicated that it supported the approach of counsel for Mrs Jia.  In fact the terms of the ECJ’s answer were carefully limited – and drew attention to the factual differences between Mrs Jia’s case and the Akrich case.  (In particular Mrs Jia was lawfully resident in Sweden, albeit on a visit visa which expired two weeks after she made her application for a residence permit.  By contrast Mr Akrich had been unlawfully in the UK when he had agreed to be deported to Ireland, where his Union citizen spouse had established herself).  

•    If the ECJ had intended to depart from earlier authority (i.e. Akrich) it would be expected as “a court of last resort” to have done so in a very different way and to have made explicit what it was doing.  

This view of the lack of significance of the Jia judgment was echoed in the Court’s conclusions (paragraphs 57 to 65 of Buxton LJ’s judgment) as follows:

"63.Sixth, Jia is not authority for any general proposition that it is unlawful to demand a relation’s presence (lawful or otherwise) in a member state before he exercises his rights of movement, and therefore is not authority for reading that proposition into the construction of article 3(2)(a)."

As stated earlier the appeals failed because of the Court’s view that the country referred to in Article 3 (2) (a) was of necessity an EEA state.  So the Appellants had to show that they were dependent, within such a state, upon their Union Citizen relations.  But they had never claimed to be dependent upon these relations in any EEA state, so their appeals were bound to fail.  

Obviously if the appeal turned merely upon the proper reading of Article 3 (2) (a) of the Citizen’s Directive it followed that it would be appropriate to refer the case to the ECJ so that the Court could state what the meaning of “the country from which they have come” was. But the Court then embarked upon a detailed examination of the facts of the Appellants’ cases to see whether even if the interpretation point had gone in the Appellants’ favour they could still have won their appeals.  They found that the Appellants would inevitably have lost  because:

•    Their Union citizen relatives had not accompanied the Appellants when they came to the UK.  Indeed they had come to  the UK five years before their relatives did.  It was true that the  Citizens’ Directive actually only expressly imposed this   “accompanying or joining" requirement on Article 2 relatives, but it was inconceivable that it did not also apply to family members described in Article 3 (2).

•    neither Appellant could meet the dependency test contained in Article 3 (2), which had been explained in the Jia judgment

•    neither Appellant could reasonably claim that they had been part of their Union citizen relative’s household in Sri Lanka prior to their journey to the UK

•    in any event Article 3 (2) (a) was phrased in the present tense.  This was because the article assumes that the right of entry  of the family member will be decided pretty much contemporaneously with that of the Union Citizen he or she is joining or accompanying.  This requirement could not be fulfilled by the Appellants demonstrating in 2008 that they were dependant on their Union citizen relatives back in 1992

Given therefore that on the facts the Appellants could not succeed the Court of Appeal could not justify referring their cases to the ECJ.  

Lord Justice Hooper agreed with Buxton LJ’s judgment, as did Sedley LJ in respect of Buxton LJ’s interpretation of the policy behind Article 3 (2) (a).  But Sedley LJ found, by reference to the use of the terms  “country of origin” and “country from which they are arriving” in Article 8  (5) (e) of the Directive, that Article 3 (2) (a) did confer a similar right for persons coming from within the EEA and from outside it.  However that right was for their entry and residence to be “facilitated” “in accordance with… national legislation” of the relevant Member State.  This was not therefore likely to be a right of entry.   

This is likely to be a landmark decision in the entire "free movement" debate.  People who had been hoping that Jia would be recognised as consigning the “prior lawful residence in an EEA state” requirement of Regulations 12 (1) (b) (i) and 8 (2) (a) of the Immigration (European Economic Area) Regulations 2006 to history will be disappointed by this judgment.  It should be noted however that the Court has been constrained to recognise that the MRAX, Carpenter and Commission v Spain judgments show that spouses and other family members of Union Citizens falling within the definition at Article 2 of the Citizens’ Directive can, under community law, join their relatives from outside the EEA (contrary to Regulation 12 (1) (b) (i).  But the restrictions imposed by these regulations are apparently not, in the Court of Appeal’s view, unlawful.