Grandchildren are immediate family members under EEA law
This case was brought by two children aged nearly 7 and 12, from India, who wanted to join their Portuguese grandfather exercising his rights of free movement under European law to be in the UK. They had been refused a 'family permit', which is the name for the immigration document required family members of EEA nationals (as opposed to a a visa, or entry clearance, which would be required by a foreign national) by an Entry Clearance Officer at the the British High Commission in Bombay.
The question to be decided was whether they were the 'direct descendants' of their grandfather and thus immediate family members for the purposes of European law. The Asylum and Immigration Tribunal (AIT) held that they were.
The normal meaning of 'direct descendant' in UK law includes children, grandchildren, great-grandchildren, etc. but excludes nieces, nephews, great-nieces and nephews etc. There was no reason to think that the words were used with any different meaning in the Immigration (European Economic Area) Regulations 2006, which are the UK legislation giving effect to the European free movement directive (2004/38/EC).
The appeal was allowed: PG and VG (Portugal) [2007] UKAIT 00019.
Under European free movement law, a national of the European Economic area exercising rights of free movement under European law may be joined by family members. Students may be joined by their husband, wife or civil partner and their dependent children. For other 'qualified persons', exercising rights of free movement under European Law, family members are divided into immediate and extended family members. Immediate family members are the husband, wife or civil partner of the EU national, direct descendants (children, grandchildren, great-grandchildren) of the EU national or their spouse or civil partner who are under 21, and 'dependent relatives in the ascending line', i.e. parents, grandparents or great-grandparents who are dependent upon the applicant. Immediate family members have entitlements to join the qualified person in the UK; extended family members have these entitlements in certain circumstances.
The rights of family members are complicated by the way in which the UK has interpreted its obligations under European Law. UK law distinguishes between movement from one part of the European Union to another, and first entry to the European Economic Area. The UK regulations require the family member of a European Union national who is moving to the UK from outside the European Economic area to satisfy the same requirements as a foreign national coming to the UK – the requirements set out in the UK immigration rules that determine whether the person requires a visa. There is debate as to whether such requirements can lawfully be imposed under European law . At the end of the day, the debate is likely finally to be resolved by cases before the European Court of Justice.
The recent ECJ case of Jia (Case 1/05, judgment of the Grand Chamber on 9 January 2007) does not resolve the question.
