Jia in the European Court of Justice: Analysis
In Jia v Migrationsverket [2007] EUECJ C-1/05, the European Court of Justice (ECJ) gave judgment in a case with direct relevance to the rights of dependent relatives seeking to join European Economic Area (EEA) nationals exercising free movement rights within the United Kingdom. While the case is clearly significant it is likely, as discussed below, to leave important issues for future clarification or decision by the ECJ.
Ms Jia and her husband are Chinese nationals. Ms Jia’s son is married to a German national, and he and his wife live in Sweden where they are exercising rights under European community law on the basis that they are self-employed. In May 2003, Ms Jia entered Sweden with a 90-day visit visa. Before her visa expired, she applied for a residence permit to remain in Sweden with her son and his wife. In support of her application for the residence permit, Ms Jia argued that she and her husband were living in China in very straitened circumstances and that they were unable to support themselves without the financial support provided by remittances from her son and his wife in Sweden. She argued that they were in effect, therefore, their dependent relatives. The application for the residence permit was refused by the Swedish authorities. On appeal, the Swedish Alien Appeals Board referred a number of questions concerning the interpretation of European community law to the ECJ.
The major issue, in the light of an earlier decision by the ECJ in a case called Akrich [2003] EUECJ C-109/01, and important from the perspective of how the UK is currently interpreting its obligations under European community law, concerned what a dependent relative would need to show before being granted a permanent residence permit.
In essence the point here, as possibly implied by Akrich, was that the non-member state family member of the EU national exercising their free movement rights might have to show that they had been lawfully resident in another part of the European Union before their entry to the member state of the European Union in which the application was being made. Such a requirement would have implied that dependent relatives would have had to have held residency under national law in a particular member state, presumably in the majority of cases as dependent relatives of the relative exercising free-movement rights or as members of the same household, prior to coming to the country in which their relative now lived.
A series of specific questions were put to the ECJ Court by the Swedish Aliens’ Board. These included:
• whether it was necessary to show lawful residence within a state of the EU at the time of the application;
• whether the application could be made at a time when the applicant had only been granted entry to the member state for a short period and for another purpose not specifically designed to lead to settlement (Ms Jia had entered Sweden as a visitor and therefore on a basis unconnected with Akrichher subsequent application to remain permanently with her son);
• what ‘dependency’ in this context actually meant, and how it was to be demonstrated.
The Court found that there was no requirement for Ms Jia to have lawfully resided in another member state ‘as formulated in the judgment in Akrich’ before making the application, and the principle in the earlier case could not be transposed to Ms Jia’s situation.
In so concluding, there was an important difference in the facts of the two cases, and it is this contrast which is the real basis of the ECJ’s decision. As the ECJ note, Ms Jia was lawfully present in Sweden when she made her application, and she had not sought to evade the country’s immigration laws. Furthermore, Swedish law did not preclude the possibility that a residence permit would have been granted, provided that she had been able to provide sufficient proof of her dependency. In Akrich, by contrast, the applicant had unlawfully entered the United Kingdom on two occasions and been deported. He had then successfully argued that he should be removed from the UK to the Republic of Ireland where his wife was exercising free movement rights. This was done by the couple with a view to them then re-entering the United Kingdom: in effect, free movement was being used in an attempt to circumvent the difficulties created by Mr Akrich’s previous evasion of immigration control and deportation from the United Kingdom. As the ECJ in Jia note, in relation to the relevance of the guidance provided by Akrich:
‘It was in the light of that situation … [that the Court in Akrich had been asked] what measures the Member States were entitled to take in order to combat steps taken by members of the family of a Community national who did not meet the conditions laid down by national law for entry and residence in a Member State.’
What is most directly important is that the Court found no difficulty in Ms Jia seeking to switch from one status under national immigration rules (as a visitor) to residency under the terms of European community law.
With regard to the meaning of dependency, the Court found that the member state was entitled to look at the material support being provided to the relative in their country of origin, or the member state where the application was being made, in order to determine that the support was being provided and was needed to meet essential needs. There was no set format for providing such evidence, and it could be provided by any means that was appropriate to demonstrating the existence of dependency.
How does this all impact on the UK Home Office’s interpretation of European community law?
As suggested above, the wider questions raised in Akrich--namely, the circumstances under which lawful residence in another member state will be generally required--have not been resolved by Jia. They will have to be decided in another case. What the Court does quite clearly say in Jia, however, is that Akrich cannot be given the wide reading that is frequently (and enthusiastically on the part of the UK Home Office) contended for.
Jia shows very clearly indeed that the UK is not entitled to implement a blanket requirement for previous lawful residence in another member state as a condition precedent for the grant of a residence permit to a non- member state dependent relative seeking to remain on the basis of their dependency on an EEA national exercising free-movement rights in the UK. Very importantly, the Court found no difficulty in Ms Jia switching from one status that was lawful (without defining the requirements of such) under national law to a residence permit without Ms Jia having to return to her country of origin to make the application.
What is most directly called in to question here is the insistence in the Immigration (European Economic Area) Regulations 2006, which seek to give effect to the UK’s obligations under European community law, that ‘extended family members’ (as defined in regulation 8) must show, in order to qualify for a permit, that they resided in another member state as a dependent relative or member of the household of the community national now exercising rights of free movement in the UK. At the time of writing of this article, no changes had been made to the 2006 Regulations or the Border and Immigration Agency (BIA)’s European Casework Instructions, which give guidance on Home Office interpretation of the regulations and obligations under community law, to take account of the Court’s judgement in Jia.
