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.
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.
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.
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