Pedro v Secretary of State for Work and Pensions

The appellant is a 62 year old Portuguese national. She came to the United Kingdom in 2004 to join her son Samora. She has lived with him ever since. He has worked in the United Kingdom. He has also claimed Job Seeker’s allowance when unemployed. The appellant has for the most part been financially dependent upon him. Until her 60^th birthday, on 9^th January 2007, she claimed Job Seeker’s Allowance. When she became ineligible for that, she claimed State Pension Credit. On 11^th June 2007 that was refused. The Secretary of State said that she did not fulfil the definition of being “in Great Britain.” On 13^th December 2007 the Social Security Appeal Tribunal ruled that Secretary of State was wrong; she should have been treated as “in Great Britain” as the dependent family member of an EU national who had retained worker status under the terms of the Citizenship Directive (2004/38/EC). On 31^st July 2008 Deputy Commissioner Ramsay allowed the Secretary of State’s appeal. This appeal against the decision of the Deputy Commissioner raises two issues: first, whether the appellant can be deemed to be “in Great Britain” within the meaning of Regulation 2(4) of the State Pension Credit Regulations 2002 (‘the Regulations’) on the grounds that she is a dependent family member of her son under Article 2 of the Directive; second, whether the legal test of “dependence” for the purposes of European law for those family members to whom the Directive applies should be assessed in the country of origin (here Portugal).

By section 1(2) of the State Pension Credit Act 2002:

“A person is entitled to state pension credit if –

(a)

he is in Great Britain …

(5)

Regulations may make provision for the purposes of this Act –

(b)

as to circumstances in which a person is to be treated as being or not being in Great Britain …”

By regulation 2 of the State Pension Credit Regulations 2002:

“(1)

A person is to be treated as not in Great Britain if, subject to the following provisions of this regulation, he is not habitually resident in the United Kingdom…

(2)

No person shall be treated as habitually resident in the United Kingdom…unless he has the right to reside in…the United Kingdom…other than a right to reside which falls within paragraph (3).

(3)

A right to reside falls within this paragraph if it is one which exists by virtue of, or in accordance with, one or more of the following –

(a)

regulation 13 of the Immigration (European Economic Area) Regulations 2006;

(b)

regulation 14 of those Regulations, but only in a case where the right exists under that regulation because the person is

(i)

a jobseeker for the purposes of the definition of ‘qualified person’ in regulation 6(1) of those Regulations, or

(ii)

a family member (within the meaning of regulation 7 of those Regulations) of such a jobseeker;

(c)

Article 6 of Council Directive No. 2004/38/EC; or

(d)

Article 39 of the Treaty establishing the European Community (in a case where the person is seeking work in the United Kingdom, the Channel Islands, the Isle of Man or the Republic of Ireland).”

By Article 18 of the European Community Treaty:

“1.

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 this Treaty and by the measures adopted to give it effect.”

By recitals 3, 5 and 6 of the Preamble:

“(3)

Union citizenship should be the fundamental status of nationals of the Member States when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self-employed persons…in order to simplify and strengthen the right of free movement and residence of all Union citizens…

(5)

The right of all Union citizens to move and reside freely within the territory of the Member States should, if it is to be exercised under objective conditions of freedom and dignity, be also granted to their family members, irrespective of nationality. For the purposes of this Directive, the definition of “family member” should also include the registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.

(6)

In order to maintain the unity of the family in a broader sense … the situation of those persons who are not included in the definition of family members … should be examined by the host Member State on the basis of its own national legislation, in order to decide whether entry and residence could be granted to such persons, taking into consideration their relationship with the Union citizen or any other circumstances, such as their financial or physical dependence on the Union citizen.”

By Articles 1-8:

“Article 1

This Directive lays down:

(a)

the conditions governing the exercise of the right of free movement and residence within the territory of the Member States by Union citizens and their family members;

(b)

the right of permanent residents in the territory of the Member States for Union citizens and their family members;

(c)

the limits placed on the rights set out in (a) and (b) on the grounds of public policy, public security or public health.

Article 2

For the purposes of this Directive:

1)

“Union citizen” means any person having the nationality of a Member State;

2)

“Family member” means:

(a)

the spouse;

(b)

the partner with whom the Union citizen has contracted a registered partnership…

(c)

the direct descendants who are under the age of 21 or are dependents 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);

3)

“Host Member State” means the Member State to which a Union citizen moves in order to exercise his/her right of free movement and residence.”

Article 3

1.

This Directive shall apply to all Union citizens who move to or reside in a Member State other than that of which they are a national, and to their family members as defined in point 2 of Article 2 who accompany or join them.

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 dependents 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 members 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.

Article 4

Without prejudice to the provisions on travel documents…all Union citizens with a valid identity card…and their family members who are not nationals of a Member State…shall have the right to leave the territory of the Member State and travel to another Member State.

Article 5

Without prejudice to the provisions on travel documents applicable to national border controls, Member States shall grant Union citizens leave to enter their territory…and shall grant family members who are not nationals of a Member State leave to enter their territory…

Article 6(1)

Union citizens have a right of residence on the territory of another Member State for a period of up to three months…

Article 7

Article 8 deals with “Administrative formalities for Union citizens.” By it:

“1…for periods of residence longer than three months, the host Member State may require Union citizens to register with the relevant authorities…

…5. For the registration certificate to be issued to family members of Union citizens…Member States may require the following documents to be presented:…

…(b) a document attesting to the existence of a family relationship…

…(d) in cases falling under points (c) and (d) of Article 2(2), documentary evidence that the conditions laid down therein are met;

(e)

in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin…certifying that they are dependents…”

By Article 25(1):

“Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.”

It is agreed that the Deputy Commissioner mistakenly understood that the reference in regulation 2(4)(d) to a family member “of a person referred to in sub-paragraph (a), (b) or (c) within the meaning of Article 2” was a reference to Article 2(2)(a), (b) or (c) of the Citizens Directive. It is in fact is a reference is to regulation 2(4)(a), (b) or (c). As Miss Mountfield on behalf of the appellant rightly submits (and it is a matter of law), whether a claimant is “not to be treated as not in Great Britain” under regulation 2(4) depends, among other things, on being a family member of a worker provided that he or she falls within the definition of Article 2 of the Citizens’ Directive, namely, as relevant here, a “dependent [my emphasis] direct” relative.

On the basis of her misreading of regulation 2(4), the Deputy Commissioner wrongly found that the appellant could not be a family member for the purposes of Article 2(2)(d) of the Directive. However, although unnecessary for her decision, the Deputy Commissioner went on to consider the issue of dependency. In deciding that the appellant was not “dependent,” the Commissioner referred to three decisions of the European Court of Justice given under earlier European legislation, namely Centre Public D’aide Sociale de Courcelles v Lebon C-316/85 [1987] ECR 2811 (“Lebon”), Chen v Secretary of State for the Home Department C-200/02 [2005] QB 325 (“Chen”), and Jia v Migrationsverket C-1/05 [2007] QB 545 (“Jia”).

The Deputy Commissioner said that:

“What an analysis of Lebon, Chen and Jia shows is that the court focussed on the factual situation: the only question was whether the family member was in fact supported in such a way as to be properly regarded as a dependent. In paragraph 37 of the Jia decision the court states:

‘In order to determine whether the relatives in the ascending line of the spouse of a community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they applied to join the community national…’

It has never been suggested in this case that the claimant was dependent on her son before she came to join him in the United Kingdom. The evidence is that the claimant worked part-time in Portugal and received certain State benefits there… Although the Secretary of State disputes whether the Claimant has been a dependent since coming to the United Kingdom, I think the biggest problem for the claimant in establishing that she is a dependent of her son is that the need for material support did not exist in her State of origin…”

The fundamental issue in this appeal is whether in order to succeed in her claim the appellant had to show a need for material support in Portugal, or whether it was sufficient that she has become dependent on her son since leaving Portugal and in the United Kingdom.

Miss Mountfield submitted that while the Citizens’ Directive derived from previous European Union legal provisions on free movement, it went further. In doing so she relied upon the content and wording of the Directive and the purpose lying behind it. The express purpose of the Directive, she submitted, is clearly set out in the third recital of the Preamble. It is to simplify, and, significantly, to “strengthen the right of free movement and residence of all Union citizens.” The reference in the fifth recital of the Preamble to “objective conditions of freedom and dignity…to family members” is a reference back, she submitted, to the right of freedom of movement for workers under the European Treaty.

In further support of her submission that the purpose of the Directive includes strengthening previous rights, Miss Mountfield cited the inclusion of a registered partner as a possible family member. Miss Mountfield too drew our attention to the obligation on a Member State to examine its legislation in cases involving financial dependence of a non-family member under the sixth recital of the Preamble.

Miss Mountfield submitted that considerable force is lent to her submissions by what was said by the European Court of Justice in two cases, Minister Voor Vereemdelingenzaken en Integratie v R.N.G. Eind Case C-291/05 and Metock and Others v Minister for Justice, Equality and Law Reform [2009] QB 318. The second, she submitted, has particular importance, based as it is on the Directive. I shall come to those cases when considering the authorities in chronological order.

An important element of Miss Mountfield’s submissions is the contrast between the greater rights given under Article 3(1) to those family members who accompany or join the worker as compared with the lesser rights granted to other family members under Article 3(2). The derived rights given to a family member are considerable. There is a right of exit and entry under Articles 4 and 5 and the right of residence for more than 3 months under Article 7(1). Other family members, do not have the derived rights provided to Article 2(2) family members. There is merely a duty on the host member State by national legislation to facilitate entry and residence and a requirement to justify denial of entry or residence.

The difference in language between articles 2 and 3 is significant, submitted Miss Mountfield. Article 2(2)(d) says nothing as to when or how the dependency arose. Article 3(2)(a) on the other hand requires actual dependency at a particular time and place. That difference is reflected in the different administrative formalities required by Article 8. All that Article 8(5)(d) requires for family members falling within Article 2(2)(d), is (as relevant here), documentary evidence that the person is a “dependent direct relative.” On the other hand, any other family members are required, under Article 8(5)(e) to produce a document from the relevant authority in the country of origin.

Under Article 17, the worker’s right to permanent residence is established if he has lived in the Member State for more than three years and has worked for at least the preceding 12 months. Those rights would be affected if the worker had to return to his home State to look after his dependent mother. It is artificial to look at the position in terms of when the worker takes up his job. It is artificial to fix it by an arbitrary time and place. Barriers to family unification are barriers to free movement, Miss Mountfield submitted.

Mr Blundell, on behalf of the Secretary of State, submitted that the language of Articles 2(1) and 3(1) supported the interpretation of the Deputy Commissioner. Article 3(1) applies the benefits of the Directive to Article 2(2) family members of Union citizens. Article 3(1) only applies those benefits where the family member accompanies or joins the Union citizen (my emphasis). A person cannot be a family member so as to accompany or join in the first place, unless she is dependent. That inevitably must mean dependent in the State of origin (as relevant here) before accompanying or joining the Union citizen.

He also submitted that while it is noteworthy that in the previous legislation the distinction between the two sorts of family members was present, it went to the means of proof and no further. It was not determinative.

The cases reflect, as Miss Mountfield submitted, the tension between on the one hand, the right to freedom of movement and, on the other, the question of strict immigration controls.

In Lebon Articles 7(2) and 10(1) of Regulation 1612/68 were considered. That regulation concerned “freedom of movement for workers within the Community.” It was not repealed by Directive 2004/38, but amended.

By Article 7:

“1.

A worker who is a national of a Member State may not, in the territory of another Member State, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work…and should he become unemployed, reinstatement or reemployment.

2.

He shall enjoy the same social and tax advantages as national workers…”

By Article 10:

“1.

The following shall, irrespective of their nationality, have the right to install themselves with a worker who is a national of one Member State and who is employed in the territory of another Member State:

(a)

his spouse and their descendents who are under the age of 21 years or are dependents;

(b)

dependent relatives in the ascending line of the worker and his spouse.

2.

Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 if dependent on the worker referred to above or living under his roof in the country whence he comes.”

In that case the claimant and her retired father upon whom she depended for support were French but lived in Belgium. He had remained in Belgium after he retired. She, having worked in France for two years, returned to Belgium. She had no work. She claimed subsistence in Belgium. The court held that [22-4]:

“22.

Article 10(1) and (2)…must be interpreted as meaning the status of a dependent member of a worker’s family is a result of a factual situation. The person having that status is a member of the family who is supported by the worker and there is no need to determine the reasons for recourse to the worker’s support or to raise the question whether the person concerned is able to support himself by taking up paid employment.

23.

That interpretation is dictated by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly … moreover it corresponds to the wording of the provision in question …

24 … the status of dependent member of a worker’s family, to which Article 10(1) and (2) of [the] Regulation refers, is the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker’s support.”

The Advocate-General had said ([23] of his Opinion) that:

“…it cannot be ruled out that a restricted interpretation would have adverse effects on the right to freedom of movement for it may be assumed that workers frequently remain where they worked for the longest period if in the case of any activity pursued abroad they can only do so subject to considerable restrictions.”

An issue in Chen was whether an adult parent could be dependent on a minor child, for the purposes of Article 1(2)(b) of Directive 90/364. By Article 1(1):

“Member States shall grant the right of residence to nationals of Member States…and to members of their families as defined in paragraph 2…

…2. The following shall, irrespective of their nationality, have the right to install themselves in another Member State with the holder of the right of residence:

(a)

his or her spouse and their descendents who are dependents;

(b)

dependent relatives in the ascending line of the holder of the right of residence and his or her spouse.”

By Article 2:

“1.

Exercise of the right of residence shall be evidenced by means of the issue of…a Residence permit…

…For the purposes of issuing the residence permit or document, the Member State may require only that the applicant present a valid identity card or passport and provide proof that he or she meets the conditions laid down in Article 1.

2.

Articles 2, 3, 6(1)(a) and (2) and Article 9 of Directive 68/360/EEC shall apply mutatis mutandis to the beneficiaries of this Directive…”

Directive 68/360 concerned “the abolition of restrictions on the movement and residence within the Community for workers of Member States and their families.” By Articles 1-5:

“Article 1

Member States shall…abolish restrictions on the movement and residence of nationals of the said States and of members of their families to whom Regulation 1612/68 applies.”

A mother sought to claim dependence upon her very young child, to whom she had deliberately given birth in Northern Ireland so that the child would be an Irish citizen, and hence entitled to reside in the United Kingdom as a Union citizen enjoying services there. The court held [42]:

“[that] the…Directive…which guarantees “dependent” relatives in the ascending line of the holder of the right of residence the right to install themselves with the holder of the right of residence, regardless of their nationality, cannot confer a right to residence on a national of a non-member in Mrs. Chen’s situation either by reason of the emotional bond between mother and child or on the ground that the mother’s right to enter and reside in the United Kingdom is dependent on her child’s right of residence.

43 According to the case law of the court, the status of “dependent” member of the family of a holder of a right of residence is a result of a factual situation characterised by the fact that material support for the family member is provided by the holder of the right of residence …”

Jia concerned Regulation 1612/68 (above) and Directive 73/148.

By Article 1 of Directive 73/148:

“1.

The Member States shall, acting as provided in this Directive, abolish restrictions on the movement and residence of:

(a)

nationals of a Member State who are established or who wish to establish themselves in another Member State in order to pursue activities as self-employed persons, or who wish to provide services in that State;

(b)

nationals of Member States wishing to go to another Member State as recipients of services;

(c)

the spouse and the children under twenty-one years of age of such nationals, irrespective of their nationality;

(d)

the relatives in the ascending and descending line of such nationals and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality.

2.

Member States shall favour the admission of any other member of the family of a national referred to in paragraph 1(a) and (b) or of the spouse of that national, which member is dependent on that national or spouse of that national or who in the country of origin was living under the same roof.”

By Article 3:

“1.

Member States shall grant to the persons referred to in Article 1 the right to enter their territory merely on production of a valid identity card or passport.

2.

No visa or equivalent requirement may be demanded save in respect of members of the family who do not have the nationality of the Member State…”

Article 4 provided for the granting of the right of permanent residence.

By Article 6:

“An applicant for a residence permit or right of abode shall not be required by a Member State to produce anything other than the following, namely:

(a)

the identity card or passport with which he or she entered its territory;

(b)

proof that he or she comes within one of the classes of person referred to in Articles 1 and 4.”

The facts were unusual and very different from the present case. Chinese parents-in-law of a German national who worked on a self-employed basis in Sweden sought to establish their dependence on the German national for the purposes of Directive 73/148. A dependency only arose in Sweden because the parents’ income in China was insufficient to live off in Sweden. There was no question of any dependency in China. As presently relevant, the questions posed to the court were:

“Is article 1.1(d) of Directive 73/148/EEC to be interpreted as meaning that ‘dependence’ means that a relative of a citizen of the Union is economically dependent on the citizen of the Union to attain the lowest acceptable standard of living in his country of origin…or where he is normally resident?

…Is article 6(b) of Directive 73/148/EEC to be interpreted as meaning that the member states may require a relative of a citizen of the Union who claims to be dependent on the citizen of the Union…to produce documents…which prove that there is a factual situation of dependence?”

In his Opinion the Advocate-General summarised the relevant issues in these terms [21 and 22]:

“The applicant considers that the notions of “dependence” and reaching the lowest acceptable standard of living are connected. According to her, “dependence” implies that the person who has a right of residence actually assumes responsibility for the support of the family member. She maintains that she has adequately demonstrated that she is indeed dependent on her son and daughter-in-law.

The Swedish Government submits that dependence must be seen in relation to the situation in the country of origin and that there must be a real need for regular financial support. Otherwise the condition laid down in article 1(1)(d) of Directive 73/148 would be deprived of its useful effect given the fact that is designed to limit the circle of family members eligible for staying with the migrant Community citizen…The condition was also expressly retained in Directive 2004/38/EEC…”

The court said that [34-43]:

“34.

Article 1(1)(d) of Directive 73/148 applies only to “dependent” relatives in the ascending line of the spouse of the member state…

35.

According to the case law of the Court of Justice, the status of “dependent” family member is the result of a factual situation characterised by the fact that material support for that family member is provided by the Community national who has exercised his right of free movement or his spouse: see…Lebon…and…Chen…

36.

The court has also held that the status of dependent family member does not presuppose the existence of a right of maintenance, otherwise that status would depend on national legislation, which varies from one case to another: Lebon’s case…there is no need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated in particular by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly: Lebon’s case…

37.

In order to determine whether the relatives in the ascending line of the spouse of a Community national are dependent on the latter, the host Member State must assess whether, having regard to their financial and social conditions, they are not in a position to support themselves. The need for material support must exist in the State of origin of those relatives or the State whence they came at the time when they apply to join the Community national.

38.

That is the conclusion that must be drawn having regard to Article 4(3) of Council Directive 68/360/EEC…according to which proof of the status of dependent relative in the ascending line of a worker or his spouse within the meaning of Article 10 of Regulation No 1612/68 is to be provided by a document issued by the competent authority of the ‘State of origin whence they came’, testifying that the relative concerned is dependent on the worker or his spouse. Despite the lack of precision as to the means of acceptable proof by which the individual concerned can establish that he falls within one of the classes of persons referred to in Articles 1 and 4 of Directive 73/148, there is nothing to justify the status of dependent relative in the ascending line being assessed differently according to whether the relative is a member of the family of a worker or a self-employed worker.

39.

In accordance with Article 6(b) of Directive 73/148, the host Member State may require proof that the applicant comes within one of the classes of person referred to in particular in Article 1 of that directive…

41.

With regard to Article 6 of Directive 73/148, the Court has held that, given the lack of precision as to the means of acceptable proof by which the person concerned can establish that he or she comes within one of the classes of person referred to in Articles 1 and 4 of that directive, it must be concluded that evidence may be adduced by any appropriate means (see, inter alia, Case C-363/89 Roux [1991] ECR I-1273, paragraph 16, and Case C-215/03 Oulane [2005] ECR I-1215, paragraph 53).

42.

Consequently, a document of the competent authority of the State of origin or the State from which the applicant came attesting to the existence of a situation of dependence, albeit appearing particularly appropriate for that purpose, cannot constitute a condition for the issue of a residence permit, while a mere undertaking from a Community national or his spouse to support the family member concerned need not be regarded as establishing the existence of that family member’s situation of real dependence.

43.

In those circumstances, the answer to Question 2(a) and (b) must be that Article 1(1)(d) of Directive 73/148 is to be interpreted to the effect that ‘dependent on them’ means that members of the family of a Community national established in another Member State within the meaning of Article 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they apply to join the Community national. Article 6(b) of that directive must be interpreted as meaning that proof of the need for material support may be adduced by any appropriate means, while a mere undertaking from the Community national or his or her spouse to support the family members concerned need not be regarded as establishing the existence of the family members’ situation of real dependence.”

Miss Mountfield suggested there is an internal contradiction between what was said by the court in paragraph 36 confirming Lebon and what subsequently follows, in particular in paragraphs 37 and 43. She submitted that the apparent contradiction was removed or explained by the context in which the decision was given. It concerned the explicit procedural requirements of Article 4(3) of Directive 68/360, which stated that proof of the status of dependant relative in Regulation 1612/68 was to be proved by a document issued by the competent authority of the State of origin. That was a necessary condition for entry of an ascendant relative. The Citizens’ Directive contains no such requirement for immediate family members. That, she submitted, was a highly material aspect of simplifying and strengthening the right of free movement.

Mr. Blundell submitted that a number of principles can be extracted from the judgment in Jia. Among them, dependency must exist in the State of origin of the family members concerned or the State from which they have come. This must be assessed at the time when they apply to join the Community national. There is no basis for distinguishing between the family member of a worker and the family member of a self-employed person in this regard.

Further, he submitted that Jia cannot be simply explained on the basis of the particular legislative framework with which it was dealing. It was not directly concerned with Article 4.3 of Directive 68/360. It expressly disavowed such an approach. Directive 68/360 (by cross-reference to Regulation 1612/68), Directive 73/148 and Directive 2004/38 (the Citizens Directive) all refer to relatives in the ascending line who are dependent simpliciter. Jia dealt with the question of location and timing as a matter of general principle. Paragraph 37 indicates that the court analysed the location and timing of requirements independently of the particular requirements of the provisions it was considering in Jia.

On 2 July 2009 the Commission issued “Guidance for better transposition and application of Direction 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States”. It is said to:

“…provide guidance to Member States on how to apply the Directive…on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States correctly; with the objective of bringing a real improvement for all EU citizens and of making EU an area of security, freedom and justice.”

Paragraph 2.1.4 deals with dependent family members. It states:

“In order to determine whether family members are dependent, it must be assessed in the individual case whether having regard to their financial and social conditions, they need material support to meet their essential needs in their country of origin or the country from which they came at the time when they applied to join the EU citizen (i.e. not in the host Member State where the EU citizen resides). Judgments on the concept of dependency of the court did not refer to any level of standard of living for determining the need for financial support by the EU citizen.”

That part of the guidance refers to Lebon and Jia.

There is a “table of correspondence between Directive 2004/38/EC and current legislation on free movement and residence of Union citizens within the EU.” The only modification regarding Article 2.2(d) is said to be “The inclusion of the dependent direct ascendants of the registered partner in the concept of family member is new.” As to Article 3.2, the table notes that the provision is based on Article 10.2 of Regulation 1612/68 and Article 1.2 of Directive 73/148. It states that “The facilitation of entry and of residence of family members not covered by Article 2 where serious health grounds so require, is a novelty of this Directive.” In both cases there is no reference to any change or distinction in terms of the location or timing of dependence.

In Eind, the European Court of Justice was considering Regulation 1612/68. Mr Eind was a Netherlands national. In June 2001 both he and his daughter (from Surinam) were given rights to reside in the United Kingdom. Her right to reside was as a member of the family of a Community worker. On 17^th October 2001 father and daughter returned to the Netherlands, where, due to ill health, he did not work. It was said that because her father had no rights as he was out of work, the daughter had no derived rights as a family member of a Community national to enable her to obtain a residence permit. In its decision the European Court of Justice said [35-9]:

“35 A national of a Member State could be deterred from leaving that Member State in order to pursue gainful employment in the territory of another Member State if he does not have the certainty of being able to return to his Member State of origin irrespective of whether he is going to engage in economic activity in the latter State.

36 That deterrent effect would also derive simply from the prospect, for that same national, of not being able, on returning to his Member State of origin, to continue living together with close relatives, a way of life which may have come into being in the host Member State as a result of marriage or family re-unification.

37 Barriers to family re-unification are therefore liable to undermine the right to free movement which the nationals of the Member Sates have under Community law as a right of a Community worker to return to the Member State of which he is a national cannot be considered to a purely internal matter…

39 A person in the situation of Miss Eind may enjoy [the right to install herself with her father] so long as she has not reached the age of 21 years or remains a dependant of her father.”

KG (Sri Lanka) and AK (Sri Lanka) v Secretary of State for the Home Department [2008] Imm AR 343, concerned the applications of the appellants for residence in the United Kingdom as other family members of a European Union citizen pursuant to Article 3 of Directive 2004/38. The judgment of the Court of Appeal was handed down before that of the European Court of Justice in Metock, to which I shall shortly come. In light of what was said in Metock, some of the conclusions have had to be reconsidered, as the subsequent case of Bigia and others v Entry Clearance Officer [2009] EWCA Civ 79 makes plain.

The first appellant relied on the status of his brother, who had become a German citizen in 2001, before moving to the United Kingdom in January 2006. The second appellant relied upon the status of his cousin, who had become a French citizen in 2000 before moving to the United Kingdom in 2005. Both appellants had come to the United Kingdom direct from Sri Lanka. Neither case concerned Article 2 family members.

In the course of his judgment, with which Sedley and Hooper LJJ agreed, Buxton LJ dealt with the “origins of the Citizens’ Directive: movement within the Community”:

“17…new Community legislation was needed because of the introduction of Community citizenship, the rights of movement attaching to which have to be added to the rights previously granted to limited categories of nationals of member states, most obviously migrant workers. That apart, however, the assumptions and procedures of Directive 2004/38 do not mark a fundamental change from the previous state of the law. In particular, as its recitals make clear, Directive 2004/38 proceeds not by replacing but by amending the workers’ Regulation 1612/68…

…33. Put shortly, Community law recognises rights of movement on the part of relations not in order to support family values as such, but in order to make real the right of movement of the Union citizen: who may be deterred from exercising that right if he cannot take his relevant family with him. That is the constant theme of the cases that we were shown in support of the attempt to assert the doctrine of family reunion…

…40. The upshot is that it is necessary to approach the interpretation of Directive 2004/38 on the basis of the jurisprudence set out above on the exercise of rights of movement by Union citizens, without presuppositions about larger objectives of family reunification.”

At [75], Buxton LJ referred to paragraph 43 of the judgment in Jia as authority for the proposition that “on no view is dependency in the United Kingdom relevant.” Of course, in doing so, he was not concerned with the sort of considerations advanced to us in respect of Article 2 family members.

Metock, as it seems to me, is important. In it the European Court of Justice considered Article 3(1) of the Citizens’ Directive in the context of legislation in Ireland which required a national of a non-member country who was the spouse of a Union citizen residing in that Member State, lawfully to have been resident in another Member State before arriving in the host Member State. The court said that [50]:

“As Article 3(1) of [the Citizens’] Directive … states, the Directive applies to all Union citizens who move to or reside in a Member State other than that in which they are a national, and to their family members as defined in Article 2(2) of the Directive who accompany them or join them in that Member State. The definition of family members in Article 2(2) does not distinguish according to whether or not they have already resided lawfully in another Member State.”

As to the purpose of the Directive, the court, having referred to the third recital, said that [59]:

“…it aims in particular to “strengthen the right of free movement and residence of all citizens”, so that Union citizens cannot derive fewer rights from that Directive than from the instruments of secondary legislation which it amends or repeals.”

It said further that [84-94]:

“84 Having regard to the context and objectives of [the Citizens] Directive … the provisions of that Directive cannot be interpreted restrictively, and must not in any event be deprived of their effectiveness …

85 Articles 6 and 7 of Directive 2004/38EC provide that the Directive is to apply to all Union citizens who move or reside in a member state other than that of which they are a national, and to the family members as defined in article 2(2) of the Directive who accompany or join them.

86 Articles 6 and 7…likewise require that the family members of a Union citizen who are not nationals of a member state “accompany” or “join” him in the host member state in order to enjoy a right of residence there.

87 First, none of those provisions requires that the Union citizen must already have founded a family at the time when he moves to the host member state in order for his family members who are nationals of non-member countries to be able to enjoy the rights established by the Directive.

88 By providing that the family members of the Union citizen can join him in the host member state, the Community legislature, on the contrary, accepted the possibility of the Union citizen not founding a family until after exercising his right of freedom of movement.

89 That interpretation is consistent with the purpose of [the] Directive, which aims to facilitate the exercise of the fundamental right of residence of Union citizens in a Member State other than that of which they are a national. Where a Union citizen founds a family after becoming established in the host Member State, the refusal of that Member State to authorise his family members who are nationals of non-Member countries to join him there would be such as to discourage him from continuing to reside there and encourage him to leave in order to be able to lead a family life in another Member State or in a non-Member country.

90.

It must therefore be held that nationals of non-Member countries who are family members of a Union citizen derive from [the Citizens’] Directive … the right to join that Union citizen in the host Member State whether he has become established there before or after founding a family …

93…in light of the necessity of not interpreting the provisions of [the Directive]….restrictively and not depriving them of their effectiveness, the words “family members [of Union citizens] who accompany…them” in Article 3(1) of that Directive must be interpreted as referring both to the family members of a Union citizen who entered the host Member State with him and to those who reside with him in that Member State, without it being necessary, in the latter case, to distinguish according to whether the nationals of non-Member countries entered that Member State before or after the Union citizen or before or after becoming his family members

94 Application of the [the] Directive solely to family members of a Union citizen who “accompany” him” or “join him” is thus equivalent to limiting the rights of entry and residence of family members of a Union citizen to the member state in which the citizen resides.”

In Bigia this court considered the application of the Citizens’ Directive (and the Immigration (European Economic Area) Regulations 2006). Some of the appellants in respect of whom the issue of dependency arose were direct descendents over the age of 21. One was an adult daughter of a Union citizen. Maurice Kay LJ, with whose judgment Tuckey LJ and the Master of Rolls agreed, said that [24]:

“…under Article 2.2(c) of the Directive, she is a “family member” provided that she is a dependent of her father. If she satisfies that test, again, and in the light of Metock, it matters not that she has no personal history of residence in the EEA. In KG and AK, the test of dependency was taken to be as stated in the ECJ in Jia (paragraph 43), namely that family members

“…need the material support of [the Union citizen] or his or her spouse in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they apply to join the [Union citizen].”

On the facts of that case, the dependency had to be in India if it was to exist. As Maurice Kay LJ put it [33]:

“Although the Jia test is a demanding one…it is plainly satisfied in this case.”

As to the purpose of the Citizens’ Directive, he said that [42]:

“The policy, even before the Citizens’ Directive, was to recognise “the importance of ensuring the protection of the family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the EC treaty” (Metock paragraph 59). The scheme of the Directive is then to distinguish between Article 2.2 “family members” of the Union citizen and [other family members]. The former, if they accompany or join the Union citizen when he exercises his rights of free movement and residence, benefit from his rights and from the policy that he is not to be discouraged from exercising them by national immigration rules that impact adversely on his “family members.” [Other family members] on the other hand are provided with less protection.”

Maurice Kay LJ was of the view that in respect of other family members Buxton LJ’s analysis in KG and AK to the effect that “the tight relationship between the exercise of rights by the Union citizen and the requirement that the OFMs accompanying or joining him should have been his dependents or members of his household in the country from which they come very strongly suggests that the relationship should have existed in the country from which the Union citizen has come, and thus have existed immediately before the Union citizen was accompanied or joined by the [other family member]” was not undermined by Metock. He went on to say [43]:

“…the emphasis remains on the elimination of obstacles to the Treaty rights of the Union citizen rather than a policy of family reunion…I accept…that it is only those [other family members] who have been present with the Union citizen in the country from which has most recently come whose ability or inability to move with him could impact on his exercise of his primary right. This also explains Buxton LJ’s requirement of very recent dependency or household membership. Historic but lapsed dependency or membership is irrelevant to the Directive policy of removing obstacles to the Union citizen’s freedom of movement and residence rights. Unlike Article 2.2 “family members,” it cannot be said of them that “the refusal…to grant them a right of residence is equally liable to discourage [the] Union citizen from continuing to reside in that Member State (Metock, paragraph 92). Accordingly, I conclude that these aspects of Article 3.2(a) are not affected by Metock and that, in those respects, KG and AK remains good law.”

In Metock the European Court of Justice considered and applied the precise language of Article 2(2). The third recital of the Preamble was relied upon to support the proposition that the Directive is intended to “strengthen [my emphasis] the right of free movement.” It made plain that the rights given under the Directive should not be applied restrictively; that they had to be effective.

As Metock suggests, if a particular interpretation of the Directive would mean that a national of a Member State might realistically be discouraged from leaving that state and going to another Member State to work or if, when working or having worked, in another Member State, he might be encouraged to leave, that would not be consistent with the purpose of the Directive, or give effect to it. It seems to me there is substance in Miss Mountfield’s submission that the Secretary of State’s interpretation of Articles 2(1) and 3(1) could realistically result in a person deciding not to move to another Member State to work or, having moved, to be encouraged to return to his state of origin. A Union citizen who wishes to work in another Member state may be deterred from doing so if he knows that his elderly, but not then dependent mother, will not be regarded as his dependent for the purposes of Article 2(2) if she joins him and later becomes dependent upon him. If, in spite of that, he has left his state of origin, he may then be encouraged to leave his host state for his state of origin to enable his then dependent mother to be supported. As Eind and Metock make clear, no impediment should be placed in the way of a Union citizen which might realistically deter him from choosing to work in (for example) a city in another Member State, as opposed to one in his state of origin. If in the first case his dependent mother would not be supported and in the second she would, that would in my view amount to such an impediment.

Moreover, if the Secretary of State is right, were Mrs. Pedro to have become dependent upon her son in Portugal and he to have supported her, she could have come to the United Kingdom to join him as a dependent and enjoy her derived benefits, yet if she becomes dependent in the United Kingdom she cannot. It is difficult to see a principled distinction between the two situations.

I do accept, as Mr. Blundell submitted, that the distinction between “family members” under article 2(1) of Directive 2004/38 and “any other family members” in article 3(2) is not new. That is clear from the previous European legislation. It was present in the legislation considered by the court in Jia. It is clear too that in both KG and AK and Bigia, the Court of Appeal proceeded on the basis that Jia was still good law. However, in neither case was the present argument raised. KG and AK did not concern Article 2 family members. When in Bigia [33] Maurice Kay LJ applied the test in Jia to the article 2(2) family member, he did so, as I have indicated, in the context of the alleged support having been provided in India by Mr. Bigia in circumstances where that was the only basis of the dependency alleged.

As Lebon made clear, whether someone has the status of a dependant family member is a question of fact. Such a status is characterised by the material support for that family member provided by the Union national who has exercised his free right of movement. Why the family member is dependent does not matter. The fact that Jia itself concerned the derived rights of the alleged dependents of a self-employed citizen is not significant. In its reasoning the Court relied on Lebon and article 4(3) of Directive 68/360, which did not concern those who are self employed. There is no justification in principle for distinguishing between the two for present purposes.

When in Jia [37] the court referred (as relevant to the present case) to the need for material support having to exist in the state of origin, it did so on the basis of what was said in article 4(3)(e) of Directive 68/360. It said as much in paragraph 38. I do not accept Mr. Blundell’s submission to the contrary. What was said in that Article may be contrasted with what is said in Article 8(5)(d) of the Citizens’ Directive. That says nothing to suggest that documentary evidence of an Article 2(2)(d) dependency need emanate from the state of origin. That is in specific contrast to “other family member cases,” where under Article 8(5)(e) the relevant authority of the country of origin is referred to. The basis of the decision in Jia, insofar as it concerns family members, therefore falls away in a case involving the Citizens’ Directive.

In short, the basis of the conclusion in Jia as to the need for material support to exist in the state of origin is not present in a case such as the present brought under the Citizens’ Directive. It lends support to Miss Mountfield’s contention that that Directive did strengthen the right of free movement.

Moreover, on the rather extreme facts of Jia, the question revolved around the basis on which dependency was to be assessed; in particular, whether by reference to the country of origin or of normal residence. That is very different from a case such as the present.

It does not seem to me relevant that Jia was decided after the Citizens’ Directive became law. The decision was not taken on the basis of it.

Article 2(2) does not specify when the dependency has to have arisen. Neither does it require that the relative must be dependent in the country of origin. Article 3(2)(a), on the other hand, requires actual dependency at a particular time and place. That difference, as I have said, is reflected by Article 8(5)(d) as compared with 8(5)(e). It cannot be an accident of drafting. It contemplates, as it seems to me, that where in an Article 2(2)(d) case reliance is placed on dependency, it can be proved by a document from the host state without input from the state of origin. Taking Article 2(2)(d) together with Article 8(5)(d), suggests that dependency in the state of origin need not be proved for family members. It is sufficient if, as is alleged here, the dependency arises in the host state. Such an interpretation reflects the policy of the Directive to strengthen and simplify the realisation of realistic free movement rights of Union citizens compatibly with their family rights. On the one hand, close family members of Union citizens can move freely with Union citizens who might otherwise be inhibited from exercising their rights of free movement. On the other, Member States are merely obliged, as Miss Mountfield put it, to give open-minded consideration to those extended family members who have demonstrable need. Such an interpretation, as well as being in accordance with the language of the Citizens’ Directive, is consistent with the approach of the European Court of Justice in Metock [84-9].

Metock too provides an answer to Mr. Blundell’s argument that the wording of Articles 2(2) and 3(1) means that the benefits can only apply to a family member who is a dependent when he accompanies or joins the Union citizen. Mr. Metock moved to join his wife before they married.

In short, I have concluded that proof of dependence by Mrs. Pedro on her son in the United Kingdom will suffice under Article 2(2)(d).

It follows that in my view the guidance promulgated by the European Commission is incorrect, at least insofar as it concerns facts such as the present.

I have considered whether a reference to the European Court is necessary. Primarily in the light of the guidance provided by the European Court of Justice in Metock, I have concluded it is not.

I have also concluded that it is not necessary to remit the case for a hearing on the issue of dependency. The Tribunal plainly found that the appellant became dependent on her son when she became 60 and her circumstances changed (see the final paragraph of the Appeal Tribunal’s decision notice).

In the circumstances, I would allow this appeal.