A very recent decision of the UK Upper Tribunal (Immigration and Asylum Chamber) explores the scope of Article 3(2) of Directive 2004/38 and what constitutes an ‘other family member’ or OFM. The full text of the decision in Moneke and others (EEA – OFMs) Nigeria  UKUT 341 (IAC) issued on 22nd August 2011 is available here.
The case concerned a German national, of Nigerian origin, who was exercising his EU Treaty rights as a worker in the UK. An application was made for permission to reside in the UK for two of his dependants, relying on Article 3(2) of the Directive 2004/38. The German national had been providing the two applicants with financial support to Nigeria but had never lived with them in the same household. The application had been initially refused and appealed unsuccessfully, but was appealed further to the Upper Tribunal giving rise to these proceedings.
Article 3 (2) of Directive 2004/38 states:
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.
This Article therefore extends rights of free movement to other family members not covered in Article 2(2) of the Directive who include in summary: the spouse, partner, direct descendants under 21 of the EU national or spouse/partner, or dependant direct relatives in the ascending or descending line of the EU national or spouse/partner.
A core issue determined in Moneke was whether, to qualify as an ‘other family member’ for the purposes of Article 3 (2), the ‘other family member’ must be dependent on the EEA national and have resided together in the same household with the EEA national.
On this issue, Mr Justice Blake determined as follows: “A person claiming to be an OFM under Article 3(2) of Directive 2004/38/EC may either be a dependant or a member of the household of the EEA national: they are alternative ways of qualifying as an OFM.”
A second core issue assessed by Mr Justice Blake was whether the term “in the country from which they are from ”, as per Article 3 (2)(a), refers to either the EEA national or the other family member. He concluded that the term “they” was intended to mean the other family member, and the country from which they have come from means either their country of origin or the country from which they are arriving.
The Upper Tribunal took a purposive reading of the Directive. It was recognised that in an age of trans-national marriages, there will be increasing numbers of EEA families where the EEA national has not lived in the country where his spouse’s relatives live and concluded:
“We cannot accept in the absence of clear legislative words that enormous numbers of “foreign” OFM dependants are excluded from the scope of the Directive by the happenstance of international geography …
An interpretation that cuts all these applicants out of consideration in limine would appear to be discriminatory on the grounds of national origin without any justification for such an approach. We are entitled to interpret EU legislation in the light of the fundamental principles of EU law and these include the principle of non discrimination reflected for example in Article 21 of the EU Charter on Fundamental Rights.”
This decision provides some welcome clarification on the complex issue of which family members of EEA nationals qualify for the rights to enter and reside in a host member state with the EEA national. It also indicates that the scope is much broader than that currently being applied in this State.
Our own experience shows that the there is a lack of consistent approach from the Department of Justice in assessing and interpreting individual cases in respect of the Regulations and the Directive, particularly regarding the scope of inclusion with the various categories of family members. However, it must be accepted that it is a very complex area of EU Treaty Rights law, and the Moneke judgement highlights the varying interpretations by the UK courts also.
To add to the complexities, we have noted that there are a number of discrepancies between the Regulations and the Directive 2004/38. For example, the Regulations categorise family members into two groups; ‘qualifying family members’ and 'permitted family members'. These categories can be equated to those family members covered by Article 2(2) of the Directive and the ‘other family members' as covered by Article 3(2) of the Directive. While the Directive indicates that the host member state “shall" facilitate entry and residence rights in respect of both categories of family members, the Regulations distinguish between the two categories in this regard. The Regulations direct that the State “shall” allow a 'qualifying family member' to remain, while the State “may” allow a 'permitted family member' to remain.
Furthermore, the Directive includes partners of an EEA citizen in both Article 2 (2)(b) and Article 3 (2)(b), while the Regulations categorize partners as a permitted family member only. Thus, pursuant to the Regulations, a partnership must exist in the country from which the non EEA national have come from.
A basic principle of EU law, called Direct Effect, means that in the event of a discrepancy between an EU Law instrument and a national instrument transposing the EU law, an individual may rely directly on the EU law instrument when the rights it creates are sufficiently clear. Directive 2004/38 has been held to be directly effective in a previous case taken by this office - Gogolova & Ors -v- MJELR,  IEHC 131 (2008). On the basis of this principle, we can rely directly on the rights enunciated in the Directive, as opposed to the Directive.
It is also note worthy that there is a preliminary reference pending with the Court of Justice made by the Upper Tribunal in MR & Ors (EEA extended family members) Bangladesh  UKUT 449 (IAC) specifically on this issue. We are keeping an eye out for this case and will of course keep you updated!