EUTR and Dependent Family Members

CASE SYNOPSIS:

Secretary of State for the Home department V Muhammad Sazzadur Rahman, Fazly Rabby Islam and Mohibullah Rahman – Opinion of the Advocate General delivered March 27th 2012

 

We are frequently encountering cases concerning EU Treaty Rights Law relating to other family members and or so called permitted family members. The concept of dependency is often at the core of such cases many of which include dependent siblings of the spouse of the EU National who has already been permitted to reside in the State in conformity with Directive 2004/38EC. Many of our cases have proceeded to review stage for failure to establish that the non EEA family member is a ‘qualifying or permitted family member’ in accordance with the Directive. In other words, dependency has not been established. One of our cases concerns a 23 year old male suffering from brain damage pursuant to a life threatening operation he underwent in the State. His elder brother, who is the spouse of an EEA national lawfully residing in the State, together with his wife fully support the applicant both financially and emotionally. His medical bills and expenses are fully discharged by his brother and his brother’s wife who provide accommodation, money and full-time care to the applicant who remains unwell. We are currently awaiting a decision on whether the applicant will be permitted to remain in the State as a family member or a dependant on the EEA national and as a dependant on the spouse of the EEA national.

 

 

We draw your attention to last year’s decision of the ECJ in Rahman concerning the notion of a ‘dependant’ and Article 3 (2) of the Directive:

 

This case reviewed the conformity of UK legislation with Directive 2004/38EC.

 

The case involved a Bangladeshi national who married and Irish national who was working in the UK. His brother, half brother and nephew applied for residence permits in the UK as family members of a national of an EEA state.

 

Their original application was rejected by the Secretary of State for the Home Department (SSHD) and they appealed to the immigration judge who granted the application on the basis that they were dependants and directed that their case be considered in line 17(4) of the 2006 regulations which provides for the decision maker to exercise their discretion in such matters. The SSHD sought reconsideration of the case by the upper tribunal which decided to stay the proceedings stating that whilst the case raised a factual question as to whether or not there existed a situation of dependency, it also raised legal problems, the resolution of which required a clear understanding of the scope of the provisions of EU law. A number of different issues were raised.

 

 

The core issue was whether or no article 3(2) of the Directive requires a Member State to make legislative provision to facilitate entry to and or residence in a member state to the class of other family members who are not nationals of the European Union who can meet the requirements of article 10 (2) of that Directive?

 

Article 3(2) of the Directive stipulates that:

 

“ 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:

 

Any other family members, irrespective of their nationality (…) 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.

 

The Partner with whom the Union Citizen has a durable relationship, duly attested, The host Member State shall undertake and extensive examination of the personal circumstances and shall justify any denial of entry or residence to these people. “The court held that the ‘fundamental right to private and family life may, in principle be relied on by all categories of person mentioned in Article 3(2) of Directive 2004/38.’ The Court concluded that in this case Mr Rahman’s private and family life had been impaired by the failure of the UK authorities to issue residence permits to his brother, half brother and nephew.

 

It so follows that Art 3(2) ‘must be interpreted as requiring Member States to adopt the measures necessary to facilitate entry and residence in their territory for all persons coming within the scope of that provision. Additionally, the primary law of the EU ‘precludes a member state from refusing a national of a non member country who comes within the scope of that provision residence in its territory in the case where that national wishes to reside with a member of his family who is a Union citizen, where such a refusal has the effect of unjustifiably impeding the exercise of the Union citizen concerned to move freely within the territory of the member states or causes disproportionate impairment of his right o respect for private and family life.’

 

The Court surmised that Article 3(2) of Directive 2004 /38 must be interpreted to the effect that:

 

• It precludes national legislation which limits the scope of that provision to other members who resided in the same state as the Union national before the Union national came to the host Member State
• The notion of ‘dependent’ does not imply that dependency existed shortly before the Union national came to the Host Member state and..
• It does not preclude national legislation which makes entry and residence for a national of a non-members country subject to conditions as to the nature or duration of dependency, provided that those conditions pursue a legitimate objective, are appropriate for securing the attainment of that objective and do not go beyond what is necessary to attain it.

 

 

We will keep you posted as to our further developments on cases concerning dependent family members of EU nationals.

Referral to Court of Justice concerning the Right of Residence for the Non EEA parent of EU citizen child in Education in a Member State

Case  Study : Ms Olaitan Ajoke Alarape (the First Appellant) and Olukayode Azeez Tijani (the Second Appellant) –vs— The Secretary of State for the Home Department (respondent) and Aire Centre (third-party intervener)

We are waiting with interest to see the Court of Justice’s response from the UK referral in the above case.  The outcome could be of great assistance in clarifying and expanding upon the rights of residence established in the seminal cases of LB Harrow v Ibrahim C‑310/08 and Teixeira v London Borough of Lambeth and Secretary of State C-480-08.

In particular, the right of residence possessed through being a primary carer of the child in education of a former worker does not arise under Article 7 of the Directive but under other EU legislation. It is currently uncertain whether such a right of residence does or does not count towards the five years required for permanent residence. This question should be finally settled by the forthcoming judgment of the ECJ in Alarape and Tijani Case C-529/11.”

The facts of the Alarape case are as follows;

The Appellants were mother and son, and Nigerian nationals. They arrived in the UK illegally in 2001. In 2003, the first appellant married Mr. Salama, a French national, so the first and second appellants were given permission to reside until 2009. The couple then divorced in 2010.  Subsequently, the appellants applied for permission to reside based on the fact that Mr. Salama was exercising his EU Treaty Rights by working for 5 years. 

The second appellant is a student who intends to commence a course in PhD studies in Edinburgh.

The First Tier Tribunal (FTT) found that Mr Salama was not exercising his EU Treaty Rights because he had only produce evidence of employment from 2004-2006. The appellants therefore received a negative decision but they received permission to appeal

The findings made by the Upper Tribunal were as follows;

-          Mr. Salama hadn’t been exercising EU Treaty Rights, so there’s no error in law there. They don’t qualify for any of the protections of non-EU family members in the event of a divorce because he hadn’t been working.

-          Even though the son is over 21 and isn’t the child, but the step-child of Mr. Salama, his rights are recognized under Article 12 to have his education.

-          The FTT is unable to determine whether or not the first appellant is his “primary carer,” because there is no clear definition of primary carer. They enjoy a close relationship and he is financially dependent on his mother, but he lives in another city, is now 25, is healthy and able-bodied, and has entered into the labour market on his own before.

Queries of law referred to the Court of Justice:

-          For a parent to qualify as a “primary carer” so as to derive a right of residence from a child over 21 exercising a right of access to education under Article 12 Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011], is it necessary for that child to be (i) dependent on such a parent; (ii) residing in that parent’s household; and (iii) receiving emotional support from that parent?

-          In order to qualify for such a derived right of residence it is unnecessary for a parent to show that all three of the above circumstances obtain, is it sufficient to show that only one obtains or that only two obtain?

-          In relation to (ii) above, can there continue to be residence on the part of an adult student child in a common household with his parent(s) even when the former is living away from home for the duration of his studies (save for holidays and occasional weekends)?

-          In relation to (iii) above, is it necessary for the emotional support provided by the parent to be of a particular quality (viz. close or physically proximate) or is it sufficient if it consists in a normal emotional tie between a parent and an adult child?

-          Where a person has held an EU right of residence under Article 12 of Regulation No. 1612/68 [see now Article 10 Regulation (EU) No. 492/2011] for a continuous period of more than five years, does such residence qualify for the purposes of acquiring a right of permanent residence under Chapter IV of Directive 2004/38/EC (the Citizens Directive) on “Right of Permanent Residence”) and being issued with a residence card under Article 19 of the same Directive?

Brophy Solicitors

06.09.12

EU TREATY RIGHTS AND PERMANENT RESIDENCY – UK DEVELOPMENTS

CASE STUDY:  Idezuna (EEA - permanent residence) Nigeria [2011] UKUT 00474 (IAC) is a case concerning  the approach to be taken by the First and Upper Tribunals in deciding whether the non-EEA national family member (of an EEA national) has or has not acquired the right to reside permanently in the UK under Art 16 of Diretive 2004/38/EC which is transposed into UK law by Regulation 17 of the EEA Regulations. The right of permanent residency is acquired by EEA nationals and their family members who have resided in the UKfor a period of 5 years. 

In Idezuna the Nigerian Appellant married his spouse who was a national of Portugal in April 2004.  He had been given a 5-year residence card showing that he was the family member of an EEA national, which expired on the 13 September 2009.  Mr. Idezuna and his wife divorced in March 2010, and Mr Idezuna applied to the appropriate authoirties for a residence card showing that he was entitled to live in the UK permanently. 

Mr Idezuna’s application was refused.  The UK Border Agency said that he had not provided evidence showing that his Portuguese wife had been exercising her EU Treaty rights at the time of their divorce or that he had been living in the UK in accordance with the EEA Regulations for a period of 5 years.  

He appealed the decision to the First Tier Tribunal which upheld the UKBA’s decision, stating that Mr Idezuna had not shown that his ex wife had been exercising Treaty rights in the UK for the 5 years up to the divorce.  He had also not shown that he lived in the UK continuously after marriage. 

Subsequently, the Upper Tribunal found that the First Tier Tribunal judge had materially erred in law.  The judge had failed to appreciate that the Appellant had acquired the necessary 5 years living in the UK from the date of his marriage in April 2004 until April of 2009.  During this time his ex-wife had been in the UK"unbrokenly” exercising her EU Treaty rights.   The Immigration Judge’s error was in failing to include in his calculation of the 5 year period, time prior to the coming into force of the Directive.  (See Secretary of State for Work and Pensions v Lassal (2011) Imm AR 134, in which the ECJ had held that any interpretation of the continuous residence requirement such  that the first or last day of the period of five years' continuous residence had to fall after 30 April 2006 (when the Directive came into force) would be contrary to the purpose and effectiveness of the Directive.)

The Appellant had therefore acquired his right to permanent residence in the UK in April of 2009 (when he was still married to his wife). Whether or not he was living together with his wife for the whole of this period was irrelevant.  The fact that they both had been in the UK was important.  (See also Turkey [2011] UKUT 89 (IAC) (07 March 2011)  Regulation 15(1)(b) of the Immigration (European Economic Area) Regulations 2006 (UK) applies to those who entered a genuine marriage where both parties have resided in the United Kingdom for five years since the marriage; the EEA national‘s spouse has resided as the family member of a qualified person or otherwise in accordance with the Regulations and the marriage has not been dissolved. The ‘residing with’ requirement relates to presence in the UK; it does not require living in a common family home.)

The second matter to assess was whether or not Mr Idezuna had been living in the UK continuously since the date of marriage.  The Immigration Judge in the First Tier Tribunal had taken this point against Mr Idezuna without giving him an opportunity to comment on it.  In fact, there had been only two short absences which fell comfortably within those permitted by the Directive’s Article 16 (3) and Regulation 3 (2) of the transposed UK Regulations. 

The Tribunal made it clear to the First Tier Tibunal that the focus was not so much directed to the nature of the relationship between the non-EEA national family member of the EEA national. What had happened up to and after Mr Idezuna’s divorce, and what his wife had been doing at those times had in fact been wholly irrelevant to the question of whether he had the right to reside in the UK.

Brophy Solicitors
28.03.12

EU TREATY RIGHTS AND PERMANENT RESIDENCY

SUCCESSFUL APPLICATION FOR PERMANENT RESIDENCY UNDER EU TREATY RIGHTS LEGISLATION

We were delighted to receive a positive decision in a case concerning the non-EU spouse of an EU national who had separated from his wife in the State after almost 6 years of marriage. 

We submitted that our client was entitled to rely on Article 16 (the permanent residency article) of the Directive having resided with his wife in the State for 5 years.  He and his wife had not divorced and his wife remained a worker in the State.  We also sought to rely on Article 13 (retention of the right to reside) of the Directive given that our client has evidence of marriage to an EU national for 3 years with one year of continuous residency in the State.

Such applications present a series of problems.  When preparing this application, we discovered that Form EU 3 for Permanent Residency is completely inappropriate for a person in our client’s position. Both the non-EU applicant and his spouse/former spouse are requested to sign the form and the EU spouse is expected to provide 5 years worth of documentation to prove his/her residency and activities in the State.  Our client’s relationship had broken down and it was onerous and unjust to expect him to call on his wife for assistance with his application for permanent residency in the State.  We submitted that our client’s right to retain his residency in the State was on an individual basis in accordance with Article 13. 

One other glaring defect with such cases is that neither the Directive nor the Regulations provide for situations where spouses who have benefited under the Directive have separated and have not divorced.  We put forward that the deciding officer must act in accordance with our Constitution with a view to protecting spouses whose marital relationship has broken down but who have not divorced.  To decide otherwise would be contrary to the Constitution and the protection of the institution of marriage in this State. 

Our client has been a worker in the State for almost ten years.  We are pleased that the Minister sought to purposively construe the Regulations and Directive in light of our client’s circumstances.  Our client can now finally resolve his marital problems in the State and has been permitted to work and reside in the State for the next ten years.

Brophy Solicitors

11.08.11

ZAMBRANO UPDATE

AUSTRIAN REFERENCE TO COURT OF JUSTICE ON THE RIGHT OF THIRD COUNTRY NATIONAL FATHER OF UNIION CITIZEN CHILDREN TO RESIDE IN EU

The Austrian courts have made lodged a Preliminary Reference to the Court of Justice on the  25^th May 2011 in the case of Dereci and Others v Bundesministers fur Inneres. The reference is involves a request to the Court of Justice to clarify the findings in Zamrbano.

The facts of the case involve Mr Dereci, the first named applicant, who is a Turkish national. He arrived in the Member State without permission in 2001, and unsuccessfully applied for asylum. He subsequently married an Austrian citizen in 2003, and had three children of Union cititizenship. He was without permission to reside and work, and the mother of the children was reliant on State Welfare payments. The question of his right to be granted residency in Austrian came before the Austrian courts, which subsequently referred the following questions to the Court of Justice;

(a) Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse and minor children are Union citizens - residence in the Member State of residence of the spouse and children, who are nationals of that Member State, even in the case where those Union citizens are not dependent on the national of a non-member country for their subsistence? (Dereci case)

(b)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - whose spouse is a Union citizen - residence in the Member State of residence of that spouse, who is a national of that Member State, even in the case where that Union citizen is not dependent on the national of a non-member country for his or her subsistence? (Heiml and Maduike cases)

(c)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose mother is a Union citizen - residence in the Member State of residence of the mother, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for her subsistence but rather that national of a non-member country who is dependent on the Union citizen for his subsistence? (Kokollari case)

(d)    Is Article 20 TFEU to be interpreted as precluding a Member State from refusing to grant to a national of a non-member country - who has reached the age of majority and whose father is a Union citizen - residence in the Member State of residence of the father, who is a national of that Member State, even in the case where it is not the Union citizen who is dependent on the national of a non-member country for his subsistence but rather the national of a non-member country who receives subsistence support from the Union citizen? (Stevic case)

Perhaps the Court of Justice will use this opportunity to test the boundaries of the novel legal principles laid down in the Zambrano case. However, we understand that this reference is not to be expedited by way of the accelerated procedure, and therefore it may be a number of years before we receive the Court of Justice determination.

Brophy Solicitors

27.7.11

ZAMBRANO/CHEN

HIGH COURT REFUSAL TO FIND A RIGHT TO TEMPORARY PERMISSION TO RESIDE FOR ZAMBRANO/CHEN APPLICANT

It might be of interest to know that this morning we made an application to the High Court for a temporary permission to reside/work pending determination of an Chen / Zambrano application for a third country national father of a Union citizen child, the family unit being permanently resident in Ireland. We argued that such applicants should be treated analogously to applicants for a residence card under Directive 2004/38 on the basis that all rights were deriving from the Treaty, and not the secondary legislation itself. We argued that just as an applicant pursuant to the Directive/Regulations is protected with temporary permission to reside and work, so too should our client be protected in this way. Particularly given that the family was fully dependant on his weekly earnings.

The judge refused our application, and would not entertain the argument that the application was analogous to those made under the Directive. He found that the court should not intervene when an application was before the Minister as this would effectively preempt the Minister’s decision.

It is also of interest to note that the Judge indicated that Zambrano may not be relevant to the case as the child was not a citizen of this State, and did not risk being removed from the territory of the European Union.  To us, this seems to create a clear discrimination between Irish children and other Union citizen children. The former are now distinctly advantaged as their non EU parents can obtain the right to reside and work within Ireland following Zambrano, while the parents of children of a European Union nationality other than Ireland would be forced to leave Ireland and assert these rights in the country of the child’s nationality. This would seem contrary to the fundamental concept of free movement within the EU.

It seems likely that these questions will have to be referred to the European Court of Justice for clarification in the coming months. 

Brophy Solicitors

25.7.11