COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SEDLEY
LORD JUSTICE HOOPER
| KG(SRI LANKA) and AK(SRI LANKA)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Miss Nicola Rogers (instructed by The Merton Law Centre) for AK
Mr Robert Palmer (instructed by The Solicitor to Her Majesty's Treasury) for the Respondent
Hearing dates : 20 December 2007
Crown Copyright ©
Lord Justice Buxton :
Background and outline facts
Free movement of Union citizens
The basic law
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 the Treaty and by the measures adopted to give it effect.
a) the spouse;
b) the partner with whom the Union citizen has contracted a registered partnership, on the basis of the legislation of a Member State, if the legislation of the host member state treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State;
c) the direct descendants who are under the age of 21 or are dependants 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);
I will call these persons article 2 family members. It will be noted that such family members fall into two classes: A. Those whose rights are based simply on their relationship with the Union citizen, i.e. spouses, registered partners and children under 21. B. Those who in addition to their relationship with the Union citizen have to prove their dependence on him or his spouse or partner, i.e. children over 21 and direct relatives in the ascending line.
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.
I will refer to the persons addressed in article 3(2)(a) as other family members [OFM].
8. (1) In these Regulations "extended family member" means a person who is not a family member of an EEA national under regulation 7(1)(a), (b) or (c) and who satisfies the conditions in paragraph (2), (3), (4) or (5).
(2) A person satisfies the condition in this paragraph if the person is a relative of an EEA national, his spouse or his civil partner and-
(a) the person is residing in an EEA State in which the EEA national also resides and is dependent upon the EEA national or is a member of his household;
(b) the person satisfied the condition in paragraph (a) and is accompanying the EEA national to the United Kingdom or wishes to join him there; or
(c) the person satisfied the condition in paragraph (a), has joined the EEA national in the United Kingdom and continues to be dependent upon him or to be a member of his household.
(3) A person satisfies the condition in this paragraph if the person is a relative of an EEA national or his spouse or his civil partner and, on serious health grounds, strictly requires the personal care of the EEA national his spouse or his civil partner.
(4) A person satisfies the condition in this paragraph if the person is a relative of an EEA national and would meet the requirements in the immigration rules (other than those relating to entry clearance) for indefinite leave to enter or remain in the United Kingdom as a dependent relative of the EEA national were the EEA national a person present and settled in the United Kingdom.
(5) A person satisfies the condition in this paragraph if the person is the partner of an EEA national (other than a civil partner) and can prove to the decision maker that he is in a durable relationship with the EEA national.
(6) In these Regulations "relevant EEA national" means, in relation to an extended family member, the EEA national who is or whose spouse or civil partner is the relative of the extended family member for the purpose of paragraph (2), (3) or (4) or the EEA national who is the partner of the extended family member for the purpose of paragraph (5).
The Secretary of State may issue a residence card to an extended family member not falling within regulation 7(3) who is not an EEA national on application if-
(a) the relevant EEA national in relation to the extended family member is a qualified person or an EEA national with a permanent right of residence under regulation 15; and
(b) in all the circumstances it appears to the Secretary of State appropriate to issue the residence card.
in the country from which they have come are dependants or members of the household of the Union citizen
has to be read as referring to any country and not just to member states and EEA countries as it is limited by regulation 8(2).
The origins of the Citizens' Directive: movement within the Community
Member States shall facilitate the admission of any member of the family not coming within the provisions of paragraph 1 [which makes the same provision as article 2 of Directive 2004/38, save that in 1968 there was no concept of registered partnership] if dependant on the worker….or living under his roof in the country whence he comes.
Similar provision was made in Directive 73/148 on the free movement of self-employed persons.
Regulation No 1612/68 covers only freedom of movement within the Community. It is silent as to the rights of a national of a non-Member State, who is the spouse of a citizen of the Union, in regard to access to the territory of the Community.
…a Member State may not send back at the border a third country national who is married to a national of a Member State and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health…..
It is to be noted that emphasis was placed on support of the relationship of marriage, which was the relationship relied on both in MRAX and in Carpenter. There is nothing in this to suggest that the rules on OFM are equally indifferent as to the country from which the OFM has arrived. And the case says nothing to undermine the basic requirement that the Union citizen should be moving within the Community. Indeed, the only reference to the nature of the rights exercised under the movement directives assumes that the right is one to move within the Community: see MRAX at §56.
the right of entry into the territory of a Member State granted to a third country national who is the spouse of a national of a Member State derives from the family relationship alone.
That being so, and whilst a member state can require a visa or equivalent document from such a third country national, the Spanish rule as to that requirement was unduly restrictive, and thus by implication unduly restrictive of the right of movement of the Union citizen married to that third country national.
the prospect…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 reunification.  Barriers to family reunification are therefore liable to undermine the right of free movement which the nationals of the Member States have under Community law, as the right of a Community worker to return to the Member State of which he is a national cannot be considered to be a purely internal matter.
…it should be remembered that the Community legislature has recognised the importance of ensuring the protection of family life of nationals of the Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty, as is particularly apparent from the provisions of the Council regulations and directives on the freedom of movement of employed and self-employed workers within the Community… It is clear that the separation of Mr and Mrs Carpenter would be detrimental to their family life and, therefore, to the conditions under which Mr Carpenter exercises a fundamental freedom. That freedom could not be fully effective if Mr Carpenter were to be deterred from exercising it by obstacles raised in his country of origin to the entry and residence of his spouse.
…although it is clear that Article 10 of Regulation No 1612/68 and Article 1(1) of Directive 73/148 have as their effect the protection of family life, it cannot, in my view, be said that this was an objective of these provisions. Where the Court observed first in Carpenter, and later in MRAX, that in adopting the regulations and directives, 'the Community legislature has recognised the importance of ensuring the protection of family life of nationals of Member States in order to eliminate obstacles to the exercise of the fundamental freedoms guaranteed by the Treaty', viewed in the context of the time when these acts were adopted, this was merely an implicit and, at most, a secondary consideration. There is no reference to Article 8 of the ECHR in the preambles to Regulation No 1612/68 or Directive 73/148, or, significantly, in their successor, Directive 2004/38. The latter only refers in a general sense to compliance with the ECHR…..I do not consider, therefore, that the protection of family life can be used as a guideline for the interpretation of the scope and the content of the relevant provisions in Regulation No 1612/68 and Directive 73/148. [emphasis in the original]
Community law, in the form of Directive 2004/38/EC, fulfils one of humanity's most long-standing aspirations: the possibility of moving without restrictions or hindrances and settling down in the country of one's choice together with one's family
Mr Gill saw some help in the broad and aspirational terms of that statement. But, even if such material could offset the jurisprudence of the ECJ, Mr Frattini's statement goes no further than to record that Directive 2004/38 creates rights of movement for humanity (provided they are Union citizens), and not just for workers, and makes provision for the Union citizens to be accompanied by their families. None of those general propositions are in issue before us; all of them are neutral in the dispute that is in issue before us, of who in detail are the beneficiaries of Directive 2004/38, and on what terms.
Case C-109/01 Akrich and Case C-1/05 Jia
A national of a Member State might be deterred from leaving his country of origin in order to pursue an activity as an employed or self-employed person as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national in order to pursue an activity there as an employed or self-employed person, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State.  He would in particular be deterred from so doing if his spouse and children were not also permitted to enter and reside in the territory of his Member State of origin under conditions at least equivalent to those granted them by Community law in the territory of another Member State.
The congruence of approach with that of the ECJ in Case C-291/05 Eind, cited in §35 above, will be obvious.
…the national of a non-Member State, who is the spouse of a citizen of the Union, must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated.
That conclusion was reached in the context of two general principles that Akrich asserts without question. First, that rights of free movement of Union citizens are rights to move within the Community. Second, that the reach and conditions of rights to accompany Union citizens when so moving must be judged according to whether the absence of such rights will deter the exercise of the right of movement by the Union citizen: even to the extent of applying that test to accompaniment by spouses, who on the face both of Regulation 1612/68 and of Directive 2004/38 have such rights by virtue of their relationship alone.
By this question, the referring court asks essentially whether Community law, in the light of the judgment in Akrich, requires Member States to make the grant of a residence permit to a national of a non-Member State, who is a member of the family of a Community national who has exercised his rights of free movement, subject to the condition that the family member has previously been lawfully resident in another Member State [ECJ, §25]
the condition of previous lawful residence in another Member State, as formulated in the judgment in Akrich, cannot be transposed to the present case.
Conclusions on the proper construction of article 3(2)(a) of Directive 2004/38
Conclusion on the construction issue
The facts of these cases
Who accompany or join them
Dependants in the country from which they have come
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].
I find that [the Union citizen] provided some support but that this was relatively small in the early years and that this would have had to have been shared among the large family. I find that the appellant exaggerated the relative importance of the [Union citizen]'s remittances. It is more probable than not that the appellant's support was provided mainly by his own parents.
Members of the household of the Union citizen
The time of dependency and of living in the household
Deterrence from exercising the Union citizen's rights
Reference to the ECJ
Lord Justice Sedley
Lord Justice Hooper: