England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
Immigration and Asylum Chamber

		Royal Courts of Justice Strand, London, WC2A 2LL
		25th November 2013

Lord Justice Beatson :

Introduction

1. This is the judgment of the court to which we have all contributed. It concerns the scope of Directive 2004/38/EC ("the 2004 Directive"), a provision about the right of EU citizens to move and reside freely within the territory of the Member States and the arrangements regarding their family members. Article 3(1) makes provision for the grant of a residence card to a defined category of family members. Article 3(2) makes provision for the facilitation of applications by a broader category of family members ("other family members") who are dependants or members of the EU citizen's household. The sole question in these appeals from the Upper Tribunal (Immigration and Asylum Chamber) is whether the appellants can bring themselves within Article 3(2)(a) of the 2004 Directive where the dependency on the EU citizen or membership of his or her household arose only after their arrival in the United Kingdom.

The factual and procedural background

2. These cases and others were stood out, first pending the decision of the European Court of Justice ("the CJEU") in Case C-83/11 Rahman [2013] QB 249 ("Rahman's case"), and then pending the decision of this court in Aladeselu v Secretary of State for the Home Department [2013] EWCA Civ 144 ("Aladeselu's case"). They and four other applications came before Richards LJ on 3 May 2013. Permission to appeal was refused on a number of fact-specific grounds but given on the ground summarised in [1] above.

The Oboh family appellants

3. The six appellants in AO's case are Alexander Oboh, Linda, his wife, and their four children, Destiny, Maxwell, Sarah and Joshua. The couple are citizens of Nigeria who married in 1997. On 26 March 1998, Linda arrived in Italy and was given a work permit. She worked in a factory in Italy from 2000. Alexander joined her in Italy on 23 July 2002. Three of the children were born in Italy between 2003 and 2006. Unlike his wife, Alexander did not have regular work.
4. Alexander Oboh's elder brother, Marcus Oboh, is a German citizen. He moved to the United Kingdom in February 2008 to further his career as a carer. His wife and child stayed in Germany because the family did not wish their child's education to be interrupted. It is not in dispute that Marcus Oboh is an EU citizen who is exercising Treaty rights in the United Kingdom. He is therefore a beneficiary of the rights conferred in particular by Article 3(1) of the Directive and benefits from an extended right of residence in the United Kingdom under Article 7(1)(a) of the 2004 Directive.
5. On 18 February 2008, after the arrival of Marcus Oboh in the United Kingdom, Alexander and Linda Oboh and their three children, who at that date had a right of permanent residence in Italy, entered the United Kingdom as visitors. At that time, Linda was pregnant and on maternity leave from her Italian job. It appears (see [8] below) that the family was able to travel to the United Kingdom because Marcus Oboh sent them money. The couple's youngest child was born on 17 May 2008. The latter stages of Linda's pregnancy were affected by her ill-health.
6. On 10 February 2009 the family applied for residence cards on the basis of their dependence on Marcus Oboh, in whose household they resided. Their applications were refused by the Secretary of State on 23 February 2010 on the ground that they had shown insufficient dependency on the brother, both in the United Kingdom and prior to their arrival.
7. An appeal to the First Tier Tribunal ("FTT") against the refusal of their applications was dismissed on 30 June 2010. The FTT held that the family were not part of the brother's household and were not financially dependent on him, and did not therefore qualify under Regulation 8 of the Immigration (European Economic Area) Regulations 2006, SI 2006 No. 1003 ("the EEA Regulations"). Permission to appeal to the Upper Tribunal was given, and that Tribunal held that the FTT had erred in law because the FTT judge had applied the wrong test of dependency. The matter was re-determined by the Upper Tribunal at a hearing on 16 November 2011. In its determination, promulgated on 25 November, the Tribunal dismissed the appeal.
8. The Upper Tribunal judge recorded in the decision that it appeared to be agreed that the family were part of the brother's household in the United Kingdom, but he found that they had not proved that they were dependent on him while they lived in Italy. The oral evidence from Alexander, Linda, and Marcus Oboh was that they had received financial help from Marcus for a number of years because, after the birth of their children, Linda's job and the intermittent nature of Alexander's employment did not generate enough income to support the family. The documentary evidence, however, showed only a payment of €2000 by Marcus to Alexander on 28 February 2006 and a payment from him in February 2008, shortly before Alexander and his family travelled to the United Kingdom. The Upper Tribunal judge said that he had been told the money was to enable the family to pay for that travel. He concluded (at [32]) that he was not satisfied that Alexander and his family had demonstrated to the relevant standard that they were dependent on Marcus while they lived in Italy, and that it was insufficient to show that they were now financially dependent on him and living in his household in the United Kingdom.
9. The Upper Tribunal refused permission to appeal on 3 January 2012. Permission to appeal on a number of fact-specific grounds was refused. The grounds of appeal included challenges to the finding that Alexander and his family had not proved that they were dependent on the brother while they were in Italy. It was also contended that the judge failed to evaluate the evidence before him properly or to give adequate reasons for his finding. Permission was refused both because the grounds did not have a real prospect of success and because they were case-specific challenges which did not meet the second appeal criteria.

Mr Haulader's appeal

10. Mr Mohammed Haulader was born on 7 February 1981. He is a citizen of Bangladesh. He was given entry clearance to travel to the United Kingdom as a student on 30 September 2004. He entered the United Kingdom on 2 October. His leave to remain as a student was extended on a number of occasions. The last extension was granted on 21 September 2009 and ran until 30 October 2010. Since 2007, he has been in paid employment.
11. Mr Haulader lived in the same household as his brother. In 2007, his brother married a Mrs S. Ortmann, an EEA national. On 30 October 2010, the date of the expiry of his last period of leave as a student, Mr Haulader applied for a residence card on the basis that he had lived with his brother and sister-in-law since 2007 and had been dependent on those relatives since then, and so was entitled to a residence card. The Secretary of State refused his application on 8 February 2011. She did so on the ground that there was no evidence that Mr Haulader had lived in the same household as the EEA national prior to his arrival in the United Kingdom, or that he was financially dependent on her.
12. Mr Haulader's appeal to the FTT was dismissed in a determination promulgated on 13 April 2011. The FTT rejected the submission that a purposive meaning had to be given to the Directive, with the result that there was no requirement that the individual be part of the household of the EEA national exercising Treaty rights before his or her arrival in the United Kingdom, and that it sufficed that the dependency was only established in respect of the individual's time in the United Kingdom. An appeal to the Upper Tribunal was dismissed on 13 September 2011. After the hiatus pending the decisions in Rahman and Aladeselu, Mr Halauder's case came before Richards LJ on 3 May 2013.

The legal framework

Directive 2004/38/EC, on the right of EU citizens to move and reside freely

13. The 2004 Directive amended Regulation (EEC) No 1612/68 on "freedom of movement for workers within the Community". Its title states that it is "on the right of citizens of the Union and their family members to move and reside freely within the Member States". The cases of the appellants are centred on the consequences of the reference in the 2004 Directive to freedom of residence.
14. The material recitals to the 2004 Directive are recitals 1, 5 and 6. Recital 1 records that EU citizens have a "primary and individual right to move and reside freely within the territory of the Member States". Recital 5 records that, if this right is to be exercised "under objective conditions of freedom and dignity", it should also be granted to their family members, which are to include a registered partner if the legislation of the host Member State treats registered partnership as equivalent to marriage.
15. Recital 6 states that "in order to maintain the unity of the family in a broader sense", those persons who are not included in the definition of family members under Article 2 of the 2004 Directive, "and who therefore do not enjoy an automatic right of entry and residence", 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 them. The recital states that this examination should take into consideration the relationship of those persons with the EU citizen or other circumstances such as their financial and physical dependence on that person.
16. The material provisions of the 2004 Directive are:

"Article 2: Definitions:

For the purposes of this Directive:

…

2. 'family member' means:

(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);

…

Article 3: Beneficiaries:

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 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.

…

Article 10: Issue of residence cards

1. The right of residence of family members of a Union citizen who are not nationals of a Member State shall be evidenced by the issuing of a document called 'Residence card of a family member of a Union citizen' no later than six months from the date on which they submit the application. A certificate of application for the residence card shall be issued immediately.

2. For the residence card to be issued, Member States shall require presentation of the following documents:

….

(e) in cases falling under Article 3(2)(a), a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants or members of the household of the Union citizen, or proof of the existence of serious health grounds which strictly require the personal care of the family member by the Union citizen;

(f) in cases falling under Article 3(2)(b), proof of the existence of a durable relationship with the Union citizen."

The EEA Regulations

17. It is common ground that, under the EEA Regulations, through which the United Kingdom sought to give effect to the 2004 Directive, only those who can show dependency/household membership in another country and ongoing dependency/household membership in the United Kingdom can qualify as "extended family members", the term used in the EEA Regulations to deal with those referred to as "any other family members" in Article 3(2). The appellants' cases are therefore based solely on the 2004 Directive, and not on the EEA Regulations. It is submitted on their behalf that Regulation 8 does not properly transpose Article 3(2) of the Directive.
18. It is therefore not necessary to set out Regulation 8 in full. It suffices to say that, to be an "extended family member" within Regulation 8(1), a person must satisfy, so far as material, the condition in Regulation 8(2) that the person is a relative of an EEA national, his spouse or civil partner, and "(a) the person is residing in a country other than the United Kingdom…and is dependent on 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." (emphasis added).

Submissions on behalf of the appellants

19. Mr Jafferji's submissions on behalf of the Oboh family were adopted by Mr Haulader. Mr Jafferji accepted that the ordinary and literal meaning of the words "who, in the country from which they have come, are dependants or members of the household" in Article 3(2)(a) prima facie appears to be a clear pointer to a requirement of dependency or membership of household in a country other than the host Member State. But he submitted that, in the light of the need to have regard to the context and objectives of the 2004 Directive, and because "the enacting terms of an EU act are indissociably linked to the reasons given for it",^[1] it is incorrect to give the provision its ordinary and literal meaning. He also submitted that, if we were minded to give the provision its literal meaning, we should refer a preliminary question to the CJEU pursuant to Article 267 of the Treaty on the Functioning of the European Union ("TFEU").
20. Mr Jafferji's starting point was that, unlike Regulation (EEC) 1612/68, the 2004 Directive is not only concerned with the right of freedom of movement. It is also concerned with the right of freedom of residence. The exercise of the right of freedom of residence will often follow on from the exercise of the right of freedom of movement. But Mr Jafferji submitted that there is no reason to suppose that it must always do so in this way. He gave as an example an EU citizen who is born while his parents are residing in the host state and has remained there until the material date. He submitted that the application of the right of freedom of residence in Case C-34/09 Ruiz Zambrano v Office national de l'emploi 8 March 2011 [2012] QB 265 shows that it is a free-standing right that exists independently of the right of freedom of movement. He submitted that, as such, Article 3(2) must be interpreted in a manner that gives equal protection to, and ensures the effectiveness of both the rights of freedom of movement and freedom of residence as independent rights
21. The decision of the ECJ in Case C-127/08 Metock v Minister for Justice, Equality and Law Reform 25 July 2008 is crucial to Mr Jafferji's case. He submitted that the decision makes it clear that the provisions of the 2004 Directive must be interpreted so that effect is given to both rights. The second question referred to the ECJ by the Irish court was whether the right of an EU citizen that his family members join him in the host Member State applied where the family was only founded after the EU citizen exercised his right of freedom of movement.
22. The Court held that the necessity of not interpreting the 2004 Directive restrictively and depriving its provisions of their effectiveness meant that the words in Article 3(1), "family members [of EU citizens] who accompany…them", must be interpreted as referring both to family members who entered the host Member State with him and to those who reside with him in that State, irrespective of whether the family members entered the Member State before or after the EU citizen or before or after becoming his family members: judgment at [93]. This was because the ECJ considered that the refusal to allow family members to join an EU citizen who had founded a family in the host Member State after exercising his right of freedom of movement to that Member State would (see [89]) "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".
23. The need to give equal protection to both rights was, Mr Jafferji submitted, particularly underlined in the Advocate-General's view in Metock's case. The Advocate-General stated (see [AG 13]) inter alia that, as a result of the 2004 Directive, which places equal emphasis on the right to reside freely within the territory of the Member States, it is "no longer only the mobility but also the stability and permanence of residence in another Member State that is intended to be secured…". The Advocate-General also stated ([AG 17]) that the need for a broad construction of the term "accompany" in Article 3(1) stemmed from the need to remove any deterrents to the exercise of the right of freedom of residence by the Union citizen. Otherwise, (see [AG 13]), if the EU citizen's family life changes and a family member is unable to join the citizen because the family member has not been lawfully resident in another Member State, the EU citizen will be induced to leave the Member State in which he chose to establish himself in favour of a State in which he will be able to reunite the family unit.
24. Mr Jafferji submitted that Metock's case shows that, although the language of the 2004 Directive appears to be focused on the movement of the EU citizen and his family rather than their residence, the need for equal protection of both these rights required a wide interpretation of the term "accompany".
25. Metock's case, unlike the appeals before us, concerned family members within Article 2(2) of the Directive and the rights given to them differ from and are more extensive than those given to "other family members" within Article 3(2)(a). Save where, pursuant to Article 27 of the 2004 Directive, considerations of public policy, public security or public health justify a Member State restricting the freedom of movement and residence of Union citizens and their family members, family members have the right to "accompany or join" the EU citizen: Articles 2 and 3(1). As to "other family members", the host Member State is only under an obligation to "facilitate entry and residence". They thus have only what the CJEU in Rahman's case, described (at [21]) "a certain advantage" compared with applications of nationals of non-EU states.
26. Mr Jafferji accepted that there is a significant difference in the positions of Article 2 "family members" and Article 3 "other family members". But, relying on the statement of Sedley LJ that the language of Article 3(2) is "more aspirational than legislative" and that, accordingly, "a search for the underlying policy is necessary" (KG and AK v Secretary of State [2008] EWCA Civ 13 at [83] and [84]) and the judgment of Maurice Kay LJ in Bigia v Entry Clearance Officer [2009] EWCA Civ 79 at [43], he submitted that the principles that apply to interpreting Article 2 and its underlying policy and thus the meaning of "accompany or join" in Article 3(1) also apply when interpreting Article 3(2)(a).
27. The reasoning of the ECJ in Metock's case, he maintained, reveals a policy of ensuring that relationships created in the host Member State should be covered by the Directive in an equal way to relationships that existed before the Union citizen moved to the host Member State. In effect there is an overarching policy which seeks to ensure that there is no deterrence to either the freedom of movement or the freedom of residence of EU citizens. That policy is equally applicable to the position of "other family members" and the interpretation of Article 3(2)(a). It follows that the circumscribed nature of the language of the crucial words in Article 3(2)(a) must be given a purposive construction in which all that is relevant is dependency on the EU citizen or membership of his or her household at the date of the application for a residence card. If they are not given that meaning, he contended, in the case of "other family members" the 2004 Directive would only provide effective protection for the right of freedom of movement and would only ensure that the exercise of that right is not deterred. The Directive would only provide incomplete protection for the exercise by the Union citizen of what is a continuing right of freedom of residence after he or she has arrived in the host Member State.
28. Mr Jafferji illustrated his argument that all that is relevant is the position of the individual or individuals in question at the date of the application for a residence card with a number of factual scenarios. One was the position of Joshua, the youngest member of the Oboh family who was born in the United Kingdom and has never resided in any other country. The United Kingdom is the only country from which he can be said to have come. If dependency or membership of household in another Member State is a requirement, such a child can never qualify. He also referred to the scenario referred to in the Advocate-General's opinion in Rahman's case. The Advocate-General ([AG 99]) posited a case in which the EU citizen is the only possible carer for a very young child, say his nephew, where the child's parents have recently died. At the hearing, there was also discussion of the position of a child such as Joshua in the event that his parents and siblings were tragically killed, say in a road accident, and he was dependent on and in the household of his uncle. To exclude him from the scope of Article 3(2) simply because he has never lived anywhere other than the United Kingdom, would, submitted Mr Jafferji, make no sense and is entirely inconsistent with the aims of the 2004 Directive. The disqualification of young children in those positions may, he argued, be a real deterrence to the continued exercise by an EU citizen resident in the United Kingdom, of his right to do so.
29. There could, Mr Jaferrji argued, be a similar deterrence if the individuals involved are adults who do not qualify as "other family members" because they were neither dependants nor members of the EU citizen's household before he exercised his right to reside in the host Member State. In the case of the Oboh family, if the family was living in Italy and were dependent on Alexander Oboh's brother, they would qualify as "other family members" within Article 3(2). If, now that they are dependent on him, they return to Italy, they would also qualify. Mr Jafferji submitted that their inability to qualify under their present circumstances gives no recognition to their present dependency, violates the principle that it is not relevant where the relationship arose, and provides incomplete protection to the EU citizen's right of freedom of residence.
30. Mr Jafferji submitted that the construction for which he contended would provide equal protection to both the right of freedom of movement and the right of freedom of residence. He relied on the use of the present tense "are" in the phrase "who, in the country from which they have come, are dependants or members of the household of the Union citizen", to support his contention that all that is relevant is the position at the date of the application for a residence card. He also relied on the statement of Richards LJ in Aladeselu's case^[2] at [48] that the decision of the CJEU in Rahman's case:-

"… is not to be read as laying down a requirement that the dependency at the date of the application must be dependency in the country from which the applicant comes, such that a relative who has been dependent throughout cannot qualify if he arrives in the host Member State many months before the EU citizen and the making of the application."

He submitted that this showed that what is relevant in order to qualify as "other family members" for Article 3(2) is the position at the time of the application. To adopt what was characterised as "an historic approach" by looking at the position of the EU citizen in the past would, he submitted, give rise to deterrence.

31. Mr Jafferji also submitted that it did not follow from the difference in the content of the right of the EU citizen in relation to "family members" and the protection in relation to "other family members" that it is necessary for there to be a narrow definition of the threshold required to bring a person within Article 3(2). He argued that this in fact points the other way. The fact that a person within Article 3(2) has in effect only a right to be considered by the host State, albeit on a preferential basis, and that the host State has a discretion to refuse to issue a residence card, is, he maintained, a reason for not giving a narrow meaning to the threshold requirements. For these reasons, he submitted that, just as the term "accompany" in Article 3(1) was interpreted broadly in Metock's case, so the phrase "in the country from which they have come" should be interpreted broadly.
32. Before turning to Mr Collins' submissions on behalf of the Secretary of State, we observe that, although Mr Jafferji relied on Maurice Kay LJ's statement in Bigia's case about the identity of the policy considerations, the judgment in that case in fact constitutes a significant obstacle to his submissions, as do the more recent judgments of the CJEU in Rahman's case^[3] and (although possibly to a lesser extent) of this Court in Aladeselu's case.^[4] We shall return to the difficulties and Mr Jafferji's submission that the difficulties are apparent rather than real later in this judgment. At this stage, it suffices to state that he submitted that in none of those cases was the court concerned with the application of Article 3(2) to a factual situation in which the dependency or membership of the household had arisen only after arrival in the host Member State, and the applications for residence cards were made at that time. He argued that those parts of the judgments which appear to be inconsistent with the appellants' cases were adopting (in the words of Richards LJ at [47] in Aladesulu's case) formulations "appropriate to the particular circumstances of the case … rather than laying down a principle of universal applicability".

Submissions on behalf of the respondent

33. The starting point of Mr Collins' submissions on behalf of the Secretary of State is the sharp difference between the 2004 Directive's treatment of those who qualify as "family members" under Articles 2 and 3(1) and those who are only "other family members" under Article 3(2).
34. The position of Article 2 and 3(1) "family members" is an unqualified reflection of the "primary and individual right" of the EU citizen to move and reside freely within the territory of the Member States. It is based on the juridical nature of the relationship. It is (see KG and AK at [37]) "a support to, and encouragement of, the exercise of rights by the Union citizen, and not as an end in itself". Its purpose (see ibid. at [60]) is "to ensure that Union citizens are not deterred from exercising their rights…within the Community".
35. By contrast, the Member State's obligation to facilitate entry and residence for those within Article 3(2)(a) is qualified by the provision that the Member State is entitled to undertake "an extensive examination of the personal circumstances" and by the final sentence of Article 3(2) which clearly envisages that such persons may be denied entry or residence. The test is thus not based on the juridical nature of the relationship but on a series of specific factual questions.
36. The contrast between Article 3(1) and Article 3(2) is also seen in the structure of the recitals to the Directive. Recital 6 contrasts the position of those qualifying under Article 2 with those under Article 3 "who therefore do not enjoy an automatic right of entry and residence".
37. What the Directive requires (see Rahman's case at [22]), as is made clear from recital 6 to it, is that Member States "make it possible for the persons envisaged in the first subparagraph of Article 3(2) to obtain a decision on their application which is founded on" that extensive examination "and, in the event of refusal, is justified by reasons". The CJEU in Rahman's case (at [26]) stated that "the criteria for eligibility and to enable a Member State to make a decision about an application must be consistent with the normal meaning of the term 'facilitate' and of the words relating to dependence used in Article 3(2), and must not deprive that provision of its effectiveness." But, in selecting those criteria, Rahman's case (see [24] and [26]) also stated that the Member State retains a wide discretion in considering the factual questions posed, i.e. the extent of economic or physical dependence, and the degree of relationship between the family member and the Union citizen whom he wishes to accompany or join.
38. Secondly, Article 3(2)(a) expressly provides that it applies only to those who "in the country from which they have come" are dependants or members of the household of the Union citizen. The language of the Directive and the Recitals to it are very clear in limiting the group of "other family members" who qualify under that provision to those who had the relevant relationship – dependency or household membership – in the country from which they have come. This limitation was also clearly and explicitly recognised by the CJEU in Rahman's case. The Court stated:

"32. So far as concerns the time at which the applicant must be in a situation of dependence in order to be considered a 'dependant' within the meaning of Article 3(2) of Directive 2004/38, it is to be noted that, as follows from recital 6 in the directive's preamble, the objective of that provision is to 'maintain the unity of the family in a broader sense' by facilitating entry and residence for persons who are not included in the definition of family member of a Union citizen contained in Article 2(2) of Directive 2004/38 but who nevertheless maintain close and stable family ties with a Union citizen on account of specific factual circumstances, such as economic dependence, being a member of the household or serious health grounds.

33. It is clear that such ties may exist without the family member of the Union citizen having resided in the same State as that citizen or having been a dependant of that citizen shortly before or at the time when the latter settled in the host State. On the other hand, the situation of dependence must exist, in the country from which the family member concerned comes, at the time when he applies to join the Union citizen on whom he is dependent.

…

35. … [I]n order to fall within the category, referred to in Article 3(2) of Directive 2004/38, of family members who are 'dependants' of a Union citizen, the situation of dependence must exist in the country from which the family member concerned comes, at the very least at the time when he applies to join the Union citizen on whom he is dependent."

39. The clarity of the language of the Directive and the recitals to it, in particular recital 6, cannot, submitted Mr Collins, be overridden by a broad appeal to policy and the need to adopt a purposive approach in order to say that the words of the Directive and the words used by the CJEU in Rahman's case do not mean what they say. It is, moreover, not only the language of Article 3(2) that is clear. The structure of the Directive, and the recitals to it, make an essential and fundamental difference between Article 3(1) "family members" and Article 3(2) "other family members" because automatic and blanket rights are not given to the latter. Accordingly, a purposive analysis cannot be used to overcome the line so clearly drawn by the European legislation.
40. Mr Collins submitted that the decision of this court in Soares v Secretary of State for the Home Department [2013] EWCA Civ 575 shows the limits of what can be achieved by a purposive approach. That case concerned a different question, namely whether Regulation 8(2) of the EEA Regulations should be construed to extend not only to dependence on (or household membership of) an EEA national but also to dependence on (or household membership of) a spouse or partner of an EEA national. It was argued (see [23]) that such a reading would "maintain the unity of the family in a broader sense" and that was the underlying purpose of the 2004 Directive which the EEA Regulations were designed to implement. This court rejected that argument.
41. The court considered the contrast between the 2004 Directive's approach to "family members" and its approach to "other family members". The spouse or partner of the EEA national was not included in the category to whom the dependence or household membership could relate. Davis LJ recognised (at [26]) that a broad purposive approach was adopted in Rahman's case, but stated that that had no real bearing on the situation in Soares's case. This was because a purposive approach could not be employed so as to defeat the express terms of Regulation 8(2), the meaning and effect of which are consistent with Article 3(2) of the 2004 Directive.
42. As to the policy, Mr Collins accepted that the aim of the Directive is to enable EU citizens to enjoy freedom of movement and freedom of residence, but he emphasised that the jurisprudence of the CJEU clearly shows that the policy of the Directive is not the promotion of family reunification. It is solely to enable deterrents to the exercise of the two freedoms to be removed. He characterised the underlying policy as an aim of facilitating an EU citizen maintaining his or her household wherever he or she is in the Union. In the case of those who seek to qualify as "other family members" the threshold is the satisfaction of an essentially factual question and the underlying policy does not preclude the setting of the threshold in the way the literal meaning of the language used in the Directive does.
43. Mr Collins also submitted that the consequence of the threshold expressly set by the Directive in order for a person to qualify as an "other family member" under Article 3(2)(a) is that the concession made by him on behalf of the respondent in Aladeselu does not assist. That concession related to the time the "other family member" arrived in the United Kingdom. Since Article 3(2) gives other family members the benefit of the obligation of the host Member State to "facilitate [their] entry and residence" there is a natural link to the concepts of "accompany" or "join" in Article 3(1). That link does not, however, mean that the entire approach to "other family members" has to be the same as that for "family members".
44. Mr Collins also took issue with the contention that the situation of dependence or membership of household is to be judged only at the date of the application. He submitted that it is clear from the main thrust of the European jurisprudence as well as the decisions of this court (see KG and AK [2008] EWCA Civ 13 at [62] and [79]; Bigia's case at [42] – [43], in particular the propositions distilled by Maurice Kay LJ from KG and AK; and Aladeselu's case at [48]) that it is to be judged both when the applicant is in the United Kingdom and when the applicant is in the country from which he or she has come.

Discussion

45. The words used in the English language text of the Directive to set the limits of the category of other family members who qualify for the preferential treatment described are, in their plain and natural meaning, clear. Article 3(2)(a) expressly addresses the position of "any other family members … 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 …" We have also considered the French and German language texts of the Directive and they include similar limiting words. The category is clearly delimited. The words "in the country from which they have come" must be given a meaning and, on their face, are important limiting words in the definition of the qualifying category.
46. If the words of the Directive are given their plain and natural meaning, the scope of Article 3(2) of the Directive accords with that prescribed in the corresponding provision, Regulation 8 of the implementing EEA Regulations. On this basis, the appellants in the present appeals do not qualify for privileged treatment under Article 3(2) because they were not dependants or members of the household of the EU citizen, in the country from which they have come.
47. The recent decision of the CJEU in Rahman's case lends powerful support to the Respondent's submission that the literal meaning of the provision is, indeed, that intended by the legislation. At two points in the judgment the Court states in terms, with regard to the situation of dependence, that it must exist, in the country from which the family member concerned comes, at the time when he applies to join the Union citizen on whom he is dependent (at [33] and [35]), thus indicating a requirement that the necessary relationship of dependency or membership of the household must have existed in another country as well as in the host Member State. The appellants point out, quite correctly, that Rahman's case was not concerned with a situation in which dependency or membership of the household had arisen only after arrival in the host Member State. Furthermore, the appellants derive some support for their position that the language of the court in Rahman's case was not laying down a principle but simply reflecting the particular circumstances of the case, from the words of Richards LJ in Aladeselu's case to which we have referred (at [30] above). However, it is important to note that in Aladeselu's case Richards LJ's concern was with the position of dependent relatives who arrive in the host Member State many months before the EU citizen and thus before the application was made. It was in respect of such relatives that Richards LJ accepted the submission that not to include them within Article 3(2) was capable of adversely affecting the EU citizen's rights of free movement and residence. But Richards LJ explicitly recognised (at [48]) that "Rahman establishes the need for a situation of dependence in the country from which the applicant comes, and a situation of dependence at the date of the application…". That appears to us to be inconsistent with the position taken by the appellants in these proceedings. It does seem to us, therefore, that the fact that the CJEU in Rahman's case described the qualifying category in these terms is highly significant.
48. Both Mr. Jafferji and Mr. Collins sought to invoke the scheme of the Directive as supporting their respective submissions. Thus Mr Collins relied on the fact that those within Articles 2 and 3(1) are defined by the juridical nature of the relationship, whereas those potentially within Article 3(2) are defined by an intensely fact-specific exercise. Mr. Jafferji, on the other hand, submitted that the difference in content between the two categories did not require a narrow definition of the threshold required to bring a person within Art. 3(2). On the contrary, he submitted, the fact that the protection afforded to other family members is limited to a right to be considered, albeit on a preferential basis, and that the host State has a discretion to refuse to issue a residence card, is a reason for not giving a narrow interpretation to the words defining the category.
49. The protection conferred on other family members who qualify under Article 3 is clearly much more restricted than the rights conferred on family members under Article 2. Whereas the Directive requires that the primary and individual right enjoyed by EU citizens to move and reside freely within the territory of Member States shall also be granted to family members as defined within Article 2(2), by contrast, in the case of other family members who fall within the scope of Article 3(2), the Directive imposes an obligation on Member States to "facilitate" their "entry and residence". This obligation is then elaborated by the statement that the host Member State is required to undertake "an extensive examination of the personal circumstances" and to "justify any denial of entry or residence to these people". While falling considerably short of the automatic rights of entry and residence conferred on family members, these rights are far from negligible and confer a privileged status over other applicants for rights of entry and residence. It does not seem to us, however, that the substantive content of the privileges conferred on other family members who qualify under Article 3 gives any indication as to the intended scope of application of the provision. There is no apparent link between the precise limits of the category of qualifying persons and the content of the privileges. Such privileges could, as a matter of policy, have been conferred on a wider or a narrower category of persons than that defined in Article 3(2).
50. Mr Jafferji suggested that what Sedley LJ referred to in KG and AK (Sri Lanka) at [83] as the "more aspirational than legislative" nature of the language of Article 3(2) was a pointer to a clear need to identify the underlying policy and to give effect to it in interpreting this provision. However, it seems to us that if the category is to be extended beyond that indicated by the plain meaning of the provision, this can be done only if a wider reading is both necessary in order to give effect to the purpose of the Directive and permissible under established rules of interpretation in EU law. In this regard the purposive interpretation for which the appellants contend encounters a number of difficulties.
51. The most fundamental difficulty in the path of the appellants' submission is that we are unable to identify any policy which would require such a reading. The judgment of the CJEU in Rahman's case makes clear that the general purpose of Article 3(2) is (see [30]) "to "maintain the unity of the family in a broader sense" by facilitating entry and residence for persons who are not included in the definition of family member … but who nevertheless maintain close and stable family ties with a Union citizen on account of specific factual circumstances, such as economic dependence, being a member of the household or serious health grounds". It is, moreover, clear that Article 3(2) is intended to protect both the right of free movement and the right of residence enjoyed by EU citizens: see Case C-127/08 Metock, View of Advocate General Poiares Maduro, [AG13] and [AG17].
52. The recognition in Rahman's case (at [32]) that what the provision in Article 3(2) of the Directive is seeking to do is to facilitate entry and residence for persons who are not included in the definition of "family members", "but who nevertheless maintain close and stable family ties" with the EU citizen "on account of specific factual circumstances" is, in our view, of some significance. It suggests that a temporal or geographical threshold such as that contained in Article 3(2), if interpreted in the ordinary sense of the words in fact used, cannot be seen as outwith the normal meaning of the term "facilitate", or the words relating to dependence used in Article 3(2), or to deprive that provision of its effectiveness. Those were the limiting factors referred to (albeit in the context of the discretion of the Member States) in Rahman's case at [26].
53. The appellants' cases before us are driven by the submission that to insist on the plain meaning of Article 3(2) would constitute a disincentive to an EU national settling in another EU State. It is necessary, therefore, to examine more closely the purposes of the provision and to consider how it is intended to achieve those purposes.
54. One factor on which the appellants are entitled to rely is the effect of the inclusion of "dependants" who are not members of the EU citizen's household within the category of "other family members". Although the emphasis in the Directive is on the elimination of obstacles to the Treaty rights of the Union citizen, rather than a policy of family reunification, the inclusion of dependants makes the rationale of the policy less clearly focused on the crisp policy of facilitating EU citizens maintaining their households wherever they are in the Union put to us by Mr Collins. Furthermore, the qualifying category within Article 3(2) extends to dependants of an EU citizen who reside in a Member State other than that in which the EU citizen was resident prior to his arrival in the host State. We have difficulty in seeing why a failure to accord preferential treatment to dependants resident in a third Member State (or indeed in a non-Member State) should constitute a disincentive to the EU national to set up his residence in the host Member State. We would expect that he would be able to provide for his dependants in precisely the same way in which he did so before his move to the host Member State.
55. In this regard we draw attention to the observations of Maurice Kay LJ in Bigia's case, when concluding that the propositions established in KG and AK (Sri Lanka) had not been undermined by the decision of the ECJ in Metock's case. He considered that there is no reason why the EU citizen's movement to or residence in the host Member State would be discouraged where the "other family member" who is financially dependent on the EU citizen and is provided with accommodation or living expenses by that citizen is in a non-Member State. Save where the EU citizen could only continue to support the "other family member" by making him or her part of his household, the "other family member" could continue to benefit from the accommodation or income after the EU citizen has exercised his right of freedom of movement to the host Member State and during the time that he or she exercises the right of freedom of residence within that State.
56. We acknowledge that, if what is required is historic dependency or membership of household as well as present dependency or membership of household, there will be situations, such as those posited by Mr Jafferji (see [28] – [29] above), in which the inability of the individuals concerned to qualify as "other family members" within Article 3(2)(a) of the Directive may have some deterrent effect on the exercise by the EU citizen of his right of free movement and residence, in particular of residence, within the territory of the Member States. However, it is important not to lose sight of the nature of Article 3(2) which is intended to lay down a rule of general application. In our view it was not intended to make detailed provision for individual cases. Furthermore, it is significant that it confers on persons falling within the identified category certain advantages in the pursuit of rights of entry or residence. Its application does not result in the refusal of such rights to individuals who fall outside the preferred category. They are able to make their applications in the ordinary course. In the exceptional cases postulated by the appellants other legal principles will come into play, among them Article 8 of the European Convention on Human Rights. Accordingly, we consider that we would not be justified in permitting such exceptional cases to set the limits of general application of Article 3(2).
57. The respondent is, in our view, greatly assisted by the clear statements by the CJEU in Metock's case, reflecting in particular recital 5, that the policy of the 2004 Directive is not one of family reunion. We consider this rejection of family reunion as the underlying policy to be a fixed point in our attempt to identify the policy underlying Article 3(2). Absent a requirement that the relevant relationship exist in another State, we have great difficulty in seeing how the policy of the Directive does not, in practice, become one of family reunion rather than one of facilitating the EU citizen in maintaining his household wherever he is in the Union. This seems to us to be a critical consideration.
58. We have referred (see [19]) to the statement of the CJEU in Lassal's case that the "enacting terms of an EU act are indissociably linked to the reasons given for it". That link, however, may be seen as symbiotic rather than as operating in only one direction. It is also to be noted that, very soon after making the statement about the terms being indissociably linked to the reasons for the EU instrument, the Court in Lassal's case also stated (at [51]) that it is where a provision of EU law is open to several interpretations that preference must be given to the interpretation which ensures that the provision retains its effectiveness. That is not the situation here. In order to achieve the reading for which the appellants contend it would be necessary to disregard the clear, defining words of the legislation.
59. The rejection by the CJEU in Metock's case of family reunion as the underlying policy, and the fact that any alternative policy is insufficiently identified in the 2004 Directive (including its recitals) and the previous jurisprudence of the Court has led us to conclude that overriding the explicit language of Article 3(2) cannot be justified.
60. Furthermore, the language of Article 3(2), and in particular the crucial words "in the country from which they have come" can be characterised as limiting words in the sense of limiting the scope of the policy, or indeed the scope of the aspirations engendered. The words in question are words delimiting a category of person who are to be given privileged treatment in order to promote the objectives of free movement and residence by EU citizens. That policy might well be advanced if the criteria delimiting the category of other family members were set wider. However, that it not what the Directive does. It uses clear words to set the limits of the qualifying category. We do not consider that it is legitimate to use the tool of purposive interpretation to defeat those clearly stated limits and to substitute what would be new and very different criteria.
61. We consider that the combination of the clear language and structure of Article 3(2) of the 2004 Directive, the contrast with Article 3(1) when read with the definition of "family member" in Article 2", and the clear statement of the CJEU that the underlying policy of the Directive is not family reunion suffices to justify our giving effect to that clear language and not making a reference to the CJEU. In the absence of a clear legislative purpose discernible in either the Directive (including its recitals) or the jurisprudence of the CJEU requiring us to conclude that the words "in the country from which they have come" do not mean what they state, we do not consider that it is justifiable to make a reference with the consequent delay to the final determination of these appeals and, in all likelihood, other appeals raising similar issues
62. For these reasons we dismiss the appeals.

Note 1    Case C-162/09 Secretary of State for Work and Pensions v Lassal ECJ, 7 October 2010, at [49] – [50].    [Back]

Note 2    Aladeselu v Secretary of State for the Home Department [2013] EWCA Civ 144    [Back]

Note 3    Case C-83/11 Secretary of State v Rahman [2013] QB 249    [Back]

Note 4    Aladeselu v Secretary of State for the Home Department [2013] EWCA Civ 144    [Back]