United Kingdom Asylum and Immigration Tribunal

AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007] UKAIT 00048

ASYLUM AND IMMIGRATION TRIBUNAL

Date of hearing: 1 September 2006

Date Determination notified: 13 June 2007

Before

Mr C M G Ockelton, Deputy President of the Asylum and Immigration Tribunal
Senior Immigration Judge Martin
Immigration Judge Peart

Between

AP and FP	APPELLANT
and
Secretary of State for the Home Department	RESPONDENT

For the Appellant: Mr Jafferji, instructed by Jasvir Jutla & Co.

For the Respondent: Miss O'Connor, Home Office Presenting Officer

DETERMINATION AND REASONS

1. Article 3(2) of Directive 2004/38/EC gives no substantive rights of entry or residence. Such rights are a matter for national legislation only. 2. The procedural rights given in Article 3(2) add little or nothing to the process already applicable in the UK. 3. References to dependence in Directive 2004/38/EC are references to dependence arising from need.

1. The appellants are citizens of India and are sisters. They are married to brothers, who are also citizens of India, but who live with their father in the United Kingdom. The father, whom we shall call "the sponsor", was born in Goa, exercised his right to acquire Portuguese nationality, and further exercised his right of free movement within the European Union to come to the United Kingdom and work here. His sons, the appellants' husbands, joined him in the United Kingdom, apparently in 2002. They have lived here with him ever since. In March 2005 there was a family visit to India, during which each of the appellants married one of the sponsor's sons. On 8 November 2005 the appellants applied for entry clearance as family members of an EEA national. They were interviewed on 8 December 2005 and subsequently refused. They appealed to the Tribunal against the refusals.

2. Put shortly, the appellants' claim is that they are entitled to entry to the United Kingdom as family members of the sponsor, their father-in-law, on whom it is claimed they are dependent. They claim that at the date of the decisions against which they appeal they were entitled to permission under Article 10 of Regulation (EEC) No. 1612/68, and that, although that Article has since been repealed, they are entitled to succeed in this appeal on the basis of it. Alternatively, they claim that they are entitled to admission under Directive 2004/38/EC of the European Parliament and the Council, which replaced the previous legislation, including Article 10 of Regulation (EEC) 1612/68, and came into effect on 30 April 2006. In connection with that part of their argument, they claim that the Immigration (European Economic Area) Regulations 2006 (SI 1003/2006) (the EEA Regulations) fail properly to implement the 2004 Directive so as to give effect to their rights. Alternatively, they claim that the decisions against which they appeal breach their Convention rights. The respondent relies on the 2006 Regulations and, in particular, contests the claim that the appellants are dependent on the sponsor. These and similar issues are raised in a considerable number of appeals presently before the Tribunal. For this reason the hearing of this appeal took place before a panel consisting of three legally-qualified members with a view to giving guidance on issues including the interpretation of Article 3(2) of the 2004 Directive; the claim that the EEA Regulations do not correctly implement it, and the meaning of dependence for the purposes of both the Directive and the Regulations.

3. We heard submissions from Mr Jafferji and Miss O'Connor on 1 September 2006. We adjourned the appeal part-heard, for two reasons. One was that it was unclear whether we would need to hear evidence. The other was that the decision of the European Court of Justice in Jia v Migrationsverket, Case C-1/05, to the opinion of the Advocate-General in which we had been referred, was thought to be both imminent and relevant. In the result, the Court's judgment was given on 9 January 2007. There was some difficulty in arranging for the resumed hearing, but this eventually took place on 24 April 2007. It was not possible at the resumed hearing to replicate exactly the panel which sat on 1 September 2006. Both parties nevertheless indicated that they were content to treat the submissions made in writing and orally on 1 September 2006 as having been made to us (as in fact they had been made to two of us); and we make our determination on the basis of those submissions and the further submissions made and evidence heard on 24 April 2007.

   The EEA Regulations and the 2004 Directive

4. We must begin by setting out the relevant legislation. The EEA Regulations are applied by paragraph 5 of Schedule 4 to appeals pending on 30 April 2006, the date those Regulations came into effect. In reg 6, there is a definition of "qualified person". We do not need to set it out. In this appeal there is no doubt that the sponsor is a qualified person and that his sons (the appellants' husbands) are not qualified persons. We need to set out parts of regs 7, 8, 11 and 12.

   "Family member

   7. - (1) Subject to paragraph (2) [which is not material for the purposes of this appeal], for the purposes of these Regulations the following persons shall be treated as the family members of another person-

   (a) his spouse or his civil partner;

   (b) direct descendants of his, his spouse or his civil partner who are –

   (i) under 21; or

   (ii) dependants of his, his spouse or his civil partner;

   (c) dependent direct relatives in his ascending line or that of his spouse or his civil partner;

   (d) a person who is to be treated as a family member of that other person under paragraph (3)

   … .

   'Extended family member'

   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).

   … .

   Right of admission to the United Kingdom

   11. – (1) An EEA national must be admitted to the United Kingdom if he produces on arrival a valid national identity card or passport issued by an EEA State.

   (2) A person who is not an EEA national must be admitted to the United Kingdom if he is a family member of an EEA national … and produces on arrival –

   (a) a valid passport; and

   (b) an EEA family permit, a residence card or a permanent residence card.

   … .

   Issue of EEA family permit

   12. – ...1) An entry clearance office must issue an EEA family permit to a person who applies for one if the person is a family member of an EEA national and –

   (a) the EEA national is –

   (i) is residing in the UK in accordance with these Regulations; or

   (ii) will be travelling to the United Kingdom within six months of the date of the application and will be an EEA national residing in the United Kingdom in accordance with these Regulations on arrival in the United Kingdom; and

   (b) the family member will be accompanying the EEA national to the United Kingdom or joining him there and –

   (i) is lawfully resident in an EEA State; or

   (ii) would meet the requirements in the Immigration Rules (other than those relating to entry clearance) for leave to enter the United Kingdom as the family member of the EEA national or, in the case of direct descendants or dependent direct relatives in the ascending line of his spouse or his civil partner, as the family member of his spouse or his civil partner, were the EEA national or the spouse or civil partner a person present and settled in the United Kingdom.

   (2) An entry clearance officer may issue an EEA family permit to an extended family member of an EEA national who applies for one if –

   (a) the relevant EEA national satisfies the condition in paragraph (1)(a);

   (b) the extended family member wishes to accompany the relevant EEA national to the United Kingdom or to join him there; and

   (c) in all the circumstances, it appears to the entry clearance officer appropriate to issue the EEA family permit.

   (3) Where an entry clearance officer receives an application under paragraph (2) he shall undertake an extensive examination of the personal circumstances of the applicant and if he refuses the application shall give reasons justifying the refusal unless this is contrary to the interests of national security.

   … ."

5. In Directive 2004/38/EC ("the 2004 Directive"):

   "Article 2

   Definitions

   For the purposes of this Directive:

   1) 'Union citizen' means any person having the nationality of a Member State;

   2) 'Family member' means:

   (a) the spouse;

   (b) the partner with whom the Union citizen has contracted a registered partnership, 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 the 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);

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

   Article 3

   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."

6. In reg 1612/68, Article 10 was in Title III, headed "Workers' families", and was as follows:

   "Article 10

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

   (a) his spouse and their descendants who are under the age of 21 years or are dependants;

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

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

   3. For the purposes of paragraphs 1 and 2, the worker must have available for his family housing considered as normal for national workers in the region where he is employed; this provision, however must not give rise to discrimination between national workers and workers from other Member States."

   The meaning of "facilitate"

7. It is a crucial part of Mr Jafferji's submissions that the 2004 Directive gives substantive rights to all family members as defined in the Directive, and that the appellants therefore have a right of residence in the United Kingdom. If he is right about that it follows that the EEA Regulations would be incomplete if they did not implement that right.

8. Mr Jafferji derives the right in the appellants' case from Article 3(2). He submits that the Member State's duty to "facilitate" the admission of family members not covered by Article 2(2) is a duty to admit them. He suggests that if it were otherwise, the right apparently given by Article 3(2) would be illusory.

9. In our judgment, the starting-point must be the distinction in the Directive between the close family members defined as "family members" in Article 2(2), who clearly are given substantive rights of free movement and residence by the Directive, and those other members of the family who are comprised within the provisions of Article 3(2). It is clear that the Directive treats these two groups differently; and any proposed interpretation which does not do so must be doomed. What then are the differences? There appear to be three at least.

10. First, by Article 3(1), the Directive is made simply to "apply" to "family members" as defined by Article 2(2); but Article 3(2) does not apply the Directive in any general sense to other members of the family. Secondly, whereas other provisions of the Directive (principally in Chapters II-IV) give rights of entry and residence to EU citizens and their "family members", no such rights are given by the Directive to other members of the family, because the Directive (other than Article 3(2)) does not apply to them, and because the rights are given to EU citizens and their "family members" as defined and not to others. A similar distinction, and similar wording, was to be found in Article 10 of Council Regulation 1612/68, which gave close relatives (as defined) a right to install themselves with a national of a Member State, but required Member States to "facilitate the admission" of other dependent family members. Thirdly, the treatment of other members of the family in Article 3(2) is characterised by the phrase "in accordance with its [sc the host Member State's] national legislation". This is the clearest possible indication that national legislation has a role in the attribution of rights to other members of the family: the position is not therefore entirely regulated by the substantive provisions of the Directive that have force, from the Directive, over the whole of the Union. The distinction between the two categories of family member is thus made even clearer than it was in Article 10 of reg 1612/68, which did not contain these words.

11. Those differences do not mean that Article 3(2) gives nothing to those covered by it. On the contrary, it clearly gives two rights. The first is that, subject to national law, their entry and residence shall be "facilitated". The second is that there shall be "extensive examination" of their circumstances and a justification of refusal. The second of these rights is new. The first is the right previously embodied in Article 10 of reg 1612/68, extended in its scope and clarified in its relation to national law.

12. What, then, does "facilitate" mean? The apparent sense would be to make entry and residence easy, or easier: but it would evidently have to be entry and residence in accordance with national legislation that was made easy or easier. That sounds very much like a prescription about procedure, the substantive rights being given by the national legislation. We think that that is exactly what is meant. If national legislation permits a person's admission, admission is to be facilitated. If not, there is no entry or residence to be facilitated in accordance with national legislation.

13. We bear in mind the important provisions about the procedural aspects of free movement rights in particular, which have been in the relevant legislation since the beginning. Council Directive 68/360/EEC provides in Article 3 that persons who have the substantive rights secured by that Directive shall be allowed by other Member States "to enter their territory simply on production of a valid identity card or passport"; and Article 6 of Council Directive 73/148/EEC prevents a State from requiring anything (from an applicant entitled because of a relationship to someone else) other than the identity card or passport with which the individual entered the country and proof of the relationship. Further, Article 5(1) of Council Directive 64/221/EEC limits the time allowed for making a decision on a first residence permit to six months, and requires that the applicant be allowed to remain temporarily in the country while the decision is made. These provisions are an essential part of provisions for free movement. Movement would not be free if, whatever a person's substantive rights, he could in practice be kept at the border by national requirements for particular documentation or kept out of the country during a long bureaucratic process. Similarly, the movements of the EU national would not be free if his family members might suffer such difficulties at the border: he might be hindered or dissuaded from travel if his family were not easily able to travel the whole journey with him. The considerations for obtaining a residence permit, by a person already within the borders of the state, are not identical, as explained in Chang v SSHD [2001] UKIAT 00012 at [24]-[26]: but, nevertheless, they exist, and a developing law of free movement and residence could be expected to have provisions such as these relating to the recognition of the substantive rights under it.

14. There is equally reason for procedural regulations relating to those whose rights will depend on the national law of the country where the principal proposes to exercise a right of free movement or residence. For in the same way as his rights may be hindered if, at the border, there may be delay or difficulty in admitting a family member who is entitled under EU law to accompany him, so they may be hindered if there may be delay or difficulty in admitting a family member who, although without substantive rights under EU law, is entitled to admission under the law of the country he is seeking to enter. We may use an example. Suppose a person seeking to exercise an EU right of free movement has a niece, whom he would like to accompany him. If he goes to a country where nieces are (under national law) not entitled to admission, he knows in advance that there is no purpose in his niece travelling with him, and so far as EU law is concerned his right of access to the country in question is not hindered because EU law gives no right of admission to nieces. If, however, he chooses a country whose national law allows the admission of nieces, delaying the admission of his niece has the same clogging affect as delaying the admission of any member of his closer family. Similar considerations again apply to a person already in the country who seeks a residence permit: undue delay, or expulsion of the family member while the matter is considered, might well reduce the attractiveness of the country in question for the principal: and that would be a clog or hindrance on his right of free movement and residence.

15. It can thus readily be seen that procedural requirements relating to persons who have no substantive rights under EU law are both explicable and indeed necessary to give full effect to free movement and residence provisions. The new right – of extensive examination and a justification for any refusal – will no doubt serve to ensure that the procedural requirements are observed. We can, we think, be reasonably confident that the procedure for application, reasoned refusal and right of appeal provided under our own legislation meets the requirements of the last sentence of Article 3(2) of the 2004 Directive.

16. We are aware that it has been suggested that the scope of the national legislation to which reference is made in Article 3(2) is itself limited to matters of procedure: in other words, that Article 3(2) is to be read as giving some sort of substantive right to the wider family members to whom it refers, and that the procedural aspects of those rights (only) are subject to national legislation. We do not think that that can be right. First, it would be remarkable if the substantive residence and free movement rights of the wider family members were to be found in Article 3(2) and in such general and vague terms, whereas the rights of Union citizens and their closer family members are so closely defined and circumscribed by the detailed provisions of Chapters II-VI (Articles 4-33) of the Directive. Secondly, we note that the procedural requirements for those relatives that are admitted or allowed to remain in the Member State are in fact prescribed by the Directive. Article 8(5)(e) and (f) cover the formalities for registration certificates, and permit certain documents to be demanded of those within Article 3(2), over and above the requirements to be met by others. Article 10(2)(e) and (f) cover the formalities for residence cards, and require certain documents to be demanded of those within Article 3(2), over and above the requirements to be met by others. In this context the apparent liberty to make national legislation on procedural matters would be largely illusory, and it is in any event inconceivable that there would not be in Article 3(2) a reference to the prescriptions of Articles 8 and 10, if it were really the case that the "national legislation" to which reference is there made were confined to the matters in fact dealt with later in the Directive. It seems to us that the terms of Articles 8 and 10 are a further reason for supposing that the "national legislation" to which reference is made in Article 3(2) is national legislation which may, but is not obliged to, confer substantive rights of free movement and residence on those family members covered by that paragraph.

17. Article 7(4) of the Directive is a clear pointer to the conclusion that no rights of residence are conferred by Article 3(2). Article 7 as a whole is concerned with rights of residence for over three months. Paragraph (1) gives the right to certain Union citizens, including in subparagraph (c) students, and in subparagraph (d) Union citizens who are family members accompanying Union citizens. Paragraph (2) gives the right also to family members who are not themselves Union citizens, who accompany or join Union citizens. "Family member" has, of course, the meaning given by Article 2(2): that is to say, we are concerned here with close family members. Paragraph (4) is as follows:

    "By way of derogation from paragraphs 1(d) and 2 above, only the spouse, the registered partner provided for in Article 2(2)(b) and dependent children shall have the right of residence as family members of a Union citizen meeting the conditions under (c) above. Article 3(2) shall apply to his/her dependent direct relatives in the ascending lines and those of this/her spouse or registered partner."

    This is very revealing. The right of residence does not accrue to all the "family members" of students. It accrues only to a narrower group. The other "family members" of a student do not have the right of residence but Article 3(2) applies to them. It appears to us to follow that Article 3(2) does not give a right of residence to those within it.

18. So far as this appeal is concerned the position is that we do not accept that Article 3(2) gives, or is intended to give, or has to be read as giving, any right of free movement or residence to those who have no such right apart from it. Any such rights will be dependent on national law, which, however, has to be administered in accordance with the requirements of facilitation, extensive examination and justification of refusal.

19. We note that this conclusion is entirely in line with that reached by Turner J in R (McCollum) v SSHD [2001] EWHC Admin 584 We were not referred to that decision, although it may be the only decision of any of the superior courts on the meaning of "facilitate". We have not relied on it as it was an interpretation of different European legislation and in a rather different context. We take comfort, however, from the fact that we have not found it necessary to differ from it. The decision of this Tribunal in SY and others [2006] UKAIT 00024 is to the same effect. Our conclusion appears also to be supported by the official Table of Correspondence between Directive 2004/38/EC and Current EC Legislation on Free Movement and Residence of Union Citizens within the EU, where the comment on the final sentence of Article 3(2) of the Directive is:

    "New: The obligations on Member States entailed by the 'facilitation' are defined, which is new."

20. There is no suggestion here that the "facilitation" entails anything other than the right to be examined and to have full reasons for any refusal. In particular, it is impossible to read this entry in the Table of Correspondence as meaning that the "facilitation" entails a substantive right of entry or residence.

    The requirements of the law and the scope of an appeal

21. Both the Directive and the EEA Regulations make dependence one of the relevant factors in considering whether his wider family members should be allowed to enter or reside with a Union citizen. For the Directive, the "facilitation" and the right to extensive examination and properly motivated refusal apply to "any other family members ... who, in the country from which they come, are dependants or members of the household of the Union citizen having the primary right of residence". As we have explained above, however, these rights under the Directive are procedural only and the Directive does not itself give any such family member a right of movement to or residence in a Member State. The latter rights depend on national legislation. The legislation is question is reg 12(2) of the Immigration (European Economic Area) Regulations 2006, which we have set out above. This gives a discretion to issue an EEA family permit in certain circumstances to an "extended family member" as defined by reg 8, which is also set out above. Taking these two regulations together, the national legislation therefore requires first that a person claiming as an extended family member be in one of the categories set out in reg 8. Secondly, he must fulfil the requirements in reg 12(2)(a) and (b). If (but only if) he does so, he has an expectation that the relevant officer will consider whether to exercise in his favour the discretion conferred variously by the terms of reg 12(2)(c) and the word "may" which governs all the provisions of reg 12(2). The process of examination and the giving of reasons for any refusal are in reg 12(3) and are exactly in accordance with the requirements of the Directive.

22. In order to succeed in an appeal against such a refusal, an appellant must undertake a similar process. He must first show that he is an "extended family member" within the meaning of reg 8. If he fails to do so, nothing else matters for the purposes of the Directive and the EEA Regulations. If he is an extended family member, the next question is whether he meets the requirements of reg 12(2)(a) and (b). If he does not, he has no right to consideration for the exercise of the discretion. If he does, and the discretion has been exercised against him, he can challenge it on the ground that it breaches a right of his under the Treaties or other EU legislation (this is s 84(1)(d) of the Nationality, Immigration and Asylum Act 2002 as applied by s 109 of that Act and Schedule 1 to the EEA Regulations). Although his rights are (merely) procedural rights, this challenge is not on that account nugatory. In the first place, we remind ourselves that the Directive applies equally to all Member States. The practice in the United Kingdom is to conduct an examination and justify any refusal in the vast majority of requests, so Article 3(2) may add little. In another Member State, without such practices already established, the requirement of detailed examination and reasoned refusal might be a substantial change. Even in the United Kingdom it is possible to envisage that a person who met the requirements of regs 8 and 12(2)(a) and (b) might be able to have a decision set aside for failure to comply with the requirements of full examination and the giving of reasons for refusal. One possibility might be that the officer had wrongly thought that the appellant did not meet the requirements of the Regulations, so had failed to conduct an examination of the nature required by them.

23. Alternatively, an appellant might argue that the decision to refuse him was "otherwise not in accordance with the law". This is s 84(1)(e) of the 2002 Act, applied as before. If he showed that the officer had failed to exercise his discretion at all, or had failed to exercise it lawfully, that would no doubt suffice to have the decision set aside.

24. Further, as we have held elsewhere ^[1], the combination of s84(1)(d) and s86(3)(b) of the 2002 Act gives the Tribunal jurisdiction to review the exercise of a discretion in a case where the appellant comes within both the terms of Article 3(2) and the definition of "extended family member" in reg 8.

25. For completeness we should add that in cases of exclusion or expulsion the process under Chapter VI of the Directive depends on a discretionary exercise of individual judgment: in other words, the discretion is itself part of EU law. Here again, and perhaps more obviously, the discretion is reviewable as a result of the combination of s84(1)(d) and s86(3)(b).

    Dependence and dependants

26. There are three possibly relevant notions of dependence for the purposes of cases such as this. First as we have seen, there is a reference to dependants in Article 3(2) of the Directive, as persons who have, subject to national law, the procedural advantages given by that Article. Secondly, the EEA Regulations, at reg 8(2) define "extended family member" partly in terms of dependence. Thirdly, reg 8(4) defines "extended family member" alternatively by reference to qualification under the Immigration Rules, which themselves may contain a requirement of dependence on the sponsor.

27. There are at least two possibly relevant definitions of dependence for these purposes. The Immigration Rules require that a person seeking admission as a dependent relative be "wholly or mainly dependent" on the family member he seeks to join (Statement of Changes in Immigration Rules, HC 395, paras 317(iii)), and the authorities establish that, for these purposes, the dependence must be of necessity, not of choice (Zaman v ECO Lahore [1973] Imm AR 71; Musa v ECO Bombay [1976] Imm AR 28). Where the requirement of dependency is outside the Rules but is instead imposed by regulations introduced with reference to EU free movement legislation, the Tribunal, interpreting regs 6(4) and 10(4) of the Immigration (European Economic Area) Regulations 2000 (SI 2000/2326), implementing reg (EEC) No 1612/98 of the Council of 15 October 1968, in PB and others [2005] UKIAT 00082 said at [8]:

    "In deciding whether an applicant is a family member for these purposes, it may be necessary to make a finding of fact on dependency. For these purposes, it is clear that dependency is a question of fact. There is no requirement that dependency be of necessity."

28. What is meant by dependence within the EU free movement legislation itself was discussed in Jia. In that case the Court had to consider whether the claimant had established that she was dependent on her son and daughter-in-law within the meaning of Article 1(1)(d) of Directive 73/148/EEC, which set out equivalent rules for the admission of family members of nationals of Member States who sought to establish themselves in another Member State. The Court noted at [35] that "the status of 'dependent' family member is the result of a factual situation characterised by the fact that the material support for that family member is provided by the Community national who has exercised his right of free movement". After further reminding itself that the question is about the circumstances that exist, not the reason for those circumstances, the Court continued:

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

    38. That is the conclusion that must be drawn having regard to Article 4(3) of Council Directive 68/360/EEC of 15 October 1968 on the abolition of restrictions on movement and residence within the Community for workers of Member States and their families (OJ, English Special Edition, 1968(II), p. 485), according to which proof of the status of dependent relative in the ascending line of a worker or his spouse within the meaning of Article 10 of Regulation No 1612/68 is to be provided by a document issued by the competent authority of the 'State of origin or the State whence they came', testifying that the relative concerned is dependent on the worker or his spouse. Despite the lack of precision as to the means of acceptable proof by which the individual concerned can establish that he falls within one of the classes of persons referred to in Articles 1 and 4 of Directive 73/148, there is nothing to justify the status of dependent relative in the ascending line being assessed differently according to whether the relative is a member of the family of a worker or of a self-employed worker."

    So much is clear. Leaving aside for a moment the requirement for proof by a particular document, dependency for the purposes of Directive 73/148/EEC is a matter of need, not of choice. The question is not whether a person does not support himself, but whether he is not in a position to support himself. This position is emphasised in the Court's formal Ruling at the end of the judgment, that "dependent on them" means that the members of the family of a Community national established in another Member State within the meaning of Article 43 EC need the material support of that Community national or his or her spouse in order to meet their essential needs in the State of origin of those family members or the State from which they have come at the time when they apply to join that Community national.

29. A potential difficulty arises, however, from the words of para [36] of the judgment. This is as follows:

    "36. The Court has also held that the status of dependent family member does not presuppose the existence of a right to maintenance, otherwise that status would depend on national legislation, which varies from one State to another (316/85 Lebon [1987] ECR 2811, paragraph 21). According to the Court, there is no need to determine the reasons for recourse to that support or to raise the question whether the person concerned is able to support himself by taking up paid employment. That interpretation is dictated in particular by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly (Lebon, paragraphs 22 and 23)."

30. This appears to be – in fact is – a reference to a different notion of dependence, in which the question is to be settled without regard to need, so that a person can be dependent on another even if he is in a position to support himself. It is certainly rather odd that in the judgment this paragraph is followed immediately, in the next paragraph, by the first of the formulations of a rule of dependence based on need and on a requirement of inability to support oneself. The Court has no formal procedure for reviewing or overruling its previous judgments or revising a view previously expressed and we can only suppose that the reference to the rule in Lebon here, followed by discussion and assertion of a different test and a formal ruling are intended to dictate a new understanding of dependence based on need, whatever may have been said in Lebon. That understanding must, it is clear from the reasoning in Jia (in particular that at the conclusion of para [38] to which we are about to refer) pervade the notion of dependence as an adjunct of or qualification of the rights of free movement of and residence in the free movement legislation as a whole; and the same must be true of the 2004 Directive which replaces it. It follows that the formulation in para [8] of PB may also need revision. In so far as dependence in the EEA Regulations is intended as an implementation of such a requirement in the Directive, it must mean dependence in the Jia sense: that is to say, dependence arising from a need for the support of the national of a Member State.

31. So far as concerns the mode of proof of dependence, it will be apparent, from the extract from the judgment in Jia that we have cited, that the requirement of a document issued by the competent authority of the State of origin or the State from which the applicant came was a feature of Article 4(3) of Directive 68/360/EEC and was under that Directive a requirement for the proof of status and hence entitlement under reg 1612/68. This requirement was not included in Directive 73/148, but according to the Court's judgement in Jia that requirement must be read into that Directive. The Court went on to consider the requirements for the issue of a residence permit under Article 6 of Directive 73/148 and, noting that there was no specific requirement there for any form of proof, held that for these purposes evidence might be adduced by any acceptable means, but that a mere undertaking from the Community national or his or her spouse to support the family members concerned need not be regarded as establishing the existence of the family members' real dependence.

32. The position is now governed by Article 8(5) of the 2004 Directive, which provides that Member States may require such evidence before issuing a registration card to wider family members who claim entitlement as dependants, and Article 10(2)(e), which provides that Member States shall require presentation of such a document by such a person for a residence card to be issued. It is to be noted that although in Article 5(5) the Directive envisages the possibility of Union citizens or family members establishing a right of entry to a Union country without "the necessary travel documents or, if required, the necessary visas", there is no suggestion that a person claiming to be a dependant within Article 3(2)(a) can do so without the document proving dependence. On the other hand, the Article 10(2)(a) requirement does not appear at all in the EEA Regulations. That is permissible, for Article 37 of the Directive allows Member States to grant rights more extensive than those required by the Directive itself; and the removal of a restrictive requirement has the same effect. (We should however observe that a Member State does not necessarily confer an EU right by granting more than the Directive requires. The starting-point in such a case must be that the right in question is good only in the Member State granting it.)

33. In summary, the effect of the decision of the Court in Jia is to import into European law a requirement for dependence to be of necessity, and to reinforce the requirement of proof by the document described in the Directive. In the result, the notion of dependence under the Directive and hence the EEA Regulations is probably little different from that developed under the Immigration Rules, although the Regulations allow dependence to be proved for UK purposes without production of the document normally required by European law.

34. Before leaving the subject of dependence there are two further matters to which we must allude. The first is that both the Directive and the EEA Regulations, are concerned with dependence on a Union citizen (or on the spouse or partner of a Union citizen). The reason for that is that the purpose of the Directive which the EEA Regulations implement is to ensure that Union citizens' rights of free movement and residence can be enjoyed properly. It cannot be sufficient for these purposes to show dependence on a person who is not a Union citizen or the spouse or partner of a Union citizen. This is not to say that dependence cannot be shown when household finances are pooled, as they often are in certain cultures and traditions: but, in such a case, where the source of the household finances is not solely the assets of the Union citizen and his or her spouse or partner, it may be more difficult to prove that any dependence is genuinely dependence on such person rather than on some other member of the family. It will be necessary to look at all the circumstances.

35. The second matter relates to state benefits. Where a person in the United Kingdom receives state benefits for the needs of himself or his family here, we think it likely that it will generally be more difficult to establish that someone abroad is dependent on him within the meaning of the Directive and the EEA Regulations. In the first place, the dependence may well be seen to be on the State rather than on the citizen; but, in particular, where a Union citizen receives both benefits from the state and contributions from another member of his family, and it is as a result of those contributions that he is able to send funds abroad for the support of somebody else, we think that he is generally to be seen rather as a conduit for support provided by another than as himself the source of the third person's income.

    The present appeals

36. The appellants are not the direct descendants of the sponsor or of his spouse. They are not related to a Union citizen in any of the ways set out in Article 2(2) of the 2004 Directive. They are not within Article 3(1) of the Directive and, for the reasons we have given, neither they nor anybody else can derive substantive rights of admission or residence from Article 3(2). They are members of the wider family, whose admission and residence is subject to national legislation. In the United Kingdom the relevant legislation is the EEA Regulations. It is conceded on their part that they cannot meet the requirements of those regulations: they are neither "family members" within reg 7, nor "extended family members" within reg 8. They are entitled neither to admission to the United Kingdom nor to consideration whether the discretion under reg 12(2) should be exercised in their favour. This determination (if not the original refusal) constitutes a justification of the refusal of entry following an extensive examination of their personal circumstances. There is nothing that the 2004 Directive gives them that the EEA Regulations fail to recognise as theirs.

37. Because the question was fully argued before us and in order to give guidance on the approach to the issue of dependence we consider whether the appellants would have succeeded in this appeal if, as Mr Jafferji argued, their entitlement had turned on whether they were dependants of the sponsor or members of his household.

38. We heard oral evidence from the sponsor and from his sons, the appellants' husbands. On the basis of it and of the other evidence before us we find the following facts. The house in India in which the appellants live belongs to the sponsor's mother, who still lives in it. The appellants earn money teaching: they have from this source at least Rs 1,000 per month: that was the amount stated by the sponsor but the second appellant's husband gave her income as Rs 1,000-2000 per month. Their husbands and the sponsor believe that the appellants need Rs 5,000 – 6000 per month between them (about £30 each) in order to meet their expenses. The appellants' husbands both have (and had at the date of the decision) jobs in the United Kingdom, each earning £800-900 per month at the date of the decision and more now. Both give the bulk of their wages to their father for the family's general expenses: the first appellant's husband said he gives his father £400-500 per month or more if needed, and the second said he gives what he has, £500-1000 per month. Money is sent from the United Kingdom to the appellants in India. The first appellant's husband said that he sends his wife some money "or sometimes Dad" does. The second appellant said that he gives money to his father, who sends it; but he also gives money to his wife if someone is travelling to India. He remembered giving her £50 this way a couple of months ago.

39. Much of the oral evidence related to the date of the hearing, but it is not said that the position at the date of the decision was in any real sense different. The documentary evidence supported what was said about the income of the household in the United Kingdom; there is evidence of the remittances in the form of photocopies of Postal Orders said to have been sent to India and more recent Western Union transfer orders.

40. Looking at the facts in the round, as we do, we are entirely unpersuaded that the appellants are or were at any time dependent on the sponsor. The house in which they live is not his; they have some income of their own; the remittances from the United Kingdom come from a common fund; major contributors to that fund are their husbands, who would properly be expected to provide for their support. Of course, neither a legal obligation to support nor an expectation proves dependence; but the fact is that one would expect the appellants' husbands to maintain them if they could, and that is exactly what appears to be happening, although the money is sent often (not always) through the sponsor. It is not enough to say that the custom or culture in this family is to have a common fund: that may well be so, but for the purposes of the Directive and the EEA Regulations the appellants need to show that their dependence (if any) is on the Union citizen (or his wife, although that possibility is not live in this appeal), not on somebody else. That they have signally failed to do.

41. For completeness we should add that it is quite unarguable that they have at any time been members of the sponsor's household. The house they live in is not his; and they have not lived in it at the same time as he has, although he has stayed there during his short visits to India since their marriages.

42. The appellants are not (and at the date of the decision were not) dependants or members of the household of a Union citizen within the meaning of the 2004 Directive and so would not in any event be entitled to claim the benefits of Article 3(2) that Mr Jafferji argued they could claim.

    Article 24 of the 2004 Directive

43. Mr Jafferji also mounted an argument based on Article 24 of the 2004 Directive, which reads as follows:

    "Article 24

    Equal treatment

    1. Subject to such specific provisions as are expressly provided for in the Treaty and secondary law, all Union citizens residing on the basis of this Directive in the territory of the host Member State shall enjoy equal treatment with the nationals of that Member State within the scope of the Treaty. The benefit of this right shall be extended to family members who are not nationals of a Member State and who have the right of residence or permanent residence.

    2. By way or derogation from paragraph 1, the host Member State shall not be obliged to confer entitlement to social assistance during the first three months of residence or, where appropriate, the longer period provided for in Article 14(4)(b), nor shall it be obliged, prior to acquisition of the right of permanent residence, to grant maintenance aid for studies, including vocational training, consisting in student grants or student loans to persons other than workers, self-employed persons, persons who retain such status and members of their families."

44. He submitted that the appellants' husbands ought by reason of this provision to have the same rights to bring their wives to the United Kingdom for settlement as they would have if they were themselves citizens of the United Kingdom. We are unable to accept that submission.

45. In the first place, it does not appear to us that Article 24 is intended to give such rights to those who, not being Union citizens, have a right of residence under the directive. The rights to which paragraph (2) of the Article makes reference are an indication of the scope of the Article in general; and in any event the possibility of family reunion (by migration of family members into the European Union) for persons who are not themselves Union citizens is not "within the scope of the Treaty". It is, after all, "Citizens of the Union", and not others, who enjoy "the rights conferred by this Treaty" (Article 17 of the Treaty). Although, in order to secure true freedom of movement and residence, rights of free movement and residence are extended to certain family members who wish to accompany or join the Union citizen, and although those rights necessarily give rise to further rights to such things as access to the labour market and social assistance, there is no reason to believe that it is intended that the Treaty envisages those persons (whose rights are secondary to those of the Union citizen) themselves having rights to have their families with them.

46. Further, in the present case, even if the principle were as stated by Mr Jafferji, the right would not accrue. For it is difficult to see that the present residence of the appellants' spouses in the United Kingdom is "on the basis of this Directive". It is true that their admission here was as family members of their father, but they were over 21 when they came and we have not heard that they were dependent on him – they both obtained good jobs immediately on their arrival and have retained them. Their admission appears to have been as a result of provisions more generous than those of the Directive being implemented by the United Kingdom authorities. Admission under provisions more generous than those of the Directive is not admission under the Directive unless the latter's requirements would in any event have been fulfilled; and the resulting residence in such a case is not residence "on the basis of" the Directive.

47. The argument based on Article 24 therefore fails.

    Human Rights and discrimination

48. Mr Jafferji also submitted that if the appellants were unable to join their husbands in the UK, that would be discrimination against them contrary to Article 14 taken with Article 8 of the European Convention on Human Rights. The argument is as follows. The appellants' husbands are lawfully in the United Kingdom. If their father had not been an EU national and they had accompanied him to the United Kingdom, they would have been granted indefinite leave to remain as his sons, and would be settled here within the meaning of the Immigration Acts. As UK residents who are earning enough to support their dependants, they would, if they were settled in the United Kingdom, be able to sponsor their wives for admission to the United Kingdom under paragraph 281 of HC 395. The fact that they are not settled means they cannot do so. That, it is said, shows that there is discrimination for these purposes against the families of EU nationals. The discrimination is on ground of national origin, and (because it prevents husband and wife living together) falls within the ambit of Article 8.

49. The problem with this argument in our view is that the starting-point is wrong. The sponsor's sons could have been admitted to the UK and given indefinite leave to remain under the Rules as his dependants if and only if the sponsor had himself been entitled under the Rules to admission for settlement. But the sponsor has no claim at all under the Rules. He is here because and only because he has an EU right of free movement. If it were not for that, he would require a work permit and there is no reason to suppose that he would have obtained one. The residence here of the sons is not something less than they would have if their father had been subject to the Immigration Rules: it is much more. There is no discrimination against the appellants or their husbands.

50. The final matter that we need to deal with is Article 8. Mr Jafferji submitted that refusing to allow the appellants entry to and residence in the United Kingdom breached their rights under Article 8. The position is, however, that the marriages were entered into as transnational marriages and have continued as such. The parties to such a marriage are not, in general, entitled to choose their place of residence without being subject to national law: Abdulaziz & others v UK (1985) 7 EHRR 471. There is no material before us to show that the appellants have any right to admission to the United Kingdom beyond the Immigration Rules. We reject the claim that applying the Immigration Rules to them breaches their Convention rights.

    Conclusion

51. For the foregoing reasons the appellants' appeals are dismissed.

    C M G OCKELTON

    DEPUTY PRESIDENT

    Date: