Rahman – further fleshing out of the position of third country nationals under the Citizenship Directive

Christopher Brown and Anita Davies

On 5 September 2012 the Grand Chamber of the CJEU gave judgment in Case C-83/11 Secretary of State for the Home Department v Rahman and Ors.  This case had been referred to the CJEU by the Upper Tribunal (IAC) here in the UK.  The questions referred concerned the interpretation of Article 3(2) of Directive 2004/38, also known as the Citizenship Directive.  We think it is an interesting judgment, particularly for immigration practitioners, and so (rather later than planned) here is a short synopsis and comment.

Article 3(2) reads as follows:

“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, not falling under the definition in [Article 2(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.”

The family members referred to in Article 3(2)(a) are ‘extended’ family members: Article 2(2) covers spouses, registered partners, direct descendants of the EU citizen or his/her spouse/partner under the age of 21 (or who are dependants), and “dependent direct relatives in the ascending line” (i.e. parents etc).

The facts of the case, in short, were that the three individuals in question were all Bangladeshi nationals. They were all relatives (brother, half-brother and nephew, respectively) of Mr Mahbur Rahman, who had married an Irish national working in the UK.  Following the wedding, the three relatives applied for EEA family permits so as to obtain the right to reside in the UK as Mr and Mrs Rahman’s dependants.  Such permits were initially refused but, on appeal, the Asylum and Immigration Tribunal (as it was then known) found that they were entitled to benefit from the provisions of Article 3(2) of the Directive.  Consequently, they were issued with permit and were able to join Mr and Mrs Rahman.  They then applied for residence cards –but were refused on the basis that they had not proved that they had resided with the EU citizen, Mrs Rahman, in the same EEA Member State before she came to the UK, or that they continued to be dependent on her or were members of her household.  Following a successful appeal by the three men, the Secretary of State appealed to the Upper Tribunal (UT), which, in the course of a detailed order, made a reference to Luxembourg.  The UT asked various questions about Article 3(2), including whether it required the UK to make legislative provision to facilitate the entry/residence of third country nationals who could meet the requirements of Article 10(2) and whether it was of direct effect.

The Court’s answer to those questions is set out at paras 18 ff. After noting the distinction in the Directive between ‘close’ and ‘extended’ family members, the Court held:

“21      Whilst it is therefore apparent that Article 3(2) of Directive 2004/38 does not oblige the Member States to accord a right of entry and residence to persons who are family members, in the broad sense, dependent on a Union citizen, the fact remains, as is clear from the use of the words ‘shall facilitate’ in Article 3(2), that that provision imposes an obligation on the Member States to confer a certain advantage, compared with applications for entry and residence of other nationals of third States, on applications submitted by persons who have a relationship of particular dependence with a Union citizen.

22      In order to meet that obligation, the Member States must, in accordance with the second subparagraph of Article 3(2) of Directive 2004/38, make it possible for persons envisaged in the first subparagraph of Article 3(2) to obtain a decision on their application that is founded on an extensive examination of their personal circumstances and, in the event of refusal, is justified by reasons.

23      As is clear from recital 6 in the preamble to Directive 2004/38, it is incumbent upon the competent authority, when undertaking that examination of the applicant’s personal circumstances, to take account of the various factors that may be relevant in the particular case, such as 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.

24      In the light both of the absence of more specific rules in Directive 2004/38 and of the use of the words ‘in accordance with its national legislation’ in Article 3(2) of the directive, each Member State has a wide discretion as regards the selection of the factors to be taken into account. None the less, the host Member State must ensure that its legislation contains criteria which are consistent with the normal meaning of the term ‘facilitate’ and of the words relating to dependence used in Article 3(2), and which do not deprive that provision of its effectiveness.

25      Finally, even though, as the governments which have submitted observations have correctly observed, the wording used in Article 3(2) of Directive 2004/38 is not sufficiently precise to enable an applicant for entry or residence to rely directly on that provision in order to invoke criteria which should in his view be applied when assessing his application, the fact remains that such an applicant is entitled to a judicial review of whether the national legislation and its application have remained within the limits of the discretion set by that directive.”

(Emphases added)

The Court by and large adopted the Opinion of Advocate General Bot, although a significant difference is that while the Opinion suggested that Article 3 (2) could be relied on directly in national courts to disapply requirements that would restrict its scope, the Court instead opted for the lesser ‘reassurance’ of judicial review.  As The European Law Blog has pointed out, the Court appears to be increasing its reliance on judicial review as a way of holding Member States to their duties, signalling “a generally unwavering trust in the judicial profession in the Member States [or] keeping the door at least potentially open for future preliminary references”.

The Court went on to find that in order to fall into the category of family members ‘dependent’ on a Union citizen it was not necessary for an applicant to have resided in the same state as the citizen and to have been a dependent shortly before or at the time when the citizen settled in a member state. The Court noted that that purpose of Citizenship Directive  was to ‘maintain the unity of the family in a broader sense’ by facilitating entry and residence for persons who did not fall under Article 2(2) but who nevertheless maintain close and stable family ties. Such ties could exist without the family member of the Union citizen having resided in the same State or having been a dependant of that citizen shortly before or at the time when the latter settled in the host State.

The Court made it clear that the key to falling under Article 3(2) is establishing a tie of dependence at the time of the application to join the citizen, rather than at the time when the citizen decided to settle in the host state. Such a decision is sensible, otherwise the Directive would operate to exclude applications from individuals who, at the time the citizen settled in the host state were independent, but due to changing financial or health circumstances, later become dependent upon the Union citizen. Such an operation would go against the intentions stated in the preamble to the Directive. In establishing ‘dependence’ Member States have a discretion as to the particular requirements of the nature and duration of dependence, provided these are consistent with the normal meaning of ‘dependence’ and do not deprive Article 3(2) of its effectiveness. The example given in AG Bot’s Opinion of an impermissible requirement was that of a national provision providing that, in order to be able to benefit from a right of residence, a national of a non-member country had to prove that he had been dependent on the Union citizen for more than 20 years.

The Court did not answer the sixth question referred, of whether dependency on which the other family member relies in order to be admitted to the Member State had to continue for a period or indefinitely in the host State for a residence card to be issued or renewed pursuant to Article 10 the Directive. The Court ruled that it did not fall within the scope of the Directive.

The decision is of real practical interest for practitioners in this area.  It confirms that the duty to “facilitate” is not a collection of words without substance: whilst the Member States have a margin of discretion as to the factors to take into account, the competent authority will nonetheless need to demonstrate which factors it took into account and that those factors are consistent with the expression “facilitate”. The decision imposes similar restrictions with regard to Members States’ discretion in making a finding of “dependency”.  The Court has (unsurprisingly) confirmed, too, that the decision must be judicially reviewable.  No doubt, therefore, this will not be the last word on the subject from the (domestic or EU) courts.

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