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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Ali, R (On the Application Of) v Secretary of State for the Home Department [2023] EWHC 1615 (Admin) (30 June 2023) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2023/1615.html Cite as: [2023] WLR(D) 404, [2024] 1 WLR 1409, [2023] EWHC 1615 (Admin) |
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KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
The King (on the application of ) FATIMA ALI |
Claimant |
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- and - |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Defendant |
____________________
Mr D Blundell KC, Ms J Smyth (instructed by the Government Legal Department) for the Defendant
Hearing dates: 25 April 2023
____________________
Crown Copyright ©
Mr Justice Lane :
A. INTRODUCTION
B. THE CLAIMANT AND HER CASE
C. THE DIRECTIVE
"Irrespective of nationality, the family members of a Union citizen who have the right of residence or the right of permanent residence in a Member State shall be entitled to take up employment or self-employment there."
D. THE WITHDRAWAL AGREEMENT
"1. With the exception of Parts Four and Five, unless otherwise provided in this Agreement, all references in this Agreement to Union law shall be understood as references to Union law, including as amended or replaced, as applicable on the last day of the transition period."
"Article 13
Residence rights
Union citizens and United Kingdom nationals shall have the right to reside in the host State under the limitations and conditions as set out in Articles 21, 45 or 49 TFEU and in Article 6(1), points (a), (b) or (c) of Article 7(1), Article 7(3), Article 14, Article 16(1) or Article 17(1) of Directive 2004/38/EC.
Family Members who are either Union citizens or United Kingdom nationals shall have the right to reside in the host State as set out in Article 21 TFEU and in Article 6(1), point (d) of Article 7(1), Article 12(1) or (3), Article 13(1), Article 14, Article 16(1) or Article 17(3) and (4) of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.
Family Members who are neither Union citizens nor United Kingdom nationals shall have the right to reside in the host State under Article 21 TFEU and as set out in Article 6(2), Article 7(2), Article 12(2) or (3), Article 13(2), Article 14, Article 16(2), Article 17(3) or (4) or Article 18 of Directive 2004/38/EC, subject to the limitations and conditions set out in those provisions.
The host State may not impose any limitations or conditions for obtaining, retaining or losing residence rights on the persons referred to in paragraphs 1, 2 and 3, other than those provided for in this Title. There shall be no discretion in applying the limitations and conditions provided for in this Title, other than in favour of the person concerned."
"Article 15
Right of permanent residence
Union citizens and United Kingdom nationals, and their respective family Members, who have resided legally in the host State in accordance with Union law for a continuous period of 5 years or for the period specified in Article 17 of Directive 2004/38/EC, shall have the right to reside permanently in the host State under the conditions set out in Articles 16, 17 and 18 of Directive 2004/38/EC. Periods of legal residence or work in accordance with Union law before and after the end of the transition period shall be included in the calculation of the qualifying period necessary for acquisition of the right of permanent residence.
Continuity of residence for the purposes of acquisition of the right of permanent residence shall be determined in accordance with Article 16(3) and Article 21 of Directive 2004/38/EC.
Once acquired, the right of permanent residence shall be lost only through absence from the host State for a period exceeding 5 consecutive years."
"Article 17
Status and changes
The right of Union citizens and United Kingdom nationals, and their respective family Members, to rely directly on this Part shall not be affected when they change status, for example between student, worker, self-employed person and economically inactive person. Persons who, at the end of the transition period, enjoy a right of residence in their capacity as family Members of Union citizens or United Kingdom nationals, cannot become persons referred to in points (a) to (d) of Article 10(1).
The rights provided for in this Title for the family Members who are dependants of Union citizens or United Kingdom nationals before the end of the transition period, shall be maintained even after they cease to be dependants."
"(l) the host State may only require family Members who fall under point (e)(i) of Article 10(1) or Article 10(2) or (3) of this Agreement and who reside in the host State in accordance with point (d) of Article 7(1) or Article 7(2) of Directive 2004/38/EC to present, in addition to the identity documents referred to in point (i) of this paragraph, the following supporting documents as referred to in Article 8(5) or 10(2) of Directive 2004/38/EC:
(i) a document attesting to the existence of a family relationship or registered partnership;
(ii) the registration certificate or, in the absence of a registration system, any other proof that the Union citizen or the United Kingdom national with whom they reside actually resides in the host State;
(iii) for direct descendants who are under the age of 21 or who are dependants and dependent direct relatives in the ascending line, and for those of the spouse or registered partner, documentary evidence that the conditions set out in point (c) or (d) of Article 2(2) of Directive 2004/38/EC are fulfilled;
(iv) for the persons referred to in Article 10(2) or (3) of this Agreement, a document issued by the relevant authority in the host State in accordance with Article 3(2) of Directive 2004/38/EC.
E. THE CLAIMANT'S CASE IN DETAIL
"'1. Can Article 2(2)(c) of Directive 2004/38 be interpreted as meaning that a Member State, on certain conditions, can require a direct descendant who is 21 years old or older – in order to be regarded as dependent and thus come within the definition of a family member under Article 2(2)(c) of Directive 2004/38 – to have tried to obtain employment or help with supporting himself from the authorities of his country of origin and/or otherwise to support himself, but that that has not been possible?
2. In interpreting the term "dependant" in Article 2(2)(c) of Directive 2004/38, does any significance attach to the fact that a family member – due to personal circumstances such as age, education and health – is deemed to be well placed to obtain employment and in addition intends to start work in the Member State, which would mean that the conditions for him to be regarded as a relative who is a dependant under the provision are no longer met?"
"22. In order to determine the existence of such dependence, the host Member State must assess whether, having regard to his financial and social conditions, the direct descendant, who is 21 years old or older, of a Union citizen, is not in a position to support himself. The need for material support must exist in the State of origin of that descendant or the State whence he came at the time when he applies to join that citizen (see, to that effect, Jia, paragraph 37).
23. However, there is no need to determine the reasons for that dependence or therefore for the recourse to that support. That interpretation is dictated in particular by the principle according to which the provisions, such as Directive 2004/38, establishing the free movement of Union citizens, which constitute one of the foundations of the European Union, must be construed broadly (see, to that effect, Jia, paragraph 36 and the case-law cited).
24. The fact that, in circumstances such as those in question in the main proceedings, a Union citizen regularly, for a significant period, pays a sum of money to that descendant, necessary in order for him to support himself in the State of origin, is such as to show that the descendant is in a real situation of dependence vis-à-vis that citizen.
25. In those circumstances, that descendant cannot be required, in addition, to establish that he has tried without success to find work or obtain subsistence support from the authorities of his country of origin and/or otherwise tried to support himself.
26. The requirement for such additional evidence, which is not easy to provide in practice, as the Advocate General noted in point 60 of his Opinion, is likely to make it excessively difficult for that descendant to obtain the right of residence in the host Member State, while the facts described in paragraph 24 of this judgment already show that a real dependence exists. Accordingly, that requirement is likely to deprive Articles 2(2)(c) and 7 of Directive 2004/38 of their proper effect.
27. Furthermore, it is not excluded that that requirement obliges that descendant to take more complicated steps, such as trying to obtain various certificates stating that he has not found any work or obtained any social allowance, than that of obtaining a document of the competent authority of the State of origin or the State from which the applicant came attesting to the existence of a situation of dependence. The Court has already held that such a document cannot constitute a condition for the issue of a residence permit (Jia, paragraph 42).
28. Accordingly, the answer to the first question is therefore that Article 2(2)(c) of Directive 2004/38 must be interpreted as meaning that a Member State cannot require a direct descendant who is 21 years old or older, in circumstances such as those in the main proceedings, in order to be regarded as dependent and thus come within the definition of a family Member under Article 2(2)(c) of that provision, to have tried unsuccessfully to obtain employment or to obtain subsistence support from the authorities of his country of origin and/or otherwise to support himself."
"29. By its second question, the referring court asks, in essence, whether, in interpreting the term 'dependant' in Article 2(2)(c) of Directive 2004/38, any significance attaches to the fact that a family member – due to personal circumstances such as age, education and health – is deemed to be well placed to obtain employment and in addition intends to start work in the Member State, which would mean that the conditions for him to be regarded as a relative who is a dependant under the provision are no longer met.
30. In that regard, it must be noted that 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 (see, to that effect, Jia, paragraph 37, and Case C-83/11 Rahman [2012] ECR, paragraph 33).
31. It follows that, as, in essence, has been stated by all the parties which have submitted observations to the Court, any prospects of obtaining work in the host Member State which would enable, if necessary, a direct descendant, who is 21 years old or older, of a Union citizen no longer to be dependent on that citizen once he has the right of residence are not such as to affect the interpretation of the condition of being a 'dependant' referred to in Article 2(2)(c) of Directive 2004/38.
32. Furthermore, as the European Commission has rightly pointed out, the opposite solution would, in practice, prohibit that descendant from looking for employment in the host Member State and would accordingly infringe Article 23 of that directive, which expressly authorises such a descendant, if he has the right of residence, to take up employment or self-employment (see, by analogy, Lebon, paragraph 20).
33. In consequence, the answer to the second question is that Article 2(2)(c) of Directive 2004/38 must be interpreted as meaning that the fact that a relative – due to personal circumstances such as age, education and health – is deemed to be well placed to obtain employment and in addition intends to start work in the Member State does not affect the interpretation of the requirement in that provision that he be a 'dependant'."
Ll"31. On reading Directive 2004/38, it is quite clear that the central element is the citizen who has exercised his freedom of movement within the Union. He is its principal and direct beneficiary. As an indirect result of that, and because separation of the family by distance should not constitute an obstacle to exercise of freedom of movement, the members of the family of a Union citizen who has exercised that freedom are also granted rights, which are not autonomous, but merely derived, that is to say, acquired through their status as members of the beneficiary's family...
"64. Contrary to what the referring court seems to imply, there is no systemic inconsistency in granting a right of residence to a member of the family of a Union citizen because he is a dependant within the meaning of Directive 2004/38, even though the national authorities sense - or infer from the applicant's declared intentions, as seems to be the case in this instance - that the applicant appears to be in a position to integrate into employment in the society of the host Member State. Indeed, and as the Commission has correctly pointed out, the related rights which Directive 2004/38 grants 'irrespective of nationality' to the 'family members of a Union citizen who have the right of residence or the right of permanent residence' include the right 'to take up employment or self-employment [in the host Member State]'."
65. Thus, there are no grounds for the concerns expressed by the referring court in regard to Article 14 of Directive 2004/38. Although the first subparagraph of Article 14(2) of that directive states that 'Union citizens and their family members shall have the right of residence provided for in Articles 7, 12 and 13 as long as they meet the conditions set out therein', it should be pointed out, on the one hand, that Articles 12 and 13, relating to retention of the right of residence by family members in the event of death or departure of the Union citizen and in the event of divorce, annulment of marriage or termination of registered partnership respectively, are not relevant to Ms Reyes's situation. On the other hand, the right of residence for a period of longer than three months is granted to a family member who is not a national of a Member State, accompanying or joining the Union citizen only if the latter - the Union citizen, that is - satisfies or continues to satisfy the conditions referred to in Article 7(1)(a), (b) or (c) of Directive 2004/38. Article 7 of the Directive thus governs what becomes of the right of residence of the family members of the Union citizen when the latter ceases to meet the conditions necessary for the granting, for himself, of a right of residence for a period longer than three months, but is not intended to regulate the situation in which a Union citizen's direct descendant who is over the age of 21, once recognised as a dependant of that citizen and enjoying a right of residence on that basis, ceases to be a dependant by virtue of the fact that he is now gainfully employed in the host Member State. "
66. Finally, it is necessary to deal with the concern of the referring court which sees the granting of a residence permit to a family member who is a 'dependant' of a Union citizen but is nevertheless able to work in the host Member State as the affirmation of a sort of strategy for circumventing national laws on access to employment for third-State nationals, in particular when it is their first entry into the territory of the Union.
67. Admittedly, it cannot be denied that the granting of a right of residence for the family members referred to in Article 2(2)(c) of Directive 2004/38 results, as the European Union legislature expressly envisaged, in access to the labour market of the host Member State. None the less, the circle of beneficiaries of the rights indirectly conferred by Directive 2004/38 is rather narrowly defined and, more specifically as regards Article 2(2)(c) of the directive, the direct descendants who are over the age of 21 must, in any event, be recognised as dependants by the authorities of the host Member State. The Union legislature, on the initiative of the Council, has thus provided a safeguard whilst ensuring that the very essence of family reunification was maintained for the Union citizens concerned. I reiterate that the assessment of the status of a family member who is a dependant of a Union citizen, if carried out in accordance with my suggestion in point 61 of this Opinion, should ensure that artificially created situations are identified and thus reassure the Member States as to the risks to which they believe their labour market to be exposed, a fortiori because the right to enter that market is granted only to the members of the nuclear family as I have described them above.
68. I therefore suggest that the Court's answer to the second question referred should be that, in order to be regarded as a family member who is a 'dependant' of a Union citizen within the meaning of Article 2(2)(c) of Directive 2004/38, the situation of dependence must exist in the applicant's State of origin and must be assessed by the authorities of the host Member State at the time when he applies to join the Union citizen on whom he claims to be dependent. I also invite the Court to make it clear that the fact that the applicant has expressed his intention of working in the host Member State or that he is regarded by the authorities of that State, at the time of submitting his application, as well placed to obtain employment cannot constitute an obstacle to recognition of his status as a family member who is a 'dependant' within the meaning of the abovementioned provision, if it is apparent, moreover, from consideration of his application that he finds himself, in his country of origin, in a genuine situation of dependence on the Union citizen whom he intends to join."
"41. By its sixth question, the national tribunal asks, in essence, whether issue of the residence card referred to in article 10 of Directive 2004/38 may be conditional on the requirement that the situation of dependence for the purposes of article 3(2)(a) of that Directive has endured in the host Member State."
42. With regard to issue of the residence card referred to by Directive 2004/38, the European Union legislature essentially confined itself to listing, in article 10 of that Directive, the documents to be presented in order to obtain such a card, which is then to be furnished within six months from the date on which the application was submitted.
43. So far as concerns the applicants envisaged in article 3(2)(a) of Directive 2004/38, article 10 of the Directive states that those applicants must present inter alia 'a document issued by the relevant authority in the country of origin or country from which they are arriving certifying that they are dependants … of the Union citizen'.
44. The legislature did not settle, either in that provision or in other provisions of Directive 2004/38, the question whether family Members of a Union citizen who do not fall under the definition in article 2(2) of the Directive and who apply for issue of a residence card by presenting a document, issued in the country from which they have arrived, certifying their dependence on that Union citizen can be refused a residence card on the ground that, after their entry into the host Member State, they have ceased to be dependants of that citizen.
45. The answer to the sixth question therefore is that the question whether issue of the residence card referred to in article 10 of Directive 2004/38 may be conditional on the requirement that the situation of dependence for the purposes of article 3(2)(a) of that Directive has endured in the host Member State does not fall within the scope of the Directive."
F. DISCUSSION
" 117… it is hard to derive reliable general principles from decisions of the Court of Justice, which, necessarily, answer a question or questions which have been referred by a national court, and which have been referred on the facts of a particular case. Second, the reasoning in the decisions of the Court invites selective readings of sentences or paragraphs which make it harder, not easier, to work out what the relevant principles are …".
"But the very banality of the principle must suggest a doubt as to whether merely to state it can provide an answer to the kind of problem which arises in this case. Of course a person should be uniformly treated, unless there is some valid reason to treat them differently. But what counts as a valid reason for treating them differently? And, perhaps more important, who is to decide whether the reason is valid or not? Must it always be the courts? The reasons for not treating people uniformly often involve, as they do in this case, questions of social policy on which views may differ. These are questions which the elected representatives of the people have some claim to decide for themselves" (109E).
G. DECISION