By Georgios Milios
On 16 January 2014, the CJEU ruled on case Reyes regarding dependent family members in the EU free movement law. The Court was asked to consider whether a family member of an EU/EEA citizen can be required to have unsuccessfully searched for employment in the country of origin in order to be regarded as a ‘dependant’ and whether for the interpretation of the same notion any importance should be attached to the intention of the family member to find employment in the host Member State.
In its judgment, the Court stated that family members cannot be required to prove that they have searched for a job in the country of origin and that whether they will eventually manage to find employment in the host Member State is an irrelevant factor with regards to the interpretation of ‘dependant’. The judgment is useful as it complements the previous jurisprudence of the Court regarding this issue and adds further details on the notion of dependence which is particularly important in the field of immigration law.
In particular, the judgment displays certain similarities with Jia. In this case, the Court considered whether the family member who claims to be a ‘dependant’ of an EU citizen can be required to produce documents which would prove that there is a factual situation of dependence. The Court held that the evidence for the existence of a relationship of dependence between the family member and the EU citizen or his/her spouse can be adduced by any appropriate means and that the residence permit for the family member should not be made conditional upon the submission of a document issued by the country of origin attesting the existence of a situation of dependence.
The facts in Reyes
Ms. Reyes was born in 1987 and is a national of the Philippines. At the age of three she was left at the care of her grandmother as her mother moved to Germany in order to work and be able to support her family in Philippines. It appears that the mother kept constant contact with her family in the Philippines and supported them economically by sending them money on a monthly basis and paying for the children’s tuition. In 2009, the mother moved to Sweden to marry a Norwegian national living in Sweden. Since this marriage, both the applicant and her mother have depended on the Norwegian citizen’s resources, because her mother stopped working as soon as she moved to Sweden. Consequently, Ms. Reyes applied to the Swedish immigration authorities for a residence permit on the grounds that she was a dependent family member of an EEA citizen who had exercised free movement rights.
The immigration authorities rejected her application as, in their view, it was not proved that the money transferred to her by her mother and her new husband was used by the applicant in order to supply her basic needs. The applicant appealed against this decision to the Gothenburg Administrative Court. According to this Court, Ms. Reyes was able to find employment in her country of origin, considering her age, qualifications and work experience and therefore she did not qualify as a ‘dependant’. In her appeal before the Stockholm Administrative Court of Appeal for immigration matters, Ms. Reyes claimed that, despite her studies, she could not find a job in her country of origin due to the high unemployment rate. Therefore, her mother and stepfather’s resources were essential for her survival in the Philippines.
The questions referred to the Court and the Court’s judgment
Both questions referred to the Court of Justice concerned Art. 2 (2) (c) of Directive 2004/38 and more precisely the interpretation of the notion ‘dependant’. The provision reads as follows: ‘2. ‘family member’ means: (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)’. In the case at hand, Ms. Reyes was older than 21 years old when she applied for a residence permit as a family member of an EU citizen and according to the Directive she should prove to be dependent on the EU citizen or his/her spouse in order to be admitted in the host Member State.
In these circumstances the Court decided to refer the following questions for a preliminary ruling to the CJEU: 1) whether for the purposes of Art. 2 (2) (c), Member States can require the direct descendant who is older than 21 years to have tried, without success, to obtain employment in the country of origin in order to be regarded as ‘dependant’ and fall within the scope of the provision; and 2) whether in interpreting the term ‘dependant’ any significance should be attached to the fact that the family member is, due to the personal circumstances such as age, education and health, deemed to obtain employment in the host Member State, which would mean that the conditions of dependence will no longer be met.
In a rather brief judgment, the CJEU gave a negative answer to both questions. As regards the first question, the Court noted that for a family member to be regarded as a ‘dependant’ in the sense of Art. 2 (2) (c) of Directive 2004/38, s/he must show that s/he is materially supported by a Union citizen exercising his/her free movement rights, or by the latter’s spouse. Furthermore, in determining the existence of the dependence, the host Member State must assess whether the family member is not in a position to support himself or herself in the country of origin at the time when s/he applies for a residence permit in order to join the Union citizen in that Member State. However, according to the CJEU, ‘there is no need to determine the reasons for that dependence or therefore for the recourse to that support’. The fact that the Union citizen or his/her spouse are sending a sum of money to the family member, necessary for the latter to support himself or herself, is sufficient evidence that s/he is in a real situation of dependence. It follows that the family member cannot be required to prove that s/he has searched for a job or has tried to acquire support from the country of origin in order to be regarded as a ‘dependant’.
As regards the second question, the Court states that any prospects of obtaining work in the host Member State, which would result in the family member no longer being depended on the Union citizen, cannot affect the interpretation of the condition of being a ‘dependant’. A different approach would in practice discourage family members from looking for employment in the host Member State, which would contradict Art. 23 of the Directive that clearly provides family members with a right to employment and self-employment.
There is no doubt that in Reyes the Court follows the Jia line, specifying further its findings in the latter case. It can be argued that the judgment in Jia is already sufficiently clear to answer the first question as the Court had clearly stated there that ‘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’ (para. 36). However, the Court in Reyes seems to go further than that and suggest that ‘the fact that…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’. Therefore, the Court now suggests that mere past remittances, essential for covering basic needs of the dependent family member in the country of origin, are sufficient for establishing a relationship of dependence.
As for the second question, the Court suggests that family members who are accepted in a Member State as dependent family members of an EU citizen should only be dependent prior to their admission in the host Member State. The fact that they might subsequently find employment in the host Member State is irrelevant for the interpretation of ‘dependant’ of the Directive. It can be assumed, although it is not explicitly mentioned in the judgments, that Member States must not withdraw residence permits of family members who became economically independent after they were accepted in the host Member State.
The findings of these cases are particularly relevant for all cases where the dependent person holds qualifications and is ‘expected’ to be able to obtain employment in the country of origin. Although such situation may be seen as ‘suspicious’ by the immigration authorities in different Member States, the latter are not authorised to investigate the reasons why the family member becomes dependent on the Union citizen or his/her spouse or registered partner. A different approach would make it, in the Court’s view, ‘excessively difficult for that descendant to obtain the right of residence in the host Member State’, especially because such evidence is in practice particularly difficult to provide.
It should be concluded that the Court takes a rather favourable approach towards immigrants with regards to the interpretation of Art. 2 (2) (c) of the Directive. This approach seems to be based on the principle according to which the provisions of EU free movement law should be interpreted broadly in order to guarantee the free movement of EU citizens, which constitutes one of the most fundamental freedoms in the EU (see also Lebonpara.23). Therefore, the Court’s judgment in Reyes comes as no surprise. That being said, this judgment is likely to influence the national laws and immigration authorities’ approach with regards to family reunification of third-country nationals as well. In particular, according to the European Commission’s guidance, the concept of dependence in case of family members of third-country nationals should be interpreted with reference to the analogous concept in EU free movement law. In that respect, Reyes has effects that go beyond the mere guarantee of free movement of EU citizens and their family members, and is expected to influence the often stricter national legal regimes concerning family reunification of third-country nationals.
For further reference see also the case comment posted earlier on eutopialaw.