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EU Free Movement and Family Members: The Trouble With Dependence and Descendents

Under Article 2(2)(c) of the  Citizens’ Directive, the descendants of Union citizens (or their partners) may travel with the Union citizen to another EU member state if they are under 21.  If they are over 21, they have to demonstrate dependence upon the Union citizen or partner.

The Court of Justice of the European Union gave its judgment in Case C-423/12 Reyes on 16 January 2014.  In this decision, the court had to determine the interpretation of Article 2(2)(c) in relation to what a Member State can require of over 21 years olds in order to demonstrate their dependence.

Facts of Reyes

An over 21 year old daughter of a Philippine lady married to a Norwegian man residing in Sweden applied for a residence permit as a family member in Sweden.  The daughter had evidence of money which her mother and her stepfather sent to her, but her application for a residence permit as a family member was refused due to the fact that she had not proved that the money had been used to supply her basic needs in the Philippines prior to her travel to Europe.  Ms Reyes appealed against this decision, and the subsequent appeal court’s decision that she could support herself in her country of origin without support from her mother and stepfather.

Questions referred

The referring court asked two main questions, concerning whether the descendant trying to show dependence could provide for their own basic needs, and whether an intention to gain work in the host Member State after benefitting from the status of dependent family member should have an effect on the assessment (para 18).

The Judgment

The CJEU echoed Case C-1/05 Jia in its determination that the existence of a situation of real dependence must be established, that this is a factual situation, and that it must exist in the State of origin (paras 20-22).  The Court found that there was no requirement for a national court to consider the reasons for the dependence upon a Union citizen, in order to follow the principle that the Citizens’ Directive should be broadly construed.  As long as a Union citizen has regularly given support over a significant period to the descendant claiming to be a dependent family member in order for the latter to support themselves in their State of origin, that descendant is shown to be in a situation of real dependence.  There is no additional requirement for the descendant to establish that he/she has tried without success to find work or obtain subsistence support from the authorities of the State of origin/elsewhere in order to support him/herself- such a requirement would be likely to “deprive Articles 2(2)(c) and 7 of Directive 2004/38 of their proper effect” (para 26).

The CJEU found that an over 21 year old descendant’s job prospects within the host Member State do not affect the interpretation of dependant for the purposes of Article 2(2)(c) of the Directive, and agreed with the European Commission that the opposite 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” (para 32).

Comment

While Reyes clarifies the financial requirements on a descendant over the age of 21 before they become a family member for the purpose of the Directive – i.e. they have no obligation to seek social assistance from their state of origin, or attempt to work there, as long as they can demonstrate dependence on funds provided by the Union citizen – it fails to address whether, or to what extent, a TCN dependant descendant is required to remain eligible to be a dependant under the Citizens’ Directive.  The CJEU and Commission are correct that a denial of dependant status due to job prospects in the host state would be contrary to the right of family members to work under Article 23 of the Citizens’ Directive, but the purpose of the family member status for over 21 year olds – i.e. enabling the movement of their Union citizen relative – does not seem to be furthered by an indefinite recognition of a working over 21 year old descendant as a family member.

Future case-law must clarify whether the status of dependant family member is to be an enduring one, as otherwise a temporary dependence could enable many adults otherwise ineligible to work in a given Member State, to join a Union citizen parent or stepparent and stay and work for the duration of that Union citizen’s residence, without any further dependence.  The principles behind the Reyesdecision were applied correctly by the Court, but the practical implications of the status of dependent descendant over 21 seem yet to be fully understood.

Catherine Taroni

PhD Candidate, Durham Law School

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