Bigia & Ors v Entry Clearance Officer [2009] EWCA Civ 79

“57. The following propositions can be drawn from this survey of the authorities. 58. First, it is the uniform jurisprudence of the ECJ that the rights of free movement by Union citizens who are workers or self-employed created by Regulation 1612/68 and Directive 73/148 were limited to rights to move within the Community. 59. Second, there is no reason to think that the right of free movement for Union citizens generally created by Directive 2004/38 is any different in that respect, and positive reasons, for instance in recital (2) to Directive 2004/38, to support the argument of continuity. 60. Third, the reason for providing rights to relations of Union citizens is to ensure that Union citizens are not deterred from exercising their rights of movement within the Community: see §§ 30-38 above, and the analysis of Akrich in §§ 44-46 above. 61. Fourth, as Akrich provides, an assertion of movement rights by a relation of an Union citizen will be tested against the justification for those rights indicated in §60 above, even in cases where the legislation appears to provide for movement rights by virtue of a relationship alone. 62. Fifth, all of the authority relates to the position of Article 2 family members. MRAX and Commission v Spain may indicate that such family members can obtain access to the Community by reason of their relationship alone, but there is no justification for reading that proposition across into the position of OFM. The latter obtain access not by virtue of a relationship alone, but only if they fulfil the conditions specifically laid down in Article 3(2)(a). 63. Sixth, Jia is not authority for any general proposition that it is unlawful to demand a relation’s presence (lawful or otherwise) in a member state before he exercises his rights of movement, and therefore is not authority for reading that proposition into the construction of Article 3(2)(a). 64. If therefore we turn to the construction of Article 3(2)(a), the general issue common to both appeals which we identified in §2 above is whether the provision that OFM have to be dependants or members of the household of the Union citizen “in the country from which they have come” means, as Regulation 8(2)(a) provides, that “the country” has to be the EEA state in which the Union citizen also resides. 65. The basic point can be put quite shortly. No family members have rights of residence unless the Union citizen exercises his own right to move to or reside in a member state of which he is not a national. Article 3.1 of Directive 2004/38 provides that Article 2 family members obtain the benefit of the Directive if they accompany or join such Union citizens. Although not specifically so stated, it is hardly likely that an OFM will not be also so required to be accompanying or joining his relevant Union citizen. The tight relationship between the exercise of rights by the Union citizen and the requirement that the OFMs accompanying or joining him should have been his dependants or members of his household in the country from which they have come very strongly suggests that that relationship should have existed in the country from which the Union citizen has come, and thus have existed immediately before the Union citizen was accompanied or joined by the OFM. It seems wholly unlikely that when Article 10(2) of Regulation 1612/68 and Article 3(2)(a) of Directive 2004/38 introduce the requirement of dependence on and membership of the household of the Union citizen in the country from which the OFM has come, they can have had in mind anything other than dependence on the Union citizen in the country movement from which by the Union citizen is the whole basis of his rights and, thus of the rights of the OFM. 66. That consideration is reinforced not only by the requirement that the OFM must be accompanying or joining the Union citizen, but also by the justification for ancillary rights of movement in terms of not deterring the Union citizen from exercising the primary right (see §60 above). The analysis of the ECJ in Akrich addressed actual but unlawful presence of the family member in the original member state. But the argument that “the country” in Article 3(2)(a) means any country at all, whether or not the Union citizen is there at the time of movement, assumes that the OFM rules will extend to cases where the OFM is not present in the original member state at all, even unlawfully. It is hard to see how the Union citizen will be deterred from exercising his right to move from one member state to another by the prospect of not being able to take with him an OFM who was once, in another state, but is not now, a member of his household. 67. So far so good. But the argument goes no further than to establish that in order to exercise an OFM’s ancillary rights the dependence or membership of household must be in the same country as that from which the Union citizen is moving. Regulation 8(2)(a) however requires the OFM to have been a dependant or a member of the household of the Union citizen in the EEA state in which the Union citizen resides. 68. In most cases, including those addressed in these appeals, the country relevant to the rights of the Union citizen will indeed be a member state, because his rights will be based on movement, which the jurisprudence indicates will normally be movement within the Community. That however leaves the so far unresolved position of the Union citizen who wishes to enter a member state other than his own, being a person who has never lived in his own member state, or has lived in a third country for a substantial period of time: see §§ 29-31 above. The most that can be said about the impact of such cases is that, provided Community law sees the need to accommodate them under the freedoms of movement of Union citizen, they would undermine the position of Regulation 8(2)(a) in interpreting Article 3(2)(a) of Directive 2004/38 as requiring “the country from which they have come” as necessarily being an EEA state.”

“Article 3(2)(a) is expressed in the present tense: in the country from which they have come are dependants or members of the household of the Union citizen. That cannot be disregarded either as a matter of construction or as a matter of common sense. The article speaks in the present tense because it assumes that the case of the OFM will be adjudicated upon at or near to the same time as that of the Union citizen whom he is accompanying or joining. While it will not literally be the case that he is at that time still dependant on the Union citizen or a member of his household in the country from which he has come, it makes sense that he should have been so dependant or a household member very recently. It makes no sense to suppose that this requirement of current dependency or household membership can be fulfilled by demonstrating in 2008, or in 2000, that KG or AG lived in the Union citizen’s household until 1992.”

“These Regulations shall not apply to a family member unless the family member is lawfully resident in another Member State and is – (a) seeking to enter the State in the company of a Union citizen in respect of whom he or she is a family member; or (b) seeking to join a Union citizen, in respect of whom he or she is a family member, who is lawfully present in the State.”

“49. … no provision of Directive 2004/38 makes the application of the directive conditional on [family members] having previously resided in a Member State. 50. The definition of family members in point 2 of Article 2 of Directive 2004/38 does not distinguish according to whether or not they have already resided lawfully in another Member State … 52. … the fact that Article 5(2) provides for the entry into the host Member State of family members of a Union citizen who do not have a residence card shows that Directive 2004/38 is capable of applying also to family members who were not already lawfully resident in another Member State … 54. Directive 2004/38 must be interpreted as applying to all nationals of non-member countries who are family members of a Union citizen … and as conferring on them rights of entry and residence in that Member State, without distinguishing according to whether or not the national of a non-member country has already resided lawfully in another Member State … 58. It is true that the Court held in … Akrich that, in order to benefit from the rights provided for in Article 10 of Regulation 1612/68, the national of a non-member country who is the spouse of a Union citizen must be lawfully resident in a Member State when he moves to another Member State to which the citizen of the Union is migrating or has migrated. However, that conclusion must be reconsidered. The benefit of such rights cannot depend on the prior lawful residence of such a spouse in another Member State (see, to that effect, MRAX, paragraph 59 and Case C-157/03, Commission v Spain, paragraph 28. 59. The same interpretation must be adopted a fortiori with respect to Directive 2004/38 …. As is apparent from recital (3) in the preamble to Directive 2004/38, it aims in particular to ‘strengthen the right of free movement and residence of all Union citizens’, so that Union citizens cannot derive less rights from that directive than from the instruments of secondary legislation which it amends or repeals … 62. If Union citizens were not allowed to lead a normal family life in the host Member State, the exercise of the freedoms they are guaranteed by the Treaty would be seriously obstructed … 64. The refusal of the host Member State to grant rights of entry and residence to the family members of a Union citizen is such as to discourage that citizen from moving to or residing in that Member State, even if his family members are not already lawfully resident in the territory of another Member State … 70. Consequently, Directive 2004/38 confers on all nationals of non-member countries who are family members of a Union citizen within the meaning of point 2 of Article 2 … , and accompany or join the Union citizen in a Member State other than that of which he is a national, rights of entry into and residence in the host Member State, regardless of whether the national of a non-member country has already been lawfully resident in another Member State.”

“73. First, it is not all nationals of non-member countries who derive rights of entry into and residence in a Member State from Directive 2004/38, but only those who are family members, within the meaning of point 2 of Article 2 … , of a Union citizen who has exercised his right of freedom of movement by becoming established in a Member State other than the Member State of which he is a national.”

“92…. It makes no difference whether nationals of non-member countries who are family members of a Union citizen have entered the host Member State before or after becoming family members of that Union citizen, since the refusal of the host Member State to grant them a right of residence is equally liable to discourage that Union citizen from continuing to reside in the Member State.”

“There is … evidence of postal order payments by the spouse to the first appellant … They do not seem to date back for a period of five years when the first appellant was deemed to have moved to the sponsor’s house. I do however put weight on the claim that all of the sponsor’s family, including two sons and a daughter, are now living with him in the United Kingdom. This would lead to the conclusion that if the first appellant is divorced from her husband she has no other immediate family to turn to for financial support in India and that the sponsor is her source of financial support, and that she is, to a degree, dependent on him … I must look at all the evidence in the round and have concluded, on the balance of probabilities, that the first appellant is divorced and that she is dependent on the sponsor.”

“Mr Bigia said he sent money to them [ie daughter and granddaughter] from the UK whenever someone went to India, sometimes once a month or every other month and this would be £70 to £80 a time. The money was for bills, daily expenses and clothes. His daughter did not receive any other income. They lived on the ground floor in the property and they had electricity and running water.”