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CJEU: Dependency is a question of fact

In a new judgment in the case of Reyes v Sweden [2014] EUECJ C-423/12 (BAILII link) the Court of Justice of the European Union has addressed the question of whether a dependent family member must be involuntarily dependent in order to qualify for free movement rights and how far a person’s capacity and intention to work after arrival is relevant to the question of dependency.

The answers are essentially that the reason for past dependency does not matter as long as the dependency is real and that capacity or intention to work in future in the Member State is not relevant. Importantly, the dependent need not 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 and remittances on which the person in fact previously subsisted is sufficient to establish past dependency.

Facts of the case

Ms Reyes was a national of the Philippines born in 1987 and therefore aged 26. Her mother was married to a citizen of Norway who was living in Sweden. Ms Reyes’ stepfather regularly remitted money to the Philippines to support Ms Reyes. He then sponsored Ms Reyes for a residence permit under Article 2 of the Citizens Directive, which includes in the definition of ‘family member’:

the direct descendants [of a Union citizen or his or her spouse] who are under the age of 21 or are dependants

It can be seen that, being over the age of 21, Ms Reyes needed to demonstrate that she was dependent on her mother or stepfather. She had never worked and never attempted to claim benefits in the Philippines but had trained as a nurse.

The Swedish authorities took the view that she had not established past dependency:

she had not proved that the money which was indisputably transferred to her by her mother and her partner had been used to supply her basic needs in the form of board and lodging and access to healthcare in the Philippines. Nor had she shown how her home country’s social insurance and security system could cover a citizen in her situation. However, she did show that she held qualifications from her country of origin and that she had also carried out work experience there. Furthermore, the applicant in the main proceedings had been economically dependent on her grandmother throughout her childhood and adolescence. In consequence, the Migrationsverket took the view that she had failed to prove economic dependence as regards her family members in Sweden.

On appeal within Sweden it was found that while the basic needs of Ms Reyes were met by her stepfather, she could if she needed to support herself. At appeal the issue was also raised of whether future work that Ms Reyes might undertake meant that she could not be considered a real dependent on entry to Sweden. The case then proceeded to the Court of Justice.

Legal outcome

The two formal questions to be addressed by the Court were:

whether Article 2(2)(c) of Directive 2004/38 is to be interpreted as permitting a Member State to require, in circumstances such as those in question in the main proceedings, that, in order to be regarded as being dependent and thus to come within the definition of ‘family member’ set out in that provision, a direct descendant who is 21 years old or older must show that he has tried without success to find employment or to obtain subsistence support from the authorities of the country of origin and/or otherwise tried to support himself.

and

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.

The Court answers as follows:

1. Article 2(2)(c) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States … 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.

2. 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’.

The Court noted that dependency has to be ‘real’ (the case of Jia [2007] EUECJ C-1/05). The court however emphasised that:

there is no need to determine the reasons for that dependence or therefore for the recourse to that support (para 23)

and

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 (para 24)

Comment

The case is a welcome one for simplifying the process of applying for a residence permit as a dependent child. All that need be shown is the fact of past remittances.

Further, the Court holds that future work in the Member State granting the residence permit does not render the person ineligible for that permit. This seems to deal with the potential problem that might arise for a dependent who enters the Member State, starts working and thus arguably renders themselves self sufficient rather than dependent. It might be thought that such a person could have their residence permit revoked, based on the approach of the Court in the Dias [2011] EUECJ C-325/09 case. Reyes does not seem to allow for that to occur but the issue is not dealt with definitively.

As a final aside, the case is not the same case of Reyes (EEA Regs: dependency) [2013] UKUT 314 (IAC) that was referred to the CJEU by our own Upper Tribunal. It seems to be a different case with the same name raising exactly the same issue.

Postscript: After finishing writing this post I came across this very good post also on Reyes by Catherine Taroni. A bit pithier than mine.

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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