Advocate General Bot has given his Opinion in the case referred to the Court of Justice of the European Union by President Mr Justice Blake. I have already flagged the new Opinion up on the blog but at the time had not had an opportunity to read it. That situation has now been rectified.

For those unfamiliar with the procedure, an Opinion precedes a judgment and the judgment usually follows the Opinion, at least in outcome if not in reasons.

The Advocate General advocates a middle ground position in terms of the obligation imposed on Member States by Article 3(2) of the Directive, but suggests that the Article must impose some sort of binding obligation and is not merely permissive:

In the minds of those who drafted it, that provision was therefore certainly conceived as a provision not in the order of wishful thinking, but, on the contrary, as a provision binding on the Member States, whatever the extent of the latitude which they are allowed … I accordingly take the view that Article 3(2) of Directive 2004/38 does not merely offer the Member States a possibility, but imposes on them an actual obligation to adopt the measures necessary to facilitate entry and residence for persons coming within the scope of that provision. The substance and precise scope of that obligation still remain to be determined.

On the question of whether the obligation is a procedural one of simply offering ‘extensive examination’ of an application or whether there is a presumption of admission, Bot prefers the procedural approach:

I do not share the view taken by the AIRE Centre to the effect that other family members benefit from a presumption of admission. First of all, the requirement of a dependency on the Union citizen laid down by Article 3(2)(a) of Directive 2004/38 seems to me to constitute, not a presumption, but a precondition for the applicability of that provision. Second, recognition of a presumption of admission stemming directly from that directive appears to me to be at variance with the reference to the law of the Member States for the purpose of defining the conditions for obtaining the right of entry and residence implied by the clause ‘in accordance with its national legislation’.

He goes on to argue that the Article permits Member States ‘enormous latitude’ and requires ‘only a certain degree of harmonisation by means of a measure containing only minimum requirements’. Nevertheless, ‘[t]his does not mean that Member States have unfettered freedom to facilitate, as they wish, entry and residence for persons coming within the scope of that provision.’

More positively, Bot suggests that additional qualifying criteria beyond those stated in the Article cannot be imposed, such as a requirement of a registered partnership or relationship akin to marriage in respect of a ‘durable relationship’. Later in the Opinion he also states that the additional imposition of a requirement of compatibility with national legislative provisions is incompatible with the Directive and that the Directive may be relied on as being directly effective.

Bot goes on to endorse the Metock approach to regularisation of illegal status within the territory, a point already conceded by the UK Government in the Bigia [2009] EWCA Civ 79 case.

He considers the ramifications of Zambrano, McCarthy and Dereci and the notion of EU Citizenship, concluding:

The combination of the right of residence attached to Union citizenship and protection of private and family life, as implemented by EU law, may therefore effectively establish a right of residence for members of the family of the Union citizen … I conclude that the fundamental right to private and family life may, in principle, be relied on by all categories of persons mentioned in Article 3(2) of Directive 2004/38.

That is not to say that such cases must succeed on this basis, but that residence must not be refused ‘where such refusal has the effect of unjustifiably impeding the exercise of the right of the Union citizen concerned to move and reside freely within the territory of the Member States or causes a disproportionate impairment of his right to respect for private and family life.’

On the question of whether dependents or members of household need establish immediate prior shared residence in another EU Member State, Bot opines thus:

Whilst it would seem self-evident that family members who declare themselves to be members of the household of a Union citizen must prove that they reside with the Union citizen, and thus necessarily in the same State, I take the view, conversely, that ‘dependent’ family members cannot be excluded from the scope of Article 3(2)(a) of Directive 2004/38 on the ground that they have not resided in the same State as the Union citizen whom they wish to accompany or join. This view is based on reasons relating to the wording of the provisions of the directive and its purpose, and to the case-law of the Court.

He accepts that there must be dependency in the state of origin but goes on to suggest that it is also impermissible to require that the dependency be recent:

Nor does there appear to be anything to justify a requirement that the situation of dependency must have existed shortly before the Union citizen moved to the host Member State, when the relevant criterion is the time at which the application for entry and residence is made. If the dependency existed at the time of settlement in the host Member State, but has been interrupted since then, the condition laid down by Article 3(2) of Directive 2004/38 will not be satisfied. If, on the other hand, the situation of dependency arises after the Union citizen enters the host Member State, the family member may be regarded as being ‘dependent’. This could be the case, for example, for a Union citizen who, after exercising his right of free movement, is required to care for a nephew whose parents have recently died.

Finally, Bot accepts that national legislation may set criteria for issues such as dependency:

I take the view that Article 3(2)(a) of Directive 2004/38 does not preclude national legislation which makes entry and residence for a national of a non-member country subject to conditions as to the nature or duration of dependency, provided that those conditions pursue a legitimate objective, are appropriate for securing the attainment of that objective and do not go beyond what is necessary to attain it.

Personally I find this final conclusion impossible to reconcile with the earlier conclusion that, for example, it is not permissible further to define or restrict the term ‘durable relationship’, but perhaps I am missing something.

The immigration tribunal and the courts have until recently taken a hardcore conservative line on other family members, and it looks like they were wrong to do so. Things have moved on though, and the most recent cases on this subject, Moneke and others (EEA – OFMs) Nigeria [2011] UKUT 341 (IAC) and Dauhoo (EEA Regulations – reg 8(2)) [2012] UKUT 79 (IAC), seem to be pretty much consistent with Bot’s Opinion.

It would be refreshing to live to see the tribunal erring on the side of liberality.