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Other Family Members issue referred to ECJ


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The Upper Tribunal has finally referred the vexed question of the rights of ‘other family members’ (or ‘extended family members’ in the domestic EEA regulations) to the European Court of Justice. The reference was made by Mr Justice Blake, the President of the Immigration and Asylum Chamber.

The questions are as follows:

1.           Does Article 3(2) of Directive 2004/38/EC require a Member State to make legislative provision to facilitate entry to and or residence in a Member State to the class of other family members who are not nationals of the European Union who can meet the requirements of Article 10(2)?

2.           Can such other family member referred to in Question 1 rely on the direct applicability of Article 3(2) of Directive 2004/38/EC in the event that he cannot comply with any requirements imposed by national legislative provisions?

3.           Is the class of other family members referred to in Article 3(2) and Article 10(2) of Directive 2004/38/EC limited to those who have resided in the same country as the Union national and his or her spouse, before the Union national came to the host state?

4.           Must any dependency referred to in Article 3(2) of Directive 2004/38/EC on which the other family member relies to secure entry to the host state be dependency that existed shortly before the Union citizen moved to the host state?

5.           Can a Member State impose particular requirements as to the nature or duration of dependency referred to in Article 3(2) of Directive 2004/38/EC by such other family member so as to prevent such dependency being contrived or unnecessary to enable a non national to be admitted to or continue to reside in its territory?

6.           Must the dependency on which the other family member relies in order to be admitted to the Member State continue for a period or indefinitely in the host state for a residence card to be issued or renewed pursuant to Article 10 of Directive 2004/38/EC and if so how should such dependency be demonstrated?

You can read for yourself the discussion in the case, MR and Others (EEA extended family members) Bangladesh [2010] UKUT 449 (IAC). The reference looks pretty comprehensive to me and covers everything from whether Article 3 imparts any directly enforceable rights at all to the effect of the reasoning in Metock.

I have to say, one wonders why on earth it has taken so long to make this reference, but thank goodness it has finally happened. It is also noteworthy that the immigration tribunal has accorded party status to an intervener, the AIRE Centre in this case. This is the first time I am aware of this occurring in the various incarnations of the immigration tribunal, if we ignore the dormant UNHCR intervention power in the procedure rules.

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The Free Movement blog was founded in 2007 by Colin Yeo, a barrister at Garden Court Chambers specialising in immigration law. The blog provides updates and commentary on immigration and asylum law by a variety of authors.


4 Responses

  1. Hi FM, I’ve got a OFM case with which this really helps. Waiting for a UT determination. If we need your expertise i’ll be in touch. Cheers for the above (yet again)! Thanks.

    1. Thanks. I used it myself in a set of grounds I just got knocked back on arguing that VN was wrongly decided.

  2. This is brilliant news. I am hopeful the answer to these question will be positive for OFM. It is positive news and i hope the ruling is expedited to prevent these misery. The UKBA are also of the view that Article 10(1) that demands a decision on the issue of Residence card be made within 6 months of application does not apply to OFM. Hopefully all of these will be addressed soon

  3. Would it not have been right for a judicial consideration to be undertaken on whether the UK is right to exclude OFM of British nationals, who were previously exercising treaty rights in another member state from the rights under Article 3(2) on return of the British national to the UK.