The Court of Appeal delivered the much-anticipated judgments in the cases of K & Ors v Minister for Justice 2014/990 and Khan & Ors v Minister for Justice 2018/43 on the 30th of July 2019.
The cases were related to the operation of the European Communities (Free Movement of Persons) (No. 2) Regulations 2006 (S.I. No. 656/2006) as amended transposing Directive 2004/38/EC on the Right of Citizens of the Union and their Family Members to Move and Reside Freely within the Territory of the Member States
(otherwise known as the Citizens Directive).
The decisions raise points of significant public importance and are of significant relevance to family members of EU nationals who have applied for residence cards or entry visas to enter and reside in the State as the dependent family members of EU nationals. It is also of relevance to family members who may have applied for visas and residence cards previously which have been refused and may wish to consider reapplying in light of the findings of the Court of Appeal.
The European Communities (Free Movement of Persons) Regulations 2015 (S.I. No. 548/2015) (“the 2015 Regulations”), came into effect in February 2016 thereby replacing the 2006 Regulations, however, the High Court Judicial Reviews in both of these matters were instituted prior to 2015. The judgements can therefore be taken to refer to the 2015 Regulations.
The questions before the Court of Appeal were essentially:
- The test to be applied in assessing the meaning of “qualifying family member” pursuant to the Citizens Directive
- The standard of proof to be applied when assessing whether a person is dependent
- The level of scrutiny and examination to be engaged by the decision maker.
Under the Citizens Directive a “Qualifying Family member” is a spouse, partner, direct descendant under the age of twenty-one, or direct descendant who is dependent and those of the spouse or partner, as the case may be. Dependant direct relatives in the ascending line are also included within the definition of “Qualfiying family member”, but only if they are dependent within the meaning of the Directive.
A “permitted family member’” is a person who is not is not a qualifying family member of the Union citizen, and who, in his or her country of origin, habitual residence or previous residence is “a dependant of the Union citizen”.
The court in its judgment dealt extensively with the definition of dependence which is not actually defined in the Citizenship Directive or the Free Movement of Persons Regulations. It summarised the test for dependence as follows:
81. The test for dependence is one of EU law and an applicant must show, in the light of his financial and social conditions, a real and not temporary dependence on a Union citizen. The financial needs must be for basic or essential needs of a material nature without which a person could not support himself or herself. A person does not have to be wholly dependent on the Union citizen to meet essential needs, but the needs actually met must be essential to life and the financial support must be more than merely “welcome” to use the language of Edwards J. in M. v. Minister for Justice, Equality and Law Reform  IEHC 500.
82. The concept of dependence is to be interpreted broadly and in the light of the perceived benefit of family unity and the principles of freedom of movement.
83. For the purposes of making the assessment, the proofs required, although remaining in the discretion of Member States, must not impose an excessively burdensome obligation on an applicant or impose too heavy a burden of proof or an excessive demand for the production of documentary evidence. The requested Member State must justify the refusal, and therefore must give reasons which explain and justify the refusal.
84. When the case law identifies the requirement that the dependence be “real”, this means that the dependence must be something of substance, support that is more than just fleeting or trifling, and support that must be proven, concrete, and factually established. However, the applicant does not have to establish that without the real of material assistance he or she would be living in conditions equivalent to destitution. Dependence may be for something more than help to sustain life at a subsistence level and no more.
85. What is to be assessed is whether a family member has a real need for financial assistance and not whether that person could survive without it. Thus stated, it is a test of the facts and not an interrogation of the reasons for the support.
The court went on to State:
98. The analysis of the ECJU does not propose a formula that is rigid or simple. The test has been explained in different ways, and a certain fluidity of language is apparent. The core concept, however, is that dependence means reliance on a Union citizen for some of the essentials of life. That reliance may be for financial help of a relatively small amount, but the concern is not to apply some quantitative test as to the amount of support actually provided, or to ask whether the support could be obtained by other means in the country of origin. Rather, the focus is on what is actually provided by way of financial assistance and whether that is for some of the essentials of life. It is difficult, in those circumstances, to formulate a test with precision, and that is more especially so when, as here, the trial judge came to his conclusion on “reason” grounds and his observations regarding the correct formulation of the test were obiter.
111. I do not accept that it is necessarily the case that a test stated in the negative that requires an applicant to show that it was impossible to live without support from a Union citizen family member is the same as a more positively expressed test which asks whether a person needs support to meet their essential needs. The test stated in the negative imposes a burden which is more onerous than that justified in the light of the authorities of the CJEU analysed above.
112. I consider that Faherty J. was correct that the approach of the Minister was unduly restrictive and that the test applied by the Minister was not in accordance with the jurisprudence of the CJEU. I can find no error in her approach to the facts or in her analysis of the basis on which the application was refused.
In summary the court held that there is no distinction between the test for dependency for “Qualifying Family Members” and “Permitted Family Members” and therefore the same test should be applied when assessing the issue of dependency in residence card and visa applications for family members of EU nationals.
The court also held that the appropriate test when assessing dependency is whether the support given by the EU citizen is essential to meet the family members essential needs and not whether that person could not survive without it.
If you have been refused a visa to enter the State or a residence card as the dependent family member of an EU national or would like to discuss a future application, do not hesitate to contact our Immigration Department today on 0035314062862 or firstname.lastname@example.org.