Free movement of extended family members

Extended family members are defined by Regulation 8. There has been much litigation on the meaning of extended family members and the legality of the Regulations in relation to this category.

Procedure

Regulation 8(2)(a) states that person is an extended family member if ‘the person is residing in an EEA State in which the EEA national also resides and is dependent upon the EEA national or is a member of his household’. In RG (EEA Regulations – extended family members) Sri Lanka [2007] UKAIT 00034, the appellant was claiming to be dependent on his brother who had Swiss nationality and was in the UK in accordance with the Regulations. The Tribunal found that ‘residing in an EEA State ’ did not include the UK , as the UK is specifically excluded as an EEA State under the Regulations in Regulation 2. Strangely, the Tribunal concentrated on the appellant’s right to a family permit, which is only applicable to family members who are outside the UK , and understandably concluded that he was not entitled to one as he was not outside the UK !

A further interesting point from the case is that the Tribunal found that a person who has entitlement to use the EEA Regulations has no entitlement to use the Directive itself unless they are an EU national. There is no ‘direct effect’ for non-EU nationals. Therefore nationals of Norway , Iceland , Liechtenstein or Switzerland are not entitled to rely on the Directive and must derive their rights only from the Regulations (and any other agreements that exist between the EU or UK and those particular countries).

Use of National Legislation

In describing the rights of ‘extended family members’, the Directive states at Article 3(2) that extended family members’ (or ‘beneficiaries’ as they are referred to in the Directive) entry to the host country shall be facilitated ‘in accordance with its national legislation’.

The Secretary of State has interpreted this to mean, broadly, that extended family members must meet the UK Immigration Rules. That interpretation has been approved by the Tribunal in AP and FP (Citizens Directive Article 3(2); discretion; dependence) India [2007 UKAIT 00048, where the Tribunal, without hesitation, found that extended family members come under domestic legislation.

The decision of the Tribunal that extended family members must come under domestic law was challenged in AK (Citizens Directive; AP and FP applied) Sri Lanka [2007] UKAIT 00074. Despite a 43 paragraph determination, the Tribunal came to the conclusion, simply put, that the decision in AP and FP is correct.

Residence Documentation

Not all the Tribunals’ decisions have gone the ‘wrong way’ for family members and extended family members. Regulation 12 describes in which circumstances a family permit should be issued to a family / extended family member. Regulation 12(b) states that the family member must be lawfully resident in an EEA State or would meet the requirements of the domestic immigration rules. However, in CO (Nigeria) [2007] UKAIT 00070, the Tribunal found that, in essence, obtaining a family permit was ‘optional’ as the Regulations say that a family permit entitles the bearer to entry into the UK, but the Regulations do not say that a person has to have a family permit to be admitted. The Tribunal derived confidence in that finding from Regulation 11(4), which states that before a person is refused admission due to not having a family permit, ‘the immigration officer must give the person every reasonable opportunity to obtain the document or have it brought to him within a reasonable period of time or prove by any other means…’ .

Discretion

The Regulations give the Secretary of State discretion to issue a residence card to an extended family member in Regulation 17(4)(b). It states that a residence card should be issued if (amongst other criteria) ‘in all the circumstances it appears to the Secretary of State appropriate to issue the residence card’. In FD (EEA discretion: basis of appeal) Algeria [2007] UKAIT 00049, the Tribunal found that an immigration judge is entitled to consider whether the discretion should have been exercised differently and is not restricted to examining whether the decision in exercising the discretion is a lawful one. In practise, this decision means that an immigration judge is entitled, on appeal, to substitute his / her own decision in place of the Secretary of State’s.

In UK law, EEA rights are expressed by the Immigration (European Economic Area) Regulations 2006. These are supposed to implement the changes to EC free movement law that were introduced by the Citizens’ Directive. However, directly effective EC law will trump any provision contrary to its strictures – so if the Regulations are more restrictive than the principles they supposedly enshrine, then it is the EC law principles which will triumph.

In cases of doubt over the proper interpretation of EEA provisions, then UK courts (including the AIT) can make a reference to the European Court of Justice to seek clarification.

The predecessor regulations to the current 2006 ones, introduced in 2000, were very heavily amended by the time they were superseded, as a number of successful challenges to them in the European Court of Justice had forced the UK government to make various changes. However, for most practical purposes, the current 2006 regulations provide a decent exposition of the way that the British government gives access to Treaty rights for the three categories of individual that benefits from Community law – (1) “qualified persons”, usually being the EU nationals themselves, (2) their family members, and (3) those relatives who are dependant on them and were previously part of their households.

Although the Directive refers to ‘citizens’ of the EU, it preserves the general distinction between different classes of migrant pre-existing in EU law. Thus economically active persons and self-sufficient persons are favoured over others. This presents some interesting challenges because, whilst the Directive was being debated in various EU institutions, the European Court was busy creating a body of case law which moved towards a more powerful notion of common EU citizenship, divorced from economic status. The draft Directive was amended to reflect some of this, but not all.

There is therefore a conflict between the Directive’s insistence on different classes of citizens and the ECJ’s more expansive concept of EU citizenship in cases like Collins and Baumbast. The ECJ had moved towards the idea that even economically inactive persons who were not self-sufficient might gain rights to be treated equally through Art 12 and 17/18 of the European Community Treaty. The Court also moved tentatively towards suggesting that expulsion of inactive persons should be proportionate (or at least that recourse to public funds could not of itself automatically justify such measures in cases such as Trojani and Gryzelcyck. Practitioners should be aware of this and the fact that the more generous ECJ case law based upon the Treaty is in orthodox terms ‘superior’ to the Directive. The ECJ may yet have to resolve these conflicts and could seek to interpret the Directive expansively in line with its case-law.