The Legal 500

The right of freedom of movement for persons is fundamental to European integration, which is itself the underpinning of the success of the EU. The right is cemented by Articles 2 and 3(1)(c) of the EC Treaty which provide that for the purpose of establishing a common market and the promotion of harmonious development of economic activities between member states, obstacles to the free movement of persons between member states shall be abolished.

It is a truism that the right of freedom of movement for persons cannot be fully enjoyed by EEA citizens if it does not extend to their family members. Community law has always recognised the importance of family life when considering the ambit of free movement provisions. It acknowledges that if the right was not extended to family members, EEA nationals would be prevented from exercising their free movement rights (Council Regulation 1612/68, Article 10(1) includes the right of EU national workers to install their family members in the member state in which they are residing).

The ECJ

In its pursuit of the eradication of hurdles preventing the exercise of the right of freedom of movement of persons as guaranteed by the EC Treaty, the European Court of Justice (ECJ) has always advocated the protection of family life of EEA nationals. The ECJ has given a number of judgments in recent years, which, as a whole, tend to support this principle.

Carpenter v Secretary of State for the Home Department

In the case of Carpenter v Secretary of State for the Home Department, the Court considered whether the spouse of a service provider, residing in one member state but providing services in other member states, qualified as the spouse of a Community national exercising his right of free movement. The Home Office had issued a deportation order against Mary Carpenter, a national of the Philippines who had overstayed the period of validity of her tourist visa and subsequently married a UK national. Mr Carpenter's business sold advertising space and offered various administrative and publishing services. A large proportion of the business's clientele were advertisers established in other member states. As a result Mr Carpenter frequently travelled to those states on business.

Having taken the view that Mr Carpenter's activities came within the ambit of Article 49 EC, the Court considered that if Mrs Carpenter was deported, her husband would have to relocate to the Philippines which would prevent him from exercising his right. When considering whether a restriction on Mr Carpenter's freedom to provide services could be justified, the Court bore in mind its effect on his right to respect for his family life within the meaning of Article 8 of the European Convention on Human Rights. On 11 July 2002 the Court ruled the separation of Mr and Mrs Carpenter would be detrimental to their family life and, therefore, to the conditions under which Mr Carpenter exercises his freedom to provide services. The Court emphasised the need for proportionality and held that the decision to deport Mrs Carpenter, therefore, constituted an infringement, which could not be justified by invoking the protection and maintenance of public order and security.

MRAX v Belgian state

In the case of Mouvement contre le racisme, l'antisemitisme and la xenophobia ASBL (MRAX) v Belgian state , the Court reaffirmed the importance of protecting the family life of Community nationals to whom the Community legislation on freedom of movement applies. MRAX applied to the Belgian Conseil d'État (Council of State) for annulment of a 1997 circular of the Ministers for the Interior and for Justice relating to obtaining a visa for the purpose of contracting a marriage in Belgium or of reuniting a family on the basis of a marriage contracted abroad. MRAX maintained that the circular was incompatible with the Community directives on movement and residence within the Community. The Council referred the case to the ECJ, asking whether a member state could:

• refuse entry to third-country nationals married to a Community citizen who failed to produce valid ID and, if necessary, a visa; and
• withhold a residence permit and expel them if their visa has expired or they initially entered the member state unlawfully.

In this judgment the Court focused essentially on the rights enjoyed by third-country nationals who are married to Community citizens making use of their freedom of movement as workers, freedom of establishment or freedom to provide services. On 25 July 2002, the Court agreed with MRAX and found that the right to enter the territory of a member state by a third-country national who is the spouse of a national of the EU derives from the family relationship alone. In its judgment the Court ruled that:

‘... a member state may not send back at the border a third-country national who is married to a national of a member state and attempts to enter its territory without being in possession of a valid identity card or passport or, if necessary, a visa, where he is able to prove his identity and the conjugal ties and there is no evidence to establish that he represents a risk to the requirements of public policy, public security or public health within the meaning of Article 10 of Directive 68/360 and Article 8 of Directive 73/148.'

The Court also found that a member state could not refuse to issue a residence permit to a third-country national married to a national of a member state who entered the territory of that member state lawfully, nor issue an order expelling them from the territory, on the sole ground that their visa expired before they applied for a residence permit.

Article 5(4) of the Citizens' Directive 2004/38 supports the ECJ's decision in MRAX by making it clear that Union citizens and their family members who fail to produce the necessary documentation (ie valid passports or visas) at the border may not be turned away without being given a ‘reasonable' opportunity to produce such documents or ‘prove by other means' that they are covered by free movement provisions.

Secretary of State for Home Department v Hacene Akrich

The trend set by Carpenter and MRAX was, however, subsequently undermined in Secretary of State for Home Department v Hacene Akrich. In this case the ECJ was asked what measures the member states were entitled to take in order to combat steps taken by members of the family of a Community national who did not meet the conditions laid down by national law for entry and residence in a member state. Mr Akrich, a Moroccan national married to a UK national, had been unlawfully residing in the UK. He had agreed to be deported to Ireland, where he joined his wife, who had relocated there shortly before his deportation. After having worked in Ireland for six months, the couple attempted to return to the UK, trying to circumvent the UK immigration rules by invoking the rights granted to spouses of Community workers by Article 10 of Regulation N0 1612/68, as interpreted by the Court in Ex parte Surinder Singh.

The Court found that to benefit from the rights provided for in Article 10 above, the third-country national married to a citizen of the Community must be lawfully resident in a member state when they move to another member state to which the EEA national is migrating or has migrated. The Court did, however, point out that where the marriage was genuine, in deciding on whether to admit the third-country national, despite their unlawful status under the member state's immigration law, respect for family life under Article 8 of the European Convention on Human Rights should be taken into account. The Court's reticent approach left it to the national court to decide.

Commission v Spain

This decision was subsequently ignored in Commission v Spain. The proceedings originated from two complaints submitted to the Commission by Community nationals exercising the right of freedom of movement conferred on them by the EC Treaty, whose spouses were refused a residence permit in Spain. The reason given was that they should first have applied for a residence visa at the Spanish consulate in their last country of domicile.

The Court reverted back to the approach followed in Carpenter and MRAX and held that a residence visa requirement imposed by Spanish legislation as a precondition for obtaining a residence permit and a refusal to issue such a permit to a third-country national who is a member of the family of a national of the EU, on the ground that they should first have obtained a residence visa from the Spanish consulate in their country of domicile, constituted a measure contrary to the provisions of Directives 68/360, 73/148 and 90/365. At paragraph 38 of the judgment, the Court reiterated that the right to enter the territory of a member state by a third-country national who is the spouse of a national of a member state derives from the family relationship alone.

Jia v Migrationsverket

The divergent approaches in Carpenter, MRAX and Commission v Spain on the one hand and Akrich on the other hand have left the case law in disarray. The apparent contradiction results in a level of uncertainty, which makes advising on the rights of EEA nationals and their non-EEA national family members a very hazardous task.

In light of these dissenting opinions, the Court was recently asked in the case of Jia v Migrationsverket, to interpret the Council Directive 73/148/EEC of 21 May 1973 on the abolition of restrictions on movement and residence within the Community for nationals of member states with regard to establishment and the provision of services and of Article 43 EC.

In this case, the son of Ms Jia, Mr Shenzhi Li, a Chinese national, had been resident in Sweden with his wife, Ms Svanja Schallehn, a German national, since 1995. Ms Schallehn was self-employed in Sweden and held a residence permit as a national of a member state. Mr Shenzhi Li held a residence permit as the spouse of an EEA national in line with his wife's leave. Ms Jia was issued a 90-day single-entry visitor visa by the Swedish Embassy in 2003. She travelled to Sweden, where she subsequently applied to Migrationsverket for a residence permit, on the basis that she was a family member of an EEA national. Ms Jia argued that she and her husband, Mr Yupu, lived in very dire circumstances in China and would not be able to support themselves without the financial assistance from their son and his wife. In support of her application, Ms Jia produced evidence of her relationship to her son and a certificate from her previous employer stating that she was financially dependent on her son and his wife.

The Migrationsverket rejected Ms Jia's application on the ground that she had not provided sufficient evidence of her financial dependence on her son and his wife, and ordered her deportation. She subsequently appealed against the decision.

The Utlanningsnamnden (Alien Appeals Board) referred a number of questions to the ECJ for preliminary ruling, asking, inter alia, whether Community law, in the light of the judgment in Akrich, required member states to make the grant of a residence permit to a national of a non-member state, who was a member of the family of a Community national who had exercised their right of free movement, subject to the condition that that family member had previously been lawfully resident in another member state.

Referring to Akrich, the Court found that no such requirement followed from Community law. To the Utlannigsnamnden's question on the meaning of ‘dependency' within the context of Community Law and on how it could be adduced, the Court responded that in line with Directive 73/148:

‘... members of the family of a Community national established in another member state, need the material support of that Community national or his or her spouse in order to meet their essential needs in the State of origin of those family members or the State from which they had come at the time when they applied to join that Community national.'

The Court argued that Article 6(b) of that Directive must be interpreted as meaning that proof of the need for material support might be evidenced by any appropriate means, and that an undertaking from the Community national or their spouse to support the family members concerned may not suffice to establish the existence of the family members' real material dependence and additional supporting documents may be required.

Unfortunately, whilst the case has brought some clarification on what dependency means for third-country national family members of EEA nationals, and rebutted the suggestion by the UK government that family members only benefit from Community law if they have previously resided lawfully in another member state, the question as to which rules apply on first admission to the EEA remains unanswered. The Court seems to have left if to the member states to decide on whether to be restrictive or take a more tolerant, non-interventionist approach. Unfortunately, the current political climate is not propitious towards tolerance when it comes to immigration matters and, given the choice, member states will opt for control.

The UK's stance

As Jai has not brought any clarifications as to whether a third-country national must first be legally admitted to a member state before they can enjoy rights of abode under EC law in another member state, the UK authorities have indicated they will continue applying the restrictive interpretation of the Akrich judgment. Indeed, contrary to the progressive trend set by Carpenter and MRAX, and Article 5(4) of the Citizens' Directive 2004/38, the Immigration (EEA) Regulations 2006 12(1)(b)(i) and (ii), and the European Directorate Instructions appear to make the admission of non-EEA family members to the UK conditional upon them being able to show that either they have resided lawfully in another member state with the EEA national or that they meet the UK domestic immigration rules if they are travelling from outside the Community.

Regulations 12(2) requires those family members who are already residing lawfully in an EEA state to obtain an EEA family permit despite them being exempted from doing so by Article 5(2) of the Citizens' Directive.

Regulation 16, which transposes Article 8 accurately providing that EEA family members are entitled to registration certificates immediately on application, is not applied in practice since family members cannot attend the Home Office public enquiry office to request their certificate and must do so by mail.

The juxtaposed borders controls carried out by the UK immigration officials in Belgium and France are contrary to Article 2 of Directive 68/360/EEC because third-country national family members of EEA citizens may be prohibited from leaving Belgian and French territories if refused entry to the UK.

Although the Home Office applies flexible procedures when processing residence permit applications by permitting applicants to submit applications without their passports in order to facilitate their travel, there is a clear discrimination against EEA nationals and their family members as they are expressly disallowed from entering the fast-track service where such documents could be issued in one day rather than six months.

Almost 40 years after Regulation 1612/68 entered into force, family members of EU nationals migrating to the UK are still today confronted in many respects with the same obstacles. Although some progress has been made, several fundamental issues remain to be addressed and resolved.

By Delphine Dervin, solicitor, Magrath & Co.

E-mail delphine.dervin@magrath.co.uk.

Carpenter v Secretary of State for the Home Department [2002] ECR I-6279

Mouvement contre le racisme, l'antisemitisme and la xenophobia ASBL (MRAX) v Belgian state [2002] ECR I-6591

Secretary of State for Home Department v Hacene Akrich [2003] ECR I-9607

Ex parte Surinder Singh [1992] ECR I-42650

Commission v Spain [2005] ECR I-2911

Jia v Migrationsverket [2007] WLR (D) 1

For more information please visit www.magrath.co.uk.